2006 PLP 2437 (YLR)

SYED SHABBAR RAZA RIZVI, J.

The appellant after having been tried by the learned Addl. Sessions Judge, Sargodha, in case F.I.R. No.48, dated 22-1-1998, under section 302/34, P.P.C., registered at Police Station, Midh Ranjha, was convicted under section 302(b), P.P.C. and sentenced to death for causing murder of Muhammad Mansha. He was also liable to pay compensation of Rs.50,000 to the legal heirs of the deceased under section 544-A,. Cr.P.C., in default of payment to undergo R.I. for six months. He was also convicted and sentenced to 'daman' amounting to Rs.1,000 and imprisonment for two years as Tazir for causing injuries to Miss Rehana and 'daman' amount to Rs.2,000 with imprisonment of three years as Tazir for causing injuries to Miss Saba Mansha, under section 337-F(iii)(v), P.P.C. respectively each.

2. The brief facts of the prosecution case as narrated in para.2 of the impugned judgment are that, "Muhammad Amir (P.W.7) son of Maula Bakhsh complainant lodged F.I.R. Exh.P.J. that on 22-1-1998 he along with Muhammad Iltaf Ahmad (P.W.8) were sitting on the shop of Imtiaz Dhabba at about 5-40 p.m. for 'Aftari' whereas Muhammad Mansha deceased along with his two daughters namely Saba Bibi aged four years and Sana Bibi aged two years was going back to his house after purchasing 'Aftari' articles, when he reached near the house of Muhammad Ranjha son of Sardara, then suddenly from graveyard side Muhammad Aslam son of Abdullah accused armed with Kalashnikov along with two unknown persons who can be identified one of them armed with LMG and another armed with Klashnikov came riding Honda motorcycle without number. As soon as they came, Muhammad Aslam raised Lalkara at Muhammad Mansha that today he has come and will not let him alive. Muhammad Mansha was about to look behind then Muhammad Aslam fired a shot with Klashnikov at Muhammad Mansha whereupon Mst. Saba Mansha and Rehana daughter of Anaar were injured, second fire-shot with Klashnikov was also hit Muhammad Mansha by Muhammad Aslam, accused and he again fired with Klashnikov which hit Muhammad Mansha straight on his chin whereupon he fell down and succumbed to the injuries at the spot. The complainant along with P.Ws. saw the occurrence and raised alarm whereby all the three accused ran away riding their motorcycles. The motive for the occurrence is that one month ago, Muhammad Mansha deceased and Muhammad Aslam accused had a verbal brawl at Mauza Badar Bus stop and Muhammad Aslam had threatened him that he will finish him in future and due to this grudge Muhammad Aslam along with his co-accused has murdered son of sister of the complainant. Hence this case."

3. After completion of the investigation, challan against the accused/ appellant was submitted in Court. The trial Court framed the charge which was denied by the appellant and he claimed trial. During the trial the prosecution examined as many as 12 witnesses to prove the guilt of the accused.

4. The medical evidence was furnished by Dr. Waqar Ahmad Hameed, P.W.5, who on 23-1-1998 conducted the post-mortem examination on the dead body of Muhammad Mansha and found two fire-arm injuries on his body. The same doctor also medically examined on 28-1-1998 Mst. Rehana and Mst. Saba and found two fire-arm injuries each on their person.

5. The ocular account was furnished by Muhammad Amir, P.W.7, who was complainant of the case. He supported the prosecution story as narrated in the F.I.R. Muhammad Iltaf Ahmad, P.W.8 was also eye-witness of the occurrence. His statement is also in line with that of the complainant.

6. P. W .1, Muhammad Shahbaz, M.H.C. kept the sealed parcel of blood stained earth in police malkhana handed over to him by the Investigating Officer., which he handed over to Muhammad Ibrahim, Constable P.W.2, who delivered the same at the office of Chemical examiner. He also obtained warrant of arrest under section 24 of the Police Act on 16-3-1998 for the arrest of accused Muhammad Aslam. The warrants could not be executed as the accused went underground. On which proceedings under sections 87/88, Cr.P.C. were undertaken. P.W.3, Muhammad Hafeez Draftsman prepared the site plans Exh.P.B. and Exh.P.B./1 of the place of occurrence. P.W.4 Muhammad Amir, F.C. got conducted the post-mortem examination on the dead body of Muhammad Mansha and he produced last worn clothes of the deceased before the Investigating Officer. Which were taken into possession through memo. Exh.P.C. P.W.6 Ali Sher identified the dead body of Muhammad Mansha at the time of post-mortem examination. P. W.9, Muhammad Fareed arrested accused Muhammad Aslam who was found arrested in another case F.I.R. No.154 of 1998. P.W.10, Muhammad Amir, S.-I. was investigating officer of the case. He visited the place of occurrence, recorded the statements of the P.Ws. under section 161, Cr.P.C. and after completion of the investigation, he submitted the challan. P.W.11, Shabbir Hussain, A.S.-I. stated that on 1-5-1998 while he was posted at Police Station, Ajnianwala, he along with Muhammad Siddique, S.-I. and Muhammad Shafi, H.C. joined the investigation and were present in village Soal Kalan. At that place, there were two dead bodies lying and one seriously injured, Muhammad Aslam now present appellant had lost his right hand, .8MM rifle along with a bandolier containing 452 cartridges was lying there and 13 magazines empty were also lying there, which were taken into possession by him through memo. Exh.P.M. P.W.12, Muhammad Siddiq, S.-I. also supported Shabbir Hussain, P.W.11.

7. The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Exh.P.N. and that of Serologist Exh.P.P.

8. The statement of the accused appellant was recorded under section 342, Cr.P.C., wherein he denied the allegations and claimed innocence.

9. The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal. The trial Court has sent up Murder Reference No.152 of 2000 for confirmation of death sentence of the appellant under section 374, Cr.P.C.

10. During the course of hearing of the present appeal, it was found that Muhammad Aslam, appellant was a crippled/disabled person, therefore, in this regard report was sought from the Superintendent, Central Jail, Lahore. The report has been received. It revealed that "due to old injury by fire-arm he has lost his both eye balls and he is blind totally;' there is also amputated right forearm from the mid and malurited mandible. He can walk and there is also old healed injury of left lower leg and left toe. Due to heaving no eye balls and amputated right forearm he is a disable person".

11. The learned counsel for the appellant submits that in view of the overall circumstances of the case, he does not want to press for the acquittal of the appellant, he will be satisfied if the sentence is reduced in view of medical report submitted in the Court from the jail authorities. The said shows that the appellant is a totally blind and crippled person.

12. The learned counsel or the State also does not oppose the above contention of the learned counsel for the appellant.

13. We have heard the learned counsel for the parties and consulted the record including the report submitted from the Superintendent Central Jail, Lahore. For the reasons and circumstances as stated above, the conviction of the appellant is maintained. However, his sentence is reduced from death to life imprisonment, as this much sentence will serve the interest of justice as well as the intents of Pakistan Penal Code. The punishment of fine/ compensation or sentence in lieu thereof is maintained. Murder Reference No.152 of 2000 is answered in the Negative. H.B.T./M-289/L Order accordingly.