2000 PLP 948 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.‑‑‑This judgment will dispose of Murder Reference No.10 of 1997 and Criminal Appeal No.56 of 1997 filed by Muhammad Afzal and Allah Ditta (now deceased), appellants, who were convicted and sentenced by learned Additional Sessions Judge, Rahimyar Khan, on 12‑4‑1997 for the murder of Shabbir Ahmad as under: (1) Allah Ditta appellant under section 302(b), P.P.C., to undergo Life Imprisonment, with the benefit of section 382‑B, Cr.P.C: (2) Muhammad Afzal appellant under section 302(b), P.P.C., to undergo Death Sentence.

2. There is also a Criminal Revision No.28 of 1997 filed by Gul Muhammad complainant for the enhancement of sentence awarded to Allah Ditta appellant (since dead).

3. It may be noted here, that learned counsel for the appellant has brought to our notice that Allah Ditta appellant has already expired which fact was verified by learned counsel for the complainant. So, to the extent of Allah Ditta, appellant this appeal stands abated.

4. The occurrence in this case has taken place at 4‑30 p.m. on 25‑11‑1994 in the area of Mao Mubarak which is at a distance of 22 K.Ms. away from the Police Station, Kot Samaba, District Rahimyar Khan, while the formal F.I.R., was lodged at 5‑00 p.m. on the same day.

5. According to the F.I.R. Exh.P.A./1, the facts of the prosecution case are that it was alleged by the complainant Gul Muhammad that Muhammad Afzal and Allah Ditta were indulging in incidents of robbery. Shabbir Ahmad, brother of the complainant had admonished them not to come to their village; upon which Muhammad Afzal and Allah Ditta threatened him. On the day of occurrence, complainant and his brother Shabbir Ahmad deceased were sitting in the shop of Abdur Rehman Malik known as Malik Tent Service situated at Adda Mao Mubarak. Shabbir Ahmad deceased went out side the shop to purchase cigarettes and he had just gone forward for some paces. It was about 3‑30 p.m. Muhammad Afzal and Allah Ditta duly armed with pistols came there on a motorcycle and parked their motorcycle on a side and shouted Lalkara to Shabbir Ahmad deceased that today they would teach him a lesson for stopping them from visiting his village. Allah Ditta accused/appellant, fired at Shabbir Ahmad deceased which missed and in the meanwhile, Muhammad Afzal accused/appellant also fired with his pistol which hit Shabbir Ahmad on his back side of his neck, he fell down. The complainant on seeing the occurrence raised alarm and rushed to the spot. In the meanwhile, Abdul Wahid and Karam Hussain P.Ws. who were also sitting in another shop adjacent to the shop of Abdul Rehman Malik, who also came at the spot by witnessing the occurrence. Both the accused succeeded in running away from the spot by firing in the air after leaving their motorcycle at the spot. Complainant alongwith P.Ws., took Shabbir Ahmad deceased but he had succumbed*to the injuries at the spot.

6. After the registration of formal F.I.R. Exh.P.A. Muhammad Iqbal A.S.I. P.W.8 reached at the spot and prepared injury statement Exh.P.B./2 and inquest report Exh.P.B./3. He also took into possession blood‑stained earth from the spot vide memo. Exh.P.D. He also recovered one empty P.1 and took the same into possession vide memo. Exh.P.E. He also recovered one motorcycle. P.2 and took the same into possession vide memo. Exh.P.F./1. On 20‑5‑1995 Muhammad Ramzan Inspector/ I.O., arrested Muhammad Afzal and Allah Ditta appellants. While in police custody Muhammad Afzal appellant led to the recovery of pistol 7.62 bore P.7 from his house, which was taken into possession, vide memo. Exh.P.J. Allah Ditta appellant led to the recovery of pistol .12 bore P6 from his house, which was taken, into possession vide memo. Exh.P.J. There is a report of Forensic Science Laboratory Exh.P.L., Report of Chemical Examiner Exh.P.M., and that of the Serologist Exh.P.N. After completion of investigation, both the appellants were challaned to face the trial.

7. Prosecution in order to prove its case produced 11 witnesses in all. Amongst them two witnesses namely Gul Muhammad P.W.5 and Karam Hassan P.W.6, who are real brother and nephew of the deceased respectively, were cited as eye‑witnesses while Bashir Ahmad P.W. was given up as unnecessary. Thereafter, the statements of the appellants were recorded under section 342, Cr.P.C.

