1995 P Cr (PLP)

SH. MUHAMMAD ZUBAIR, J.

Muhammad Akram, Muhammad Aslam and Ghulam Rasul, were tried under section 302/34, P.P.C. for the murder of Rashid Ahmad by the learned Additional Sessions Judge, Okara Camp at Depalpur. The learned trial Judge vide his judgment, dated 7-7-1993, acquitted the latter two of the charge but convicted Muhammad Akram under section 302(b), P.P.C. and awarded him sentence of death. The convict has appealed against his conviction and sentence. The learned trial Judge has referred the case to this Court under section 374, Cr.P.C. for confirmation of death sentence. The complainant has filed Criminal Revision No.416 of 1993, for compensation to the legal heirs of the deceased. We propose to dispose of all the three matters by this judgment.

2. The prosecution case, as contained in F.I.R. Exh. P.A. recorded by Umar Hayat, A.S.I. (P.W.8) on the basis of statement Exh.PA./1 of Muhammad Sharif (P.W.1) is this. On 7-12-1991 at Dopehrwela, Nazir Ahmad, nephew of Muhammad Sharif (P.W.1) quarrelled with Amanat. His father Khurshid being offended slapped and abused Nazir Ahmad, by going in the school. On 8-12-1991, Muhammad Sharif complainant alongwith his son Rashid Ahmad deceased went to the house of Khurshid and complained him of this incident, hot words exchanged there. The same day at about 8-30 a.m. when the complainant and his deceased son were going back after complaining Khurshid, t4ey met Muhammad Ashiq and Farid Ahmad near the Dhari of Siddique Bhatti. They stopped there for a while. All of a sudden Muhammad Akram appellant armed with .32 bore revolver, and the acquitted accused came there. The acquitted accused raised Lalkara that the complainant and his son be taught a lesson for complaining and that they should not go alive. Muhammad Akram appellant fired five shots, one after the other at Rashid Ahmad, one of which hit on the right side of his abdomen. Thereafter, the accused ran away while raising Lalkara. The deceased in injured condition was brought to Civil Hospital, Haveli where he succumbed to the injuries. Leaving the dead body in the hospital, Muhammad Sharif proceeded to the police station to lodge the report. He met Amanullah Khan, S.I. (P.W.9) at Lorry Adda, Haveli, who recorded his statement Exh.PA./1 at 11-45 a.m. the S.I. sent Exh.PA./1 to Police Station Haveli, where formal F.I.R. Exh.PA. was recorded by Umar Hayat, A.S.I. (P.W.8), at 12-00 noon. Amanullah Khan, S.I. then proceeded to the hospital. He prepared injury statement Exh.P.F. and inquest report Exh.P.G. and sent the dead body to the mortuary for post-mortem. At the spot he recorded the statements of the P.Ws. Liaqat Ali, F.C. produced the last worn clothes of the deceased before the S.I. who took it into possession vide memo. Exh.P.B. He got prepared site plan Exh.P.E. and Exh.P.E./1 by Rabnawaz Patwari Halqa (P.W.6). On 18-12-1991, the Investigating Officer arrested the appellant and his co-accused. The appellant led to the recovery of revolver .32 bore and four live bullets P.5/1-4, which were taken into possession vide memo. Exh.P.C. After completing legal formalities, the S.I. submitted the challan in the Court.

3. On 8-12-1991, Dr. Abid Mahmood (P.W.5) conducted post-mortem examination on the dead body of Rashid Ahmad and found a circular lacerated wound, 8 c.m. on the front side of abdomen. Margins were inverted. Wound lead into the peritoneal cavity from right to left. It was an entrance wound of fire-arm. In the opinion of the doctor death was due to profused bleeding coming from loops of intestine and mesenteric artery and also the fecal matter which came out of intestines perforations, which led to peritonitis and collectively caused shock. The injury was ante-mortem and incompatible with life in the ordinary course of nature.

