2006 PLP 1801 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution has been directed against the judgment, dated 16-7-2003 passed by a Division Bench of Lahore High Court, in a criminal appeal filed by the petitioner whereby conviction and sentence of death awarded to him under section 302(b), P.P.C. and rigorous imprisonment for a term of ten years under section 449, Y.P.C. with direction to pay Rs.10,000 as compensation to the legal heirs of the deceased, was maintained and appeal was dismissed. The death sentence awarded to the petitioner was confirmed and murder reference sent by the trial Court was answered in the affirmative.

2. The brief facts in small compass, as contained in the F.I.R. lodged by Farhan Ullah Masih (complainant) at Police Station Gojra, are that on the day of occurrence, Iftikhar Ullah Masih, his maternal-uncle and Hafiz Ullah Masih his paternal-uncle, having visited his house remained busy in conversation on the domestic problems and at about 10 p.m. Hafiz Ullah Masih left for his house whereas he and Iftikhar Ullah Masih went to sleep on roof top of the house and his father Sarfraz Ullah Masih, slept in the courtyard of the house. The complainant and Iftikhar Ullah Masih were still talking when they saw that Dilbar Masih (petitioner), armed with .12 bore carbine, by scaling over the wall entered in the courtyard of the house and after firing a shot at Sarfraz Ullah Masih, ran away by scaling over the wall and on their noise Hafiz Ullah Masih coming out of his house, tried to apprehend Dilbar Masih but he escaped. Sarfraz Ullah Masih was taken to Civil Hospital Gojra for treatment and the doctor after giving first aid, referred him to Allied Hospital, Faisalabad but due to serious condition, he was brought back to Civil Hospital, Gojra from a short distance and before could be given treatment, he last his breath. The motive for the occurrence as stated in the F.I.R., was that about 5/6 months earlier motorcycle of deceased was stolen and he having suspected the accused to have stolen his motorcycle, demanded payment of the price of motorcycle or prove his innocence whereupon the accused felt insulted and having nursed grudge against the deceased, committed his murder. The prosecution in proof of the charge, mainly relied upon the ocular account furnished by Hafeez Ullah Masih (P.W.10), Farhan Ullah Masih complainant (P.W.8) and Iftikhar Ullah Masih (P.W.9) duly supported by medical evidence and motive. The accused in his statement under section 342, Cr. P. C. denied the charge and pleaded innocence.

3. Learned counsel for the petitioner in support of this petition, has contended firstly, that there was inordinate delay of about six hours in lodging the report and it was an unseen night occurrence, secondly the deceased was murdered in the courtyard of his house and except the complainant, his son, no other witness was present and that eye-witnesses being closely related to the deceased, were not independent and thirdly, pointing out the minor discrepancies and contradictions in the evidence and suggestion put to the witnesses in the cross-examination regarding the illicit relations of deceased with Mst. Sughran, contended that he was fired at by some of the relative of Mst. Sughran and neither the witness have seen the occurrence nor they could identify the assailant in the dark from roof top of the house and that petitioner was substituted for unknown assailant due to the suspicion. In nutshell the contention of the learned counsel was that the circumstances, leading to the happening of the incident in the night would create a reasonable doubt regarding the commission of offence by the petitioner and lastly, he argued that single injury on non-vital part of the body, would indicate lack of intention to kill which could be considered a mitigation for lesser punishment therefore, the sentence of life imprisonment would be sufficient to meet the ends of justice. The learned Assistant Advocate-General, on the other hand has opposed this petition with the contention that deceased was murdered in the courtyard of his house and the complainant being inmate of the house was most natural witness whereas presence of Iftikhar Ullah Masih, his paternal-uncle in the house was also not unexpected and since deceased had suspected the petitioner to have stolen his motorcycle, therefore, he had a strong motive to commit the crime.

4. The occurrence in the present case had taken place in the courtyard of the house of deceased within the sight of Farhan Ullah (complainant) and Iftikhar Ullah, is paternal-uncle, the most natural witnesses. There is nothing on record to suggest the false implication or substitution of the petitioner for unknown culprit as none of the witnesses had any reason or malice against the petitioner to involve him in the murder of the deceased. Hadayat Ullah Masih, maternal-uncle of the deceased and his neighbourer on hearing the noise rushed out of his house and having seen the accused running in the street made an attempt to apprehend him but could not succeed. This witness was also quite independent and having narrated the facts in natural sequence, has supported the prosecution without any exaggeration and also corroborated the eye-witnesses in each material point.

5. Learned counsel has not been able to convince us that testimony of eye-witnesses, was suffering from any disqualification to be excluded from consideration or that it being tainted with malice was not reliable. The prosecution has placed on record the copy of the report lodged by the deceased regarding theft of his motorcycle whereas the eye-witnesses have consistently deposed that accused had grievance against the deceased for his having suspected him to have committed the theft of his motorcycle and for the same grudge while trespassing into his house, fired at the deceased. We find that the ocular account would also be supported by the medical evidence to the extent of sustaining the fire-arm injury by the deceased at the hand of petitioner and in these circumstances, the minor discrepancies and contradictions pointed out by the learned counsel for the petitioner would not be material either to effect the credibility of the evidence of eye-witness or create any doubt or dent in the prosecution case. The petitioner was identified by the witnesses in the electric light in the courtyard of the house as well as while running in the street after the occurrence and defence has not been able to bring on record any evidence, direct or circumstantial to suggest that either it was a dark night or there was no electric light available in the courtyard of the house or in the street, and in view thereof, we would not take any exception to the conclusion of the evidence drawn by the two Courts regarding the guilt of the petitioner. However, while taking into consideration the question of sentence, we find that a single shot was fired by the petitioner on lower part of the body of deceased which caused fracture of his leg and at the first instance, he was taken to Gojra Hospital in injured condition for medical aid but was referred to Allied Hospital, Faisalabad and on the way to hospital at Faisalabad, his condition became serious therefore, he was brought back to Gojra Hospital and in this process, the deceased for want of proper care and medical aid expired due to the extensive bleeding. It may be seen that the life of the deceased could be saved if proper medical aid would have been provided to him at Gojra and thus, these circumstances would certainly provide some mitigation for lesser punishment. This petition is, therefore, converted into an appeal and is partly allowed with reduction of sentence of death awarded to appellant to life imprisonment with direction for, payment of compensation to the legal heirs of the deceased in terms of the judgment of the High Court. The sentence awarded to him under section 449, P.P.C. is however, maintained. This appeal, with above modification in the sentence, is partly allowed. S.A.K./D-9/SC Appeal partly accepted.