2013 PLP 378 (SCMR)

SARMAD JALAL OSMANY, J.

Both this Jail Petition as well as Criminal Appeal impugn the Judgment of the learned Lahore High Court whereby petitioner Muhammad Yasin has been convicted under section 302(b), section 324 and section 337-F(iii), P.P.C. and sentenced to undergo life imprisonment, five and three years' R.I. respectively along with fine and appellant Muhammad Aslam has been convicted under section 302(b), section 324 and 337-F(iii), P.P.C. and sentenced to death, five and three years' R.I. along with fine etc. Consequently both the Petition as well as the Criminal Appeal are being disposed of through this Judgment.

2. Briefly stated the facts of the Prosecution case are that on the eventful day complainant Mst. Noor Sain had 20 days prior to the occurrence come along with Ali Sher as well as other family members to harvest the wheat crop. On the night of the incident when the entire family was preparing to sleep, petitioner Muhammad Yasin and appellant Muhammad Aslam both armed with .12 bore guns and one unknown person appeared when Muhammad Yasin inquired about Sabir Hussain who was lying on a cot who got up and then Muhammad Yasin grappled with him. In the meantime Muhammad Ashraf husband of the complainant tried to rescue Sabir when Muhammad Aslam fired at him with his .12 bore gun which landed on the latter's chest who fell down and succumbed to the injury. Then Muhammad Yasin also fired at Sabir which hit his left thigh. The unknown accused inflicted blows with his butt on the head of Sabir. At the commotion P.W's Muhammad Ashfaq and Zakir Hussain were attracted to the scene upon which all three accused persons fled away. The motive was described as the divorce obtained by Mumtaz Bibi, accused's Aunt and Sister of Deceased and her subsequent marriage with Ali Sher at which accused had nurtured a grudge against Muhammad Ashraf and Sabir son of Mumtaz Bibi.

3. Ms. Aisha Tasneem, learned Advocate Supreme Court appearing for the appellant Muhammad Aslam has submitted that per the F.I.R. there was only a lantern at the scene and hence it was hardly possible for the P.Ws. to recognize the accused; that no recovery of any weapon at all had taken place in this case but in another one arising out of another F.I.R.; that the eye-witnesses admittedly were the residents of Pakpattan whereas the incident had taken place in the jurisdiction of Police Station Minchinabad; that no crime empty was recovered from the spot etc. Hence learned Advocate Supreme Court has submitted that the Prosecution has miserably failed to establish the case against the appellant Muhammad Aslam. Alternatively she has submitted that the motive per the Prosecution is that Mumtaz Bibi, the real paternal aunt of the accused, after obtaining a divorce from her first husband had married Ali Sher at which the accused were upset. Consequently the animus, if any, should be either against Mumtaz Bibi or her husband Ali Sher who were admittedly present at the scene along with other members of the family. But strangely enough Sabir who was the son of Mumtaz Bibi was initially targeted by the accused and when Muhammad Ashraf the real brother of Mumtaz Bibi intervened he was shot by Muhammad Aslam. Hence learned Advocate Supreme Court has submitted that the motive has not been proved which entails a lesser sentence insofar as Muhammad Aslam is concerned.

4. In support of this proposition she has also submitted that the entire episode arose out of a scuffle with Sabir as admittedly Muhammad Yasin and Sabir had grappled with each other and when Muhammad Ashraf went to his rescue Muhammad Aslam shot him. Hence on that count too learned Advocate Supreme Court is of the opinion that both the accused had not gone to the place of incident with the intent to kill anyone but in the heat of the moment when the complainant party offered resistance Muhammad Ashraf lost his life and Sabir was injured. In view of the foregoing learned Advocate Supreme Court has prayed that the sentence of death imposed upon Muhammad Aslam be converted to that of life imprisonment.

5. Mr. Ahmed Raza Gillani, learned Additional Prosecutor-General, Punjab has fully supported the impugned judgment both of the learned trial Court as well as the learned High Court. According to him both the accused came to the place of incident nursing a grudge against the entire family as Mumtaz Bibi had married Ali Sher after divorcing her first husband. He has further submitted that the medical evidence on the record fully corroborates the ocular version and that the eye-witnesses have explained their presence at the scene and that the parties are well known to each other. Hence there can be no occasion for wrong identification.

6. We have heard both the learned Advocate Supreme Court as well as the learned Additional Prosecutor-General, Punjab and perused the record with their assistance.

7. It would be seen that insofar as the incident itself is concerned there can be no manner of doubt that it did occur as all P.W's. i.e. complainant Mst. Noor Sain, injured Sabir Hussain and P.W. Muhammad Ishfaq are unanimous in their narration of the same and they have nominated both the accused as having fired at injured Sabir, and deceased Ashraf. The ocular account has been fully corroborated by the medical evidence on the record according to which Sabir Hussain received three injuries. The first one being a lacerated wound of 3 cm x 3 cm on the outer aspect of the left thigh with inverted margins with burning and blackening present around the wound. The second one being a lacerated wound on the front of the skull at the level of the hair line measuring 3cm x 1cm and the third one another being a lacerated wound of 3cm x 2cm on the left side of the skull, underlying bone was exposed at its posterior aspect. According to the doctor the first injury was caused by a firearm while the remaining two were caused by a blunt weapon. Similarly the postmortem examination of deceased Muhammad Ashraf revealed that he had only one injury of 5cm x 7cm between the neck and chest on the left side of which margins were inverted. Burning and tattooing were present around the wound. Again according to the doctor this injury was caused by a firearm and the same was discharged at a distance of three feet from the deceased. The witnesses remained steadfast during cross-examination and no response could be elicited from them which would help the defence in any manner whatsoever.

8. Having come to the above conclusions now it remains to be seen as to in what circumstances Sabir was injured and Ashraf was done to death. It is the Prosecution's own version that the motive behind the crime was the animus the accused were nursing in their hearts due to the divorce obtained by their aunt Mumtaz Bibi the sister of Ashraf deceased and her subsequent marriage with Ali Sher. Hence it is strange as to how the accused upon arriving at the scene enquired about Sabir who is the son of Mumtaz Bibi rather than directing their anger at Mumtaz Bibi and Ali Sher who were admittedly present at that time. Again it would be seen that even though Sabir got up at being called out none of the accused fired at him but when he along with Ashraf started grappling with them firing took place which resulted in injury to Sabir and death of Ashraf. In these circumstances we are of the firm opinion that the injuries caused to Sabir by the petitioner Muhammad Yasin and the death of Muhammad Ashraf at the hands of Muhammad Aslam were the result of a sudden fight between all concerned. In this respect it would also be seen that both Yasin and Aslam did not repeat their fire shots although Sabir and others were at their complete mercy. Hence in our opinion both the death sentence imposed upon Muhammad Aslam as well as life imprisonment handed out to Muhammad Yasin are not warranted. Hence we would convert the death sentence of Muhammad Aslam to that of life imprisonment whilst maintaining his other sentences and only maintain the conviction of Muhammad Yasin under section 324, P.P.C. and subsequent sentence of five years as well as under section 337(f)(ii), P.P.C. and consequent sentence of three years plus fine etc. to run concurrently. Hence Jail Petition No.607 of 2010 is converted into an appeal and allowed in the foregoing terms and so also Criminal Appeal No.373 of 2010 is allowed to the foregoing extent. Both matters are disposed of. MWA/M-77/SC Order accordingly.