2017 P Cr (PLP)

QAZI MUHAMMAD AMIN AHMED, J.

Muhammad Islam alias Abdul Salam, Muhammad Ramzan alias Jehana, real brothers inter-se, appellants herein, stand convicted under section 302(b) read with section 34 of the Pakistan Penal Code, 1860 for committing Qatl-i-amd of their cousin Muhammad Shahid Kamran, 39, hereinafter referred to as the deceased; the former is sentenced to death with compensation of Rs.500,000/- or to undergo six months' S.I in the event of default whereas the latter is sentenced to imprisonment for life with compensation of Rs.500,000/- or six months' S.I in the event of default; benefit of section 382-B of the Code of Criminal Procedure, 1898 was also extended; compensation is to be recovered as arrears of land revenue; their father Sher Bahadar tried alongside theirs is acquitted for the charge vide judgment dated 31-8-2013 rendered by a learned Addl. Sessions Judge at Rawalpindi. Criminal Appeal No. 329 of 2013 calls into question the vices of the impugned judgment; Murder Reference No.52 of 2013 by the State seeks confirmation of death penalty whereas Criminal Revision No. 7 of 2014 is directed for enhancement of sentence awarded to Muhammad Ramzan co-accused as well as compensation; these are being decided through this single judgment. The occurrence took place at 9:00 a.m within the area of Dhok Khabbah situating at a distance of 1-1/2 kilometer from Police Station Waris Khan, Rawalpindi reported by Mushtaq Ahmad (PW-7) 10:30 a.m. at the spot through complaint (Ex.PH) recorded by Amir Gondal S.I (PW-11). According to the complainant, a cloth vendor used to lend money, off and on, to the deceased, his nephew who maintained a junkyard. On the fateful day i.e. 7-8-2011 at about 9:00 a.m., the complainant visited the deceased to take back the borrowed amount; Muhammad Jameel (PW-6) and Muhammad Irfan real brothers of the deceased (given-up) were also present there. Zafar Iqbal son of Muhammad Iqbal also reached there when Muhammad Islam alias Abdul Salam armed with a 30-caliber pistol along with Muhammad Ramzan appellant with acid in a jug with their father Sher Bahadar arrived at the scene. Sher Bahadar exhorted upon the deceased that he would quench for the divorce of his daughter-in-law and it was at this juncture that Muhammad Ramzan emptied acid jug upon him followed by straight repeated fires by Muhammad Islam alias Abdul Salam, appellant; the deceased felled on the ground. Some of the drops burnt complainant's clothes as well as those of Muhammad Irfan; the accused decamped from the scene and deceased succumbed to his injuries at the spot. Motive for the crime is that daughter of Muhammad Jameel a partner of the deceased in his business was married with Muhammad Islam alias Abdul Salam appellant; the marriage terminated into divorce; the appellants suspected the deceased as being responsible for the failure of matrimonial bond. Dr. Muhammad Qasim (PW-10) conducted autopsy at 4:00 p.m.; he noted six firearm entry wounds on temporal/occipital area, back of neck, right Hypochondiam, medial side of right wrist and right side of chest with five exits on both sides of neck, frontal and lateral side of chest, abdominal region to the pubic area, left and right arms, right thigh from front and backside were burnt by corrosive agent/acid; head injury in association with other injuries was opined as cause of death which was immediate; inter-se duration with postmortem was estimated within 7 to 8 hours. Amir Gondal, S.I (PW-11) carried out initial investigation; during spot inspection, he secured bloodstained earth, five empties of 30 caliber as well as Plastic Jug (P-13) vide inventories. Appellants were arrested on 25-8-2011; pursuant to a disclosure, Muhammad Islam, appellant led to the recovery of 30-caliber pistol (P-11), secured vide inventory. Dr. Shaheen Akhtar Malik (PW-5) medically examined Muhammad Ramzan appellant on 29-8-2011 and noted burn scars on both hands and forearms of his body as well as on upper chest; Sher Bahadar accused was arrested on 04-11-2011; after completion of investigation, they were sent to face trial; on 20-02-2012 they contested their indictment and claimed trial, pursuant whereto, prosecution in order to bring home charge against them, besides relying upon forensic reports, produced as many as twelve witnesses; of them, Muhammad Jameel (PW-6) and Mushtaq Ahmad (PW-7) furnished ocular account, the mainstay of the prosecution case. On forensic side, earth secured from the spot was found stained with blood of human origin whereas according to report (Ex.PQ) pistol (P-11) was found in working condition with no reference to the casings, however, a duplicate report available in police file suggests the casings to have been fired from pistol (P-11). The appellants confronted the prosecution evidence with a unanimous denial, the learned trial Judge, however, vide the impugned judgment proceeded to convict and sentence the appellants as referred to above; appellants' father Sher Bahadar was acquitted from the charge.

