2007 PLP 2484 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

This judgment will dispose of Criminal Jail Appeal No.258 of 2003 and Criminal Revision Applications Nos.87 and 95 of 2003 as they arise out of common judgment.

2. Brief facts giving rise to the present appeal and revision applications are that on 27-7-1997 the accused Mureed Abbas and Sahib Dad were found coming out from the house of Mst. Zarina and Mst. Nasreen Bano, relative of the complainant. The deceased Nasir Khan told Mureed Abbas and Sahib Dad that they should not come in the house of the above named ladies on which both the ladies came out from the house, armed with pistols and told Mureed Abbas and Sahib Dad to kill the deceased Nasir Khan on which the deceased was attacked but because of intervention of Fateh Khan, Iqbal, Yasin and other persons they were saved. As such, the appellant Mureed Abbas and Sahib Dad went away issuing threats to the deceased that he was saved on that date but in future they would kill him. 3.. With the above background the complainant alleged that on 11-8-1997 at 9-30 p.m. _ he along with his nephew deceased Nasir Khan, Kashmir Khan and Dalel Khan were taking tea in Al-Fayyaz Parvaiz Hotel/Restaurant situated in Mianwali. The appellant Mureed Abbas and complainant Abdul Khaliq, who were police constables, were also taking tea on a nearby table. They were in police uniform and were armed with official weapons. The complainant got up and went towards counter for making payment. At the sametime appellant Mureed Abbas and acquitted accused Abdul Khaliq also came at the counter for payment. While the payment was going on deceased Nasir Khan and Kashmir Khan inquired from appellant Mureed Abbas as to why they had come, in spite of the fact that they were restrained from coming in the locality, on which the appellant and co-accused replied that they were posted at Police Station Pak Colony and they had come in connection with their official duty. On hearing the above reply, deceased Nasir Khan asked Wasil Khan, owner of the restaurant to make inquiry from Pak ' Colony Police Station as to whether the appellants were posted there and were performing their official duty. On hearing the above fact, co-accused Abdul Khaliq instigated the appellant Mureed Abbas to kill the d, ceased Nasir Khan as he had got the cha ir, to do so. On the said instigation, the appellant Mureed Abbas, after taking fc,v steps back started firing from his weapon at deceased Nasir Khan, Kashmir Khan and Dalel Khan. They received injuries, therefore; they fell down on the ground and died there. Whereas P.W. Muhammad Amin received injuries. Then the accused ran away leaving behind their motorcycle. The complainant alleged that the incident was witnessed by P.Ws. Muhammad Ashraf, Muhammad Aslam, Bahawal Khan and restaurant owner Wasil Khan. After the incident the deceased and injured were shifted to hospital. The complainant went to police station where he lodged the report.

4. The police, after usual investigation, securing crime weapons and empties from the place of incident, which were sent to Ballistic Expert for examination and report, the report was in positive, challaned the accused in the Court.

5. The learned 1st Special Judge, STA Karachi West tried the appellant and co-accused, acquitted the co-accused Abdul Khaliq whereas convicted the appellant for offence, punishable under section 302(b), P.P.C. and sentenced him to suffer imprisonment for life and fine of Rs.200,000 which was directed to be paid to the legal heirs of the deceased or in default thereof to suffer RI for 5 years under the impugned judgment dated 14-6-2003.

6. We have heard the Advocates for the appellant, complainant, A.A.-G. for the state and perused the record of this case very carefully.

7. The learned Advocate for the appellant has stated that the motive alleged by the prosecution has not been proved; that the trial Court has also formed similar view; that the ocular testimony is not worth relying; that the incident took place due to scuffle between the complainant party and the appellant; and that the SMG of the appellant fired accidentally due to the said scuffle. As such, the appellant has not committed any offence. Alternatively, he has argued that if the Court finds that the appellant has committed the offence then due to above circumstances capital punishment may not be awarded.

8. Conversely, the learned A.A.-G. has stated that the prosecution witnesses have fully supported the case; that the appellant has admitted that the deceased received injuries from the weapon which he was holding; and that the medical evidence has supported the ocular testimony. As such the case of murder has been made out, therefore, the sentence may be enhanced. The learned Advocate for the complainanthas adopted the arguments of the learned A.A.-G.

9. In order to prove the case the prosecution relied upon the motive, ocular testimony, recoveries and admission of the appellant.

10. As regards the motive the trial Court, after examining the evidence of complainant and P.W.6 formed the opinion' that the prosecution was not able to prove the motive. We have examined the evidence and found that on the point of motive the prosecution relied upon the evidence of P.W. 1 complainant Ayaz Khan and P.W.6 Fateh Khan. The evidence of complainant shows that he was not present when the first incident took place on 27-7-1997 in which it was alleged that the appellant and his companion Sahib Dad had tried to kill the deceased Nasir Khan but he was saved due to intervention of Fateh Khan, Iqbal and Yasin and then he issued the threats. Thus the evidence of the complainant on the said aspect of the case is hearsay evidence. He did not state that such facts were told to him by any particular person or that the said person was examined by the prosecution. As regards the eviden se of P.W.6 Fateh Khan he alleged that h as present in the incident and had moveu an application to the S.H.O. Pak Colony Police Station which he produced as Exh.34/A. A perusal of the said application reveals that it was filed against unknown persons, therefore, it is not supporting the statement of P.W.6 with regard to the nomination of the appellant in respect of said incident. Furthermore, the applicant does not bear the endorsement of police station. The police officers of Pak Colony police station were examined but they did not state that they received any such application from the P.W.6. As such, the prosecution has failed to establish specific motive alleged in the incident. The finding I of the trial Court is hereby confirmed.

