2013 PLP 782 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Facts giving rise to this appeal by leave of the court briefly stated are that appellant Muhammad Imran @ Asif along with others was tried in the case registered vide F.I.R. No.341 dated 4-10-1996 under sections 302/34, P.P.C. at Police Station Peoples Colony, Gujranwala for the murder of Shahid Mehmood and the learned trial Court vide its judgment dated 10-10-2000 while acquitting co-accused Muhammad Saleem convicted appellant and his father Mubarak under section 302(b), P.P.C. and sentenced the former to death and latter to life imprisonment. Both were also burdened with an amount of Rs.100,000 to be paid as compensation to the legal heirs, in default whereof they were to undergo RI for six months. Benefit of section 382-B, Cr.P.C. was also extended.

2. The prosecution story briefly stated is that about 1 and 1/2 months prior to the occurrence Shahid Mehmood had picked up a quarrel with Muhammad Imran appellant, his brother Irfan co-accused (proclaimed offender) and their father Mubarak Ali (since acquitted). The matter was patched up. However, the accused nursed a grudge. On the day of occurrence Shahid deceased and his brother complainant P.W.1 were going on a motorcycle bearing registration No.4132 GAH on Hyderi Road and as they reached Muhammadi Chowk all the accused who were armed with 'churris' except Muhammad Saleem (who was armed with iron rod) suddenly intercepted their motorcycle. Sensing mischief Shahid left the motorcycle on the spot and ran towards Bazar No.

2. He was chased and overpowered by the accused near the shop of Basharat Ali, milk seller, and all the accused started belaboring him with their respective weapons. Muhammad Azam attempted to intervene but he was assaulted with iron rod. Imran accused inflicted 'churri' blows on his head, Irfan (since PO) inflicted 'churri' blows on his left flank and left upper arm, Mubarak acquitted accused inflicted 'churri' blows on the right flank and right wrist and on the back of Shahid Mehmood. Having been beaten mercilessly, Shahid fell down on the ground whereafter all the accused inflicted further blows with their respective weapons. In the meanwhile Zulfiqar Ali, Muhammad Bakhsh and others were attracted and accused fled away. The deceased in all received 16 injuries. During trial, the prosecution examined three witnesses namely Muhammad Azam P.W.1, Amir Mehmood P.W.2 and P.W.4 Muhammad Latif. All the accused when examined under section 342, Cr.P.C. denied the occurrence. However, appellant gave his own version and pleaded that he acted in a moment of grave and sudden provocation in circumstances as under:-- "Infact a quarrel between Imran, his friend chand and deceased and other Mohalladars had occurred because the deceased was man of violent temperament and he used to tease the passerby girls. Deceased infact per chance met me when I was proceeding on motorcycle along with my Phuphizad on Haideri road and had come face to face with him and that time he was teasing the sister of Chand my friend and they exchanged hot words with each other. Shahzad fired a shot at me. I dug below and thus saved my life he again aimed at me, apprehending my life at danger. I, my cleaque(sic) Phuphizad picked up a churri and Bughda (sic) near by the hotel Yadgar and we gave injuries to deceased Shahid Mahmood who succumbed to injuries. If I had and my Phuphizad not used the offence, I or my Phuphizad must have been killed. What ever I did, I did in exercise in my self defence. I had even reported the matter to the police including the higher police officer but as the complainant weighed much influence my grievances were not redressed."

3. Learned counsel for the appellant submitted that the prosecution story is false; that if the eye-witnesses were present they would have tried to intervene; that the motive alleged is rather vague and it could not have prompted the accused to have attacked the deceased in the manner as alleged; that in any case, the motive stood disbelieved by the High Court qua the two co-accused who stand acquitted; that no evidence was led by the prosecution as to what actually happened which led to a quarrel between the parties 1 and 1/2 months prior to the occurrence; that the appellant is not attributed any fatal blow on the person of the deceased; that since the prosecution story has been found to be partly false qua those who stand acquitted the same set of evidence cannot sustain appellant's conviction. However, towards the end of his submissions learned counsel added that he would not challenge his conviction provided the sentence of death awarded is converted into life imprisonment.

4. Learned counsel for the complainant opposed the appeal by submitting that Shahid was given merciless beating; that the manner in which he was chased and given 'churri' blows, it is indicative of a prior intent to cause the murder; that it was a broad daylight occurrence and the role attributed to the appellant is fully borne out from the evidence led; that even otherwise, the appellant had admitted the occurrence in his statement under section 342, Cr.P.C. and took a definite plea whereafter the onus shifted on him to prove the veracity of the said version in terms of Article 121 of the Qanun-e-Shahadat Order and he failed to do so. He lastly submitted that since appellant is connected not only with the motive part of the prosecution story but his role during the occurrence having been proved beyond reasonable doubt no case for lesser sentence is made out. In support of the submissions made, learned counsel relied on Nizamuddin v. The State (2010 SCMR 1752).

5. Learned Additional Prosecutor-General defended the impugned judgment and submitted that there are three witnesses who testified regarding the motive as well and that the F.I.R. was lodged promptly which ruled out the possibility of false implication or mistaken identity.

6. We have heard learned counsel for the appellant, for the complainant and learned Law Officer at some length.

7. Since the learned counsel for the appellant has elected not to challenge the conviction, we have considered the submissions on question of sentence and find that a motive was alleged in the F.I.R. but there was no detail of what actually caused the quarrel/altercation 1 and 1/2 months prior to the occurrence. No evidence was led during trial to clarify this rather P.W.2 Amer Mehmood in his cross-examination admitted that he did not know the reason which led to the quarrel about 1 and 1/2 months prior to the occurrence and even P.W.4 Muhammad Latif admitted that he did not witness the motive part of the prosecution story. No wonder the learned High Court disbelieved the motive qua those who were acquitted. There is evidence to suggest that appellant who at the time of occurrence was a young man of 21 years of age acted under the influence of his father Mubarak co-accused who stands acquitted. The latter had raised the 'lalkara' that Shahid deceased should be done to death whereafter the accused launched the attack. Even the nature of injuries caused by the appellant could be yet another factor which would weigh qua the quantum of sentence as we find that appellant was attributed injuries Nos.1 to 3, which were simple. Injuries Nos.5 and 11 were attributed to Irfan who still remains fugitive to law and injuries Nos.4, 6, 7, 8 and 10 were attributed to Mubarak co-accused (father of the appellant) who was acquitted. As per medical evidence injuries Nos.4, 5 and 6 were the cause of death. Thus none of these fatal injuries are attributed to the appellant. The prosecution case was found to be false qua the two co-accused who were acquitted. In terms of section 302(b), P.P.C. there are two legal sentences i.e. death or life. The latter sentence in the facts and circumstances of this case would meet the ends of justice. Consequently, we partly allow this appeal and convert the sentence of death into life imprisonment. However, the remaining sentence with regard to the compensation and in default thereof six months' RI shall remain intact. Benefit of section 382-B, Cr.P.C. would also be extended. MWA/M-28/SC Order accordingly.