8. Learned counsel for the appellant has read before us the prosecution evidence, statements of the appellant recorded under section 342, Cr.P.C., and submits that it was an unwitnessed occurrence, that eye‑witnesses are ‑ related inter se, that no independent witness has been produced by the prosecution and that the eye‑witnesses as alleged by the prosecution were not present at the time of occurrence. Further submits that motive could not be proved by the prosecution for the reasons that no documentary evidence was brought on record to show that Muhammad Afzal appellant and his deceased co‑accused Allah Ditta were involved in criminal cases and these are mere allegations put by the prosecution. So, the motive is shrouded in mystery and it is not a case of capital punishment.

9. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that appellant Muhammad Afzal is named in the promptly lodged F.I.R., that specific role is attributed to him, that Muhammad Afzal appellant and his deceased co‑accused Allah Ditta were the persons of criminal nature being involved in heinous case, inasmuch as, Allah Ditta appellant (since deceased) was involved in 31 criminal cases. Further submits that prosecution has proved its case through ocular account corroborated by medical evidence and the recovery of pistol from Muhammad Afzal appellant. Adds that it is not a case where, appellant should be convicted to undergo life imprisonment, as there are no mitigating circumstances in favour of Muhammad Afzal appellant.

10. We have heard the learned counsel for the parties at a great length and have gone through the prosecution evidence with their assistance. First of all, we would take up the motive part of the story put forward by the prosecution. Motive against the present appellant and his co‑accused (since dead) was that they were involved in cases of snatching motorcycle and were admonished not to come in the village but no documentary evidence whatsoever has been produced either before the police or before the trial Court during the trial showing involvement of the appellant in number of criminal cases, so in our view, motive as suggested by the prosecution is a mere allegation and the prosecution has failed to prove the same.

11. So far as, ocular account is concerned, although that has been furnished by the complainant (P.W.5) real brother of the deceased and Karam Hussain (P.W.6) real nephew of the deceased but they had no enmity whatsoever against the appellant. They have stated during the investigation and also before the trial Court that it was Muhammad Afzal appellant, who while armed with pistol caused injury which hit the deceased on the back side of his neck and proved fatal. As far as, Allah Ditta (since deceased) was concerned, he. while armed with pistol fired but it did not hit any one. Muhammad Afzal appellant also led to the recovery of pistol P.7, which was taken into possession vide memo. Exh.P.K. There are reports of Chemical Examiner and Serologist. Report of Fire‑arm Expert Exh.P.L. supports the prosecution case for the reasons that fire arm expert had stated that "crime empty of 7.62 mm bore marked as C bears multiple hits as such the points of similarity or otherwise are intermingled, hence nothing can be said as to whether or not the crime empty marked as C was fired from the pistol of 7.63 mm bore body signed. So, it cannot be said that one crime empty taken from the spot was fired from the pistol recovered on the pointation of Muhammad Afzal appellant. On the other hand, it has also come on record during the course of cross‑examination of Gul Muhammad complainant/real brother of the deceased (page 41 of the paper book) that the deceased was involved in criminal cases although of triffle nature and that he was also challaned in a criminal case at Lodhran.

12. Although the motive as stated above has not been proved but it has been proved on record that Muhammad Afzal appellant while armed with pistol caused injury on the person of deceased on the back side of his neck and that proved fatal. Taking into consideration the overall facts and circumstances of the case and the submissions made by learned counsel for both the sides and fact that motive in this case is shrouded in mystery which is a mitigating circumstance in favour of the appellant Muhammad Afzal, we by maintaining the conviction of Muhammad Afzal appellant under section 302(b), P.P.C., reduce the same from death to life Imprisonment, with benefit of section 382‑B, Cr.P.C.

13. We have given notice to the learned counsel for the appellant Muhammad Afzal that why the legal heirs of the deceased should not be awarded compensation as required under section 544‑A, Cr.P.C., who has accepted the same, so we also award compensation of Rs.25,000 to be paid to the legal heirs of the deceased and in default of payment thereof to undergo six months R.I. Appeal to the extent of Muhammad Afzal, appellant is dismissed with modification in the sentence and the murder reference is answered in negative. Death sentence is not confirmed. Death sentence awarded to Muhammad Afzal appellant is not confirmed. N.H.Q./M‑45/L Order accordingly.