11. As regards the ocular testimony the prosecution relied upon the statement of P.W. complainant Ayaz Khan; P.W.2 Wasil Khan, owner of the restaurant; t P.W.3 Muhammad Ashraf; and P.W.4 Bahawal. They gaare the same details of the incident as mentioned in the earlier part of the judgment, however, they specifically stated that when the deceased Nasir Khan told P.W.2 to inquire from the Pak Colony police station about the official duties of the appellant and co-accused then the appellant, on the instigation of co-accused, fired at the deceased with the result that deceased 'Nasir Khan alias Muhammad Khan, Dalcl Khan and Kashmir Khan received injuries. Their evidence is corroborated by the medical evidence as according to the medical officer all the three deceased received fire-arm injuries but he did not find any blackening or charring around the wounds of the deceased which clearly establishes the fact that they were fired upon from a distance and that the deceased had received injuries from the back.

12. In the cross-examination to the witnesses the defence took the plea that a scuffle took place between the deceased and the appellant Mureed Abbas, therefore, due to said scuffle the weapon which was in the hands of appellant was fired and the deceased had received injuries but the witnesses had denied the same. The appellant, in his statement recorded under section 342, Cr.P.C., took the similar plea and stated as under:-- "I am innocent. I had gone to the hotel and after taking tea I' and co-accused Abdul Khaliq were making payment on the counter when all the three deceased and their companions Wasil, Muhammad Ashraf, Bahawal, prosecution witnesses and their companions whose name I do not know asked me as to why I had come to the hotel, and they attacked me as a result my shoulder pips, cap and watch had fell on the ground, and when they tried to snatch my service K.K. trigger was pressed. I did not kill the deceased intentionally."

13. From the above statement it is clear that the accused has admitted all the main aspects of incident, His plea was that due to attack from the side of deceased persons the weapon was fired but this plea is not supported and corroborated by the medical evidence as if during scuffle the weapon was fired then the deceased would have received injuries from a very close range, therefore, blackening and charring would have been present around the wounds but the medical officer did not find blackening around the wounds of any of the deceased persons. Furthermore, the deceased had received injuries on their backs which clearly demonstrates that the deceased were not facing towards the appellant and were at some distance when they were fired upon. As such, the plea taken by the appellant has not been proved from the evidence available on record. Furthermore, the appellant did not examine himself on oath or examined any witness to prove such assertions. As such, the appellant has failed to prove the allegation made by him. From the ocular testimony and admission of the appellant it has been established beyond any shadow of doubt that the deceased had received injuries from the hands of the appellant.

14. As regards the recovery, the appellant had admitted that from the weapon which he was holding at the time of incident the shots were fired and the deceased had received injuries. The said weapon belonged to acquitted accused Abdul Khaliq as. it was issued to him. As such, it was upon the appellant to show as to how he came in possession of the weapon of co-accused. Such fact was within his exclusive knowledge, therefore, he was required to prove the said fact as required under Article 122 of Qanun-e-Shahadat Order, 1984 but he has failed to prove such fact. The weapon and crime empties secured from the place of incident were sent to Ballistic Expert whose report is in positive, as such, the prosecution has proved the recoveries.

15. As regards the sentence, it is pointed out that the prosecution had specifically alleged that the incident had taken place due to earlier incident, which took place on 27-7-1997 but the prosecution F has failed to prove such motive. Furthermore, the incident took place suddenly without pre-planning or premeditation. It is admitted fact that deceased and the appellant were sitting in the restaurant. If they had planned to commit the murder of the deceased they could have done so earlier but after taking tea they were going out of the restaurant and the incident occurred when the deceased Nasir Khan inquired from the appellant about their presence in the restaurant and asked P.W.2 to inquire from the police station. As such, the incident took place due to the said conversation and at the spur of moment. Hence these are the mitigating circumstances where the lesser sentence can be awarded to the appellant. The Honourable Supreme Court of Pakistan in the case of Jehanzeb v. State (2003 SCMR 98) reduced the sentence when the prosecution failed to prove the motive. As such, the case is not such where extreme punishment of death should be awarded to the appellant.

16. As regards the sentence of fine the provisions of section 302(b), P.P.C. do not provide such sentence, therefore, the trial, Court was not justified in awarding such sentence or in default thereof to suffer RI for 5 years. As such, the said sentence is set aside. However, we direct that the appellant shall pay Rs.200,000 as compensation to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. or in default thereof to suffer RI for 6 months with benefit of section 382-B, Cr.P.C.

17. Above are the reasons of our short order dated 2-2-2007 by which we had dismissed the appeal with the above I modification in the sentence and also dismissed the revision applications. H.B.T./M-87/K??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.