2. Learned counsel for the appellants contends that prosecution case is fraught with doubts, contradictions and improbabilities; that the deceased and the appellants, being related in second degree, the massive violence belies the motive as suggested in the crime report; that presence of the PWs at the scene is highly improbable and unnatural and as such their evidence merited outright rejection; that acquittal of Sher Bahadar goes a long away to reflect upon the prosecution case. Lastly it is argued that in any case, it is not a case of capital sentence and for that Muhammad Islam alias Abdul Salam should be visited with alternate penalty of imprisonment for life as according to the investigation, the deceased himself had offered grievous offence and provocation to the appellant. Contrarily, the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment on the ground that both the appellants in a most callous and cruel manner not only committed the murder but also mutilated the deceased by throwing acid on him and as such, they deserved no leniency. He has particularly referred to the burn injuries sustained by Muhammad Ramzan which according to him confirmed his culpability to the hilt. It is lastly argued that imprisonment for life awarded to Muhammad Ramzan, appellant be converted into penalty of death to meet the ends of justice.

3. Heard. Record perused.

4. The appellants and the deceased are related in the second degree; marriage of Muhammad Islam alias Abdul Salam appellant with Fareeda, daughter of Muhammad Jameel (PW-6) a business partner of the deceased, terminating into divorce with four children, is a common ground. In this backdrop, genesis of complaint (Ex.PH) is above board as Muhstaq Ahmad (PW-7) has seemingly no axe to grind against the appellant. Similarly Muhammad Jameel, erstwhile father-in-law of Abdul Salam appellant would not point his finger on the father of his grandchildren to substitute or swap him with the real offenders; both the witnesses remained throughout in a comfortable unison during the course of a rather lengthy cross-examination; they furnished graphic details of the occurrence as well as matters allied therewith and this confirms their presence at the scene. The medical evidence is in line with the ocular account; though the forensic report does not much advance the prosecution case inasmuch as the casings secured from the spot were dispatched alongside the pistol (P-11) same day, however, the injuries noted by the Medical Officer are consistent with the recovered weapon; burn injuries suggest use of corrosive substance as well. The learned trial Court rightly placed reliance on these various pieces of evidence to return a guilty verdict as these are sufficient to exclude every hypothesis of appellant's innocence. Consequently, Crl. Appeal No. 329 of 2013 fails. However, insofar as question of quantum of sentence to be exacted from Muhammad Islam alias Abdul Salam appellant is concerned, it warrants a serious reconsideration. It has been held in the case of "Ghulam Mohy-ud-Din alias Haji Babu v. The State" (2014 SCMR 1034), relevant portion whereof is advantageously reproduced below:- "Once the legislature had provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all the cases of murder, the death penalty was the normal penalty and should ordinarily be awarded. If the intent of the legislature was to take away the discretion of the court, then it would have omitted from S. 302(b), P.P.C. the alternative sentence of life imprisonment. Sentence of death and life imprisonment were alternative to one another, however, awarding one or the other sentence essentially depended upon the facts and circumstances of each case." Massive violence inflicted upon the deceased is suggestive of some extremely grievous provocation and deep rooted grudge consequent thereupon, harboured by the appellants otherwise closely related with him. There is an oblique reference in complaint (Ex.PH) with regard to a possible role played by the deceased towards termination of the marriage, certainly a source of profound emotional devastation suffered by Muhammad Islam alias Abdul Salam appellant; at the time of his arrest, the said appellant gave graphic details of the motive behind this gory incident. Statement of an accused in police custody, hit by Article 39 of the Qanun-e-Shahadat Order, 1984 certainly cannot be pressed into service to his detriment in any manner whatsoever; nonetheless, it can be favourably looked into to extend a possible benefit to him. The appellants unanimously blamed the deceased as being solely responsible for playing havoc in their domestic lives for keeping Fareeda with him in a liaison and being sarcastic, off and on upon Muhammad Islam alias Abdul Salam and this position cannot be dismissed out of hand as the motive cited in the complaint refers thereto albeit with reticence. Though acquitted from the charge, nonetheless, it is prosecution's own case that the appellants committed this crime on the exhortation of their father Sher Bahadar and as such conducted themselves under his influence; Forensic Report (PQ) is inconsequential. All these circumstances cumulatively, make out a case to visit Muhammad Islam alias Abdul Salam, appellant with the alternate penalty of imprisonment for life. Consequently death penalty is altered into imprisonment for life; amount of compensation and consequences in the event of default are kept intact; benefit of section 382-B of the Code of Criminal Procedure, 1898 shall be extended to the appellant. MURDER REFERENCE No.52 of 2013 is answered in the NEGATIVE and death sentence is NOT CONFIRMED. As a natural corollary of above findings. Criminal Revision No.7 of 2014 stands dismissed. JK/M-45/L Order accordingly.