2008 SCMR 1082 (PLP)

IJAZ-UL-HASSAN KHAN, J.

The above captioned appeal arises out of the judgment dated 16-9-2004 passed by a learned Division Bench of the Lahore High Court, Lahore, dismissing Criminal Appeal No.301-J of 2003 filed by Muhammad Yaqoob, appellant and answering in the affirmative Murder Reference sent by learned Judge, Special Court, Anti-Terrorism-II. Lahore.

2. The prosecution story in brief is, that on the night of occurrence, complainant Noor Ahmed, S.-I. Police Station Saddar, Okara, along with constables Asghar Nadeem, Muhammad Iqbal and Noor Samand, was on routine "Gashat". When they reached near the road leading to shrine of Hazrat "Karamanwala" a car was seen coming from Renala Khurd side. On seeing the police party, driver of the car negotiated a turn and changed the direction of the car. The car was chased and got stopped at some distance. Three persons stepped down from the car while one remained seated on the driving seat. One of them, namely, Muhammad Yaqoob, was armed with .222 bore rifle, the other was carrying Kalashnikov and the third had a .30 bore pistol with him. All the three persons on confrontation, started firing at the police party as a result of which, Asghar Nadeem and Noor Samand constables were hit and seriously injured. The official vehicle was also damaged due to the firing. After accomplishing the mission, the accused made good their escape. The injured were rushed to D.H.Q. Hospital Okara. Asghar Nadeem could not survive and expired in the hospital. 2-A. After completion of investigation, appellant and co-accused Mazhar and Sarfraz were sent up to face trial. In order to establish its case, prosecution examined 19 witnesses in all. P.Ws. Noor Samanad, Muhammad Iqbal, Ghulam Mustafa and Noor Ahmed furnished eye-witness account of the occurrence. Dr. Arshad Iqbal, Medical Officer, D.H.Q., Hospital Okara, conducted post-mortem examination of Asghar Ndaeem deceased on 28-5-2001 at about 10-30 a.m. and found the following injuries: "(1) A lacerated wound 1.5 c.m. x 1.5 c.m. with inverted margin and abraded area around the wound, deep going on left hypogastic region 9 c.m. above root of panes (wound of entry). (2) A lacerated wound 1 c.m. with averted margin on outer and lower part of right side of abdomen (wound of Exit). The wound is 6 c.m. above right iliac crest. (3) A lacerated wound 1 c.m. with inverted and blacken margin deep going on back and upper thigh (wound of entry). (4) A lacerated wound 2 c.m. x 2 c.m. with averted margin on left groin 3 c.m. away from left scrotum (wound of exit). Left desceing colon and right colon and blood vessels in left groin (femoral) were ruptured, heart was healthy and right vertical was full of blood. Stomach was healthy and empty. Bladder was healthy and contained about 2 ounce of urine. All other organs were healthy. Cause of death was haemorrhage and shock resulting from injury Nos. 1, 2, 3 and

4. The probable time between injury and death was within half an hour."

3. Appellant and co-accused in their statements under section 342, Cr.P.C. denied the prosecution allegations and claimed to have been falsely charged. The appellant in answer to question "as to why instant case has been registered against him and why the witnesses have deposed against him" gave the following reply:-- "I have been falsely implicated in the present case at the instance of Muhammad Ashraf Sanghoka, resident of Okara with whom I got previous enmity though I have no concern with the present occurrence." They neither examined themselves on oath as required under section 340(2), Cr.P.C. nor produced evidence in their defence.

4. On conclusion of trial, learned trial Judge, vide judgment dated 6-5-2003 extended benefit of doubt to co-accused Sarfraz and Mazhar and acquitted them while appellant was convicted and sentenced as follows: (i) Under section 302(b) read with section 34, P.P.C. to death. (ii) Under section 324 read with section 34, P.P.C. to ten years' R.I. and to pay fine of Rs.50,000 or in default thereof to further suffer six months' R.I. (iii) Under section 7(i)(a) of the Anti-Terrorism Act, 1997 to death. (iv) The sentences of death awarded to appellant under the two offences were subject to confirmation by High Court. (v) Appellant was also directed to pay compensation of Rs.1,00,000 to legal heirs of Asghar Nadeem, deceased, and Rs.30,000 to Noor Samand or in lieu thereof to undergo six months' imprisonment on each count. The sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.

5. Feeling aggrieved, appellant preferred appeal before learned Lahore High Court, Lahore, which has been dismissed as stated hereinabove.

6. Mr. Muhammad Javed Aziz Sindhu, learned counsel for appellant in support of the appeal, contended that except the bare allegations in the F.I.R, there is nothing incriminating on the file which could connect the appellant with commission of the crime; that prosecution story is highly unnatural as the circumstances leading to occurrence would vividly suggest that deceased was murdered by some unknown assailant/assailants but appellant has been involved at the instance of Muhammad Ashraf Sanghoka and truth has been suppressed by implicating the appellant in the false case. Learned counsel also contended that on the basis of the same evidence, the co-accused were acquitted but both the Courts below have erred in law in not extending benefit of doubt to the appellant and convicting him on the same evidence which was not believed by those Courts against the acquitted co-accused. Learned counsel further contended that the medical evidence does not corroborate the ocular account and stands belied by host of circumstances. In short it was reiterated that the evidence produced by the prosecution being shaky and not confidence inspiring was not liable to be relied upon without strong independent evidence which is not available in this case to sustain the conviction of the appellant.

7. While controverting the arguments of learned counsel for the appellant, Mr. M. Siddique Khan Baloch, learned Deputy Prosecutor General, supported the impugned judgment asserting that both the Courts below after proper appreciation of evidence have come to the concurrent conclusion qua the guilt of the appellant and as such the impugned judgment admits no interference by this Court and appeal merits outright dismissal.

8. We have heard the arguments of both the learned counsel and with their assistance the impugned judgment has been gone through carefully and minutely in the light of the evidence produced before the trial Court.

9. The prosecution case mainly rests upon ocular account of the incident furnished by P.Ws. Noor Samand, Muhammad Iqbal, Ghulam Mustafa and Noor Ahmed, medical evidence and recoveries. The eye-witnesses have deposed almost on the lines of F.I.R. (Exh.P.A.). They remained unanimous and consistent on all details of the occurrence. The witnesses have no reason or motive for false implication. They were subject to lengthy and searching cross-examination but their creditability could not be shattered. The mere fact that they are police officials by itself cannot be considered a good ground to disbelieve their evidence. Learned appellant's counsel has not been able to refer to any piece of evidence which, if considered, could persuade us to interfere with the concurrent findings of guilt recorded by the learned two Courts. The evidence has been minutely reappraised by learned High Court which upheld conviction of the appellant. Medical evidence is also in complete harmony with the deposition of eye witnesses and suggested that the death of the deceased was caused as a result of fire-arm injuries. So far as the recoveries are concerned, same have been discarded by the Courts below and rightly so.

10. While considering the question of sentence, we feel that as it is not certain from the evidence on record that it was the shot of the appellant which resulted in the death, of Asghar Nadeem, deceased, it constitutes a mitigating or extenuating circumstance justifying lesser punishment, as held by this Court in cases of Allah Dad and another v. The State 1995 SCMR 142 and Saeed and others v. The State 1984 SCMR 1069. We are inclined to partly allow the appeal and while maintaining the conviction, we reduce the sentence of the appellant from death to imprisonment for life with benefit of section 382-B, Cr.P.C. Other sentences shall remain intact and run concurrently.

11. Above are the detailed reasons of our short order dated 20-3-2008. M.H./M-28/SC Order accordingly.