4. The appellant when examined under section 342, Cr.P.C. denied the prosecution allegations, professed innocence. He disowned the recovery of revolver. He declined to make statement under section 340(2), Cr.P.C. and no evidence was led in defence. He explained the case against him in the following words:-- "The P.Ws. are inimical towards me. Except recovery witnesses, all other witnesses are related inter se. I have been falsely involved in this case. In fact, it was unwitnessed occurrence and was a blind murder. Rashid deceased was murdered by some unknown enemies at the last hours of night somewhere. Complainant party came to know about the occurrence after the death of Rashid Ahmad. Therefore, case was registered after inordinate delay. Preliminary investigation was conducted and then after consultation and deliberation, I was involved falsely in this case due to enmity. The deceased was on inimical terms with many persons including his in-laws."

5. The learned trial Judge believing the prosecution evidence convicted and sentenced the appellant as indicated above.

6. The learned defence counsel contended that F.I.R. was recorded after preliminary investigation; hence no reliance can be placed upon this dubious document. Both the eye-witnesses are the chance witnesses of the occurrence and their evidence is against the medical evidence. The motive, though alleged, yet remained unproved; hence prosecution has failed to prove its case beyond reasonable doubt. Even if the presence of the eye-witnesses is accepted for the sake of arguments, still no conviction can be recorded on their evidence without any independent corroboration, as they involved Muhammad Aslam and Ghulam Rasool, acquitted accused, falsely in the case. The investigation of this case was not verified by any senior Police Officer, hence it would not be safe to rely upon the evidence collected in this case. The recovery of pistol at the instance of the appellant is not free from doubt, hence the appeal be accepted and the appellant be acquitted. However, the sentence of death needs consideration.

7. The learned counsel for the State supported the impugned judgment. The learned counsel for the complainant submitted that the learned trial Judge has erred in law by not awarding compensation under section 544-A, Cr.P.C. to the heirs of the deceased, which is mandatory; hence compensation be awarded to the complainant party.

8. We have gone through the record of the case with the able assistance of the learned counsel and have examined carefully the respective contentions of the learned counsel for the,parties. No doubt, Muhammad Sharif P.W.1, an eye-witness in this case, is the father of Rashid Ahmad deceased, but mere relationship in the absence of any hostility, per se, is no ground to discard his straightforward and confidence inspiring evidence, which is getting further corroboration from the medical evidence. There is no proof on the record to show that the F.I.R. was recorded after preliminary investigation, on the contrary, the complainant made statement Exh.P.A./i with great promptitude at 11-45 a.m which excludes the possibility of speculation and false involvement. The occurrence took place in the broad daylight; hence both the eye-witnesses were in a position to correctly recognize the real assailant. The acquittal of the two co-accused of the appellant, does not impair the intrinsic worth of the prosecution evidence, as the learned trial Judge acquitted Muhammad Aslam and Ghulam Rasul by way of abundant caution, as there was no independent corroborative evidence available on the record to connect them with the crime, because, fatal shot is attributed to the appellant. Ghulam Farid P.W.2, the other eye-witness of the occurrence, is an independent witness and had no enmity with the appellant neither any animosity was suggested to him nor proved. He has given very reasonable and plausible explanation for his presence at the scene and his statement too is getting ample support from the medical evidence, as well as from promptly lodged F.I.R. He withstood the test of lengthy cross -examination. We find no justification to disbelieve him; hence the appeal has no merit, which is dismissed accordingly. 9., We have given our anxious consideration to this aspect of the case, what should be the appropriate sentence, in view of the extreme youth of the appellant, who was seventeen years of age at the time of occurrence coupled with this fact that the prosecution did not produce any direct evidence to prove the motive in this case. We find substantial force in the submission of the 13 learned defence counsel that in these circumstances, the extreme penalty of death is not called for, so while maintaining the conviction of the appellant under section 302(b), P.P.C. we reduce the sentence to imprisonment for life and refuse to confirm the sentence of death imposed upon the appellant.

10. We also direct that the appellant shall pay Rs.10,000 (ten thousand only) as compensation to the legal heirs of the deceased, which is mandatory, or in default to undergo six months' R.I. The appellant shall be entitled to the benefit of section 382-B, Cr.P.C.

11. The reference is rejected, the appeal and the revision petition are disposed of accordingly. N.H.Q./M-1899/L Sentence reduced.