2003 P Cr (PLP)

BASHIR A. MUJAHID, J.

‑‑Manzoor Ahmad son of Ahmad Din has challenged judgment dated 13‑6‑1995 passed by learned Additional Sessions Judge, Chunian whereby he was convicted under section 302(b), P.P.C. for commission of murder of Muhammad Rafiq and sentenced to death. Briefly the facts of the prosecution case are that F.I.R. No.53 dated 31‑1‑1994 (Exh.P.C./1) was registered, at 6‑35 p.m. with Police Station Chunian on the statement Exh.P.C., of Zulfiqar Ali P.W.4 recorded by Mujahid Raza, S.‑I./S.H.O. P.W.10 at 6‑15 p.m. at Brother Sugar Mills, Chunian, wherein it was alleged that Muhammad Rafiq son of Muhammad Shafi (deceased) brother‑in‑law of the complainant who was resident of Chak No.34/2R, District Okara had shifted to Mir Kot alongwith his family members. On the day of occurrence at 5‑30 p.m the complainant alongwith his brother‑in‑law Muhammad Rafiq (deceased), Ahmad Din son of Sadar Din P.W.5 and Muhammad Siddiq, father of the complainant had come to their Haveli for tethering their cattle where Manzoor Ahmad armed with .12 bore gun double‑barrel arrived and abused Muhammad Rafiq and fired at him from his gun hitting on his neck, who fell on the groped after receiving the fire. The accused caused second fire shot at the complainant party but they narrow escaped. Manzoor Ahmad (appellant) fled away from the place of occurrence. Muhammad Rafiq succumbed to the injuries at the spot. The occurrence was witnessed by Muhammad Siddiq, father of the complainant and his maternal‑uncle Ahmad Din. The motive for the occurrence was that Mst. Haleema Bibi who was maternal‑aunt in relation of the deceased was divorced by her husband and accused wanted to marry her but the deceased arranged her marriage with one Ramzan of Mir Kot and the appellant caused murder of Muhammad Rafiq to take revenge of this marriage. Mujahid Raza, S.‑I/S.H.O. P.W.10 after recording the statement Exh.P.C. of Zulfiqar Ali, P.W.4 sen6'he same for registration of formal F.I.R. and he himself arrived at the place of occurrence and took the dead body of Muhammad Rafiq into possession and c6llected the blood‑stained earth from the place of occurrence through . memo. Exh.P.D. He prepared the injury statement through memo. Exh.P.F. and inquest report Exh.P.G. and prepared the rough site plan through memo. Exh.P.H. and despatched the dead body for post‑mortem examination through Wazir Ali, F.C. who on 1‑2‑1994 produced the last‑worn clothes of the deceased before the Investigating Officer which were taken into possession through memo. Exh.P.B. On 6‑2‑1994, he arrested Manzoor Ahmad, appellant who while in police custody led to the recovery of gun P.5 with two live cartridges .P.6 and P.7 which were taken into possession through memo. Exh.P.E. He recorded the statements of the prosecution witnesses, completed the investigation and submitted the challan. The trial Court framed the charge and the same was denied by the accused/appellant who claimed his trial. During the trial, the prosecution examined as many as 10 witnesses to prove the guilt of the accused. The medical evidence was furnished by Dr: Syed Mahmood‑ul -Hassan P.W.1, who on 1‑2‑1994 conducted the post‑mortem examination on the dead body of Muhammad Rafiq and found the following injuries on his dead body: (1) A lacerated wound group four in number on left cheek, each x c.m. with inverted margins. (2) A broken tooth of jaw lower left side which was trapped in the mouth, right side. (3) A lacerated wound 1/2 x 1/2 c.m. on left side of lip with inverted margins. (4) Two lacerated wounds 3/4 x 3/4 c.m. on the left side of neck with inverted margins. (5) A lacerated wound 1/2 x 3/4 c.m. on the left side of chin with inverted margins. In the opinion of the doctor there were group of fire‑arm injury which was sufficient to cause internal haemorrhage with shock and neurgenic shock direct which was sufficient to cause death in ordinary course of nature. The duration between the injuries and death was 5 to 20 minutes and between death and post‑mortem 12 to 18 hours. The ocular account was furnished by Zulfiqar Ali, P.W.4 who was complainant of the case. He supported the version of the F.I.R. and narrated the motive for the occurrence Ahmad Din, P.W.5 who was maternal‑uncle of Zulfiqar Ali, complainant supported the prosecution story as an eye‑witness of the occurrence. His statement is in line with the statement of Zulfiqar Ali, complainant, Ashiq Hussain, F.C. was examined as P. W.2 who had escorted, the dead body of Muhammad Rafiq for post‑mortem examination and produced his last‑worn clothes before the Investigating Officer which were taken into possession through memo. Exh.P.B. Abdul Ghaffar, F.C. was examined as P.W.3 who had deposited the sealed parcel of blood‑stained earth and blood‑stained clothes of the deceased with the office of Chemical Examiner, Lahore after obtaining the same from the Moharrar/H.C. of Police Station Chunian. Muhammad Rafiq, H.C. P.W.6 had registered the formal F.I.R. Exh.P.C./1 and kept the sealed parcel in police. Malkhana. Rehmat Ali, P.W.7 had attested the recovery memo. Exh.P.D. of blood‑stained earth taken into possession from the spot by the Investigating Officer Obaidullah, P.W.8 had attested the recovery memo. Exh.P.E. whereby i.e accused/appellant got recovered the gun P.5‑ alongwith live cartridges P.6 and P.7, Rehmat Ali, P. W.9 had prepared the site plan of the place of occurrence while Mujahid Raza, S.‑I. had investigated the case and submitted the challan. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh. P. L. that of Serologist Exh. P. M. and of Forensic Science .Laboratory Exh.P.N. The statement of the accused/appellant was recorded under section 342, Cr.P.C. towards the end of trial. He denied the allegations and claimed his innocence and false involvement due to enmity. The trial culminated into conviction of the appellant as mentioned above. He has challenged his conviction and sentence through Criminal Appeal No.372 of 1995 while the trial Court has sent up Murder Reference No.327 of 1997 for confirmation of death sentence of the appellant under section 372, Cr.P.C. Hence both the matters are being decided by this judgment. Learned counsel for the appellant has argued that it was a night unwitnessed occurrence; that the appellant has been falsely implicated: that the deceased was murdered somewhere else wherefrom the dead body was removed to the place it was recovered; that the alleged motive has not been proved; that the prosecution witnesses are related inter se and to the deceased, their statements have not been corroborated from any other independent source; that the case of the prosecution is doubtful and the appellant is entitled for acquittal by allowing his appeal. Conversely, the appeal has been opposed by the learned counsel for the complainant and for the State. They have supported the impugned judgment. Heard. Record perused. The occurrence took place at 5‑30 p.m. and the statement Exh.P.C. was got recorded with Mujahid Raza, S.‑I. P.W.10 at ‑6‑15 p.m. on which the formal F.I.R. Exh.P.C./1 was registered at police station at 6‑35 p.m. at a distance of. 4/5 k.ms. from the, place of occurrence. The appellant is nominated accused in promptly recorded F.LR. it is correct that the complainant Zulfiqar Ali P.W.4 and Ahmad Din P.W.5 are closely related inter se but they had no animosity against the appellant for his false implication or substitution by letting off the real culprit. Both the witnesses are consistent in their statements. They stood to the test of lengthy cross‑examination but no material discrepancy has been brought on record to discard their testimony. The evidence of the truthful witnesses cannot be discarded on the basis of their mere relationship inter se. The single fire was made by the appellant hit on the neck of the deceased which proved fatal. The deposition of eye‑witnesses has been corroborated by, medical evidence. In the post‑mortem examination conducted on 1‑2‑1994 at 9 a.m., the doctor has stated that duration between the death and post‑mortem examination was 12 to 18 hours and the occurrence took place at 5‑30 p.m. The argument advanced on behalf of the appellant that it was an unwitnessed night occurrence has no force. The recovery of weapon of offence is immaterial as no empty was taken into possession by the Investigating Officer from the spot and the gun recovered from the appellant was also not found in working condition as per report of Forensic Science Laboratory Exh.P.N., therefore, the recovery of gun is of no consequence. The prosecution case has been otherwise established against the appellant by the ocular account furnished by Zulfiqar Ali P.W.4 and Ahmad‑Din P.W.5 fully corroborated by medical evidence. After deep reappraisal of the evidence, we do not find any reason to interfere in the conviction recorded against the appellant, so the same is maintained. As far as the sentence is concerned, the motive alleged by the complainant was that Mst. Haleema maternal‑aunt, in relation of the deceased, was given in marriage with Muhammad Ramzan by the deceased but the accused/appellant was interested to marry her has not been proved during the trial, therefore, we find that the motive as alleged has not been proved. Although the absence or weakness ,of motive is not considered as mitigation for awarding lesser penalty but when motive has been set up by the prosecution, then onus lies upon it to prove the same. Furthermore, as per latest law declared by the Honourable Supreme Court in case Feroze Khan v. The State 2002 SCMR 99 that lack of motive although has not been accepted as mitigating circumstance but when one or two witnesses are waivering and jump from one motive to another it can be considered as mitigating circumstance. In the instant case as the Investigating Officer has not investigated the, motive properly and F.I.R. was also not recorded at the police station straightaway so presumption is that the same was registered after preliminary investigation. No independent/impartial witness from neighbourhood was examined by the prosecution therefore, we feel that it is not a fit case to maintain the capital punishment of death. Resultantly, while maintaining the conviction, we alter the death sentence to imprisonment for life which will meet the ends of justice. The death sentence of Manzoor Ahmad is not confirmed. Murder Reference is answered in the negative. H.B.T./M‑1535/L Order accordingly.