2006 PLP 2423 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

The appellant Aurangzeb alias Rangu was tried by the learned Sessions Judge, Ferozewala, in lieu of case F.I.R. No.404 registered at Police Station, Narang on 24-12-1994 for offences under sections 302/148/149, P.P.C. Vide judgment dated 30-9-2000, the learned trial Judge convicted the appellant for offence under section 302 (a), P.P.C. and sentenced him to death.

2. Aggrieved by his above noted conviction and sentence, the appellant has filed the instant appeal, while the learned trial Court has made a reference bearing Murder Reference No.488 of 2000 seeking confirmation or otherwise of death sentence awarded to the appellant. Both these matters are being decided through this consolidated judgment.

3. It may be mentioned here that the appellant was booked in this case along with Shahbaz, Muhammad Azhar, Javed Azhar and Muzammal Azhar, who were tried and acquitted by Mr. Khalil Ahmad Anwar, learned Additional Sessions Judge, Ferozewala, vide his judgment dated 18-3-1999. No appeal against their acquittal has been filed. The appellant was declared proclaimed offender and after his arrest he was tried and convicted and sentenced, as indicated in para.1 above, vide judgment dated 30-9-2000 handed down by Mr. Zahoor-ul-Haq Rana, learned Additional Sessions Judge, Forezewala.

4. Precisely, the facts of the case per F.I.R. Exh.P.A. lodged at the instance of Muhammad Ayub, complainant/P.W.4, are that on 24-12-1994 at about 10-00 a. m. when the complainant and his sons Muhammad Qayyum (deceased) and Sakhawat were present in front of their house, Shahbaz armed with .222-rifle, Muzammal Azhar armed with .222-rifle, Jawad Azhar armed with .222-rifle, (all acquitted co-accused), Aurangzeb alias Rangu, convict/appellant, armed with rifle and Kaka armed with .12-bore gun (acquitted accused) came there. Muhammad Shahbaz raised Lalkara that Muhammad Qayyum be taught a lesson for forcibly passing the troller, whereupon the complainant started seeking pardon from Muhammad Shahbaz etc. and asked his sons Muhammad Qayyum and Sakhawat to go to the house. In the meanwhile, Maqsood Nasir and Sikandar/P.W.6 residents of Nangal Waris, who had come to the village of the complainant, also reached the spot after hearing the noise. Aurangzeb alias Rangu, appellant fired from his rifle, hitting Muhammad Qayyum on the back side of his head, as a result of which Muhammad Qayyum fell down. The other accused also started firing. The complainant and his companions saved their lives by hiding themselves behind the walls. The accused persons ran away while raising Lalkaras and causing aerial firing. Muhammad Qayyum died at the spot. The motive behind the occurrence was that the complainant party had sold Bela (Shrubs and plantation of the riverine belt). Shahbaz etc. did not allow the purchasers to pass their troller, whereupon a quarrel took place between Muhammad Qayyum and Shahbaz etc. and the accused had threatened Muhammad Qayyum with dire consequences. Shahbaz etc. the five accused, committed the murder of the deceased. The occurrence was allegedly seen by Sakhawat Ali, Maqsood Nasir and Sikandar Ali/P.W.6 besides the complainant.

5. Muhammad Iqbal, A.S.-I./P.W.5, after registration of the F.I.R. (Exh.P.A.) at the instance of the complainant, went to the place of occurrence, prepared site-plan thereof Exh.P.E., collected blood stained earth from the spot through memo. Exh. P. F. and sent the dead-body for post-mortem examination. After post-mortem examination, the last worn clothes of the deceased, consisting of Shalwar P.1, Shirt P.2, Banyan P.3, Jersy P.4 and socks P.5 were taken into possession through Memo. Exh.P.G. On 30-1-1995, the appellant was got declared proclaimed offender. On 26-2-1999, Muhammad Akram, S.-I./P. W.11, formally arrested Aurangzeb alias Rangu, appellant, from Police Station, Sadar Kamoke where he was confined in connection with some other case and interrogated from him. The appellant led to the recovery of .222-rifle which was unloaded and two dead bullets and one live bullets were found, which along with the said rifle were taken into possession through Memo. Exh.P.G., attested by Ghulam Rasool Constable/ P.W.B.

6. To substantiate its version at the trial, the prosecution examined eleven witnesses. Ocular account was furnished by Muhammad Ayub/P.W.4 and Sikandar Ali/P.W.6. In addition to that they also stated about the motive. The recovery of .222-rifle effected at the instance of the appellant was sought to be testified by Ghulam Rasool Constable/P.W.8 and Muhammad Akram, S.-I./P.W.11. Dr. Iftikhar Ahmad/P. W.1, who conducted post-mortem examination on the dead-body of the deceased, while observing one fire-arm punctured entry wound 2.5 c.m. in dia x brain matter deep on left head, 7. c.m. posterior to left ear, one fire-arm punctured exist' wound 2 c.m. in dia x brain matter deep on right forehead, closed to hairy margin, 8 c.m. anterior to right ear and 6 c.m. above right eyebrow and abrasion 3 c.m. x 1.5 c.m. on left temple, opined that death had occurred due to injuries Nos.1 and 2, which were sufficient to cause death in the ordinary course of nature. The rest of the evidence was formal in nature and need not be discussed. After closure of the prosecution evidence, the statement of the appellant under section 342, Cr.P.C. was recorded, wherein he pleaded his innocence and false implication. He further stated that in the year 1994 he was working in Karachi as labourer. However, neither the appellant appeared as his own witness under section 340 (2), Cr.P.C. nor did he produce any witness in his defence.

7. Learned counsel for the appellant submits that both the P.Ws. were partisan witnesses, who were disbelieved qua the four acquitted co-accused, so their statements could not be relied against the appellant in the absence of independent corroboration, which was lacking in this case; that the F.I.R. was registered after a delay of more than 4-1/2 hours although the distance between the spot and the police station was ten miles; that the medical evidence does not support the ocular account, as the injury appeared to be caused by .12-bore cartridge and not by pellet and the doctor remained indecisive about it; that no recovery evidence was available against the appellant and as far as abscondence was concerned, that can also be taken as a proof of innocence; that the motive was set down in the F.I.R. but the same could not be proved during trial and the P.Ws. shifted to a different motive which was also not convincing and that in any case, the dispute was between the deceased and the acquitted accused Shahbaz against whose acquittal no appeal has been filed; that prosecution case is replete with doubts and the appellant merited acquittal. The learned counsel have lastly argued that it was not a case of capital punishment, as the deceased was involved in many cases and was of questionable character and in such like circumstances, the Honourable Supreme Court had not inflicted the extreme penalty of death. Reliance has been placed on the case of Mushtaq Ahmad v. The State PLD 2004 SC 150.

8. Conversely, the learned A.A.-G., assisted by Mr. S.D. Qureshi and Chaudhry Muhammad Nazir, Advocates, for the State has submitted that it was a day light occurrence; that the matter was reported to the police with promptitude; that the ocular account is fully supported by the medical evidence as well as the abscondence of the appellant; that the acquittal of the rest of the accused would not benefit the appellant, as they were acquitted for the reason that they had not fired at the deceased and their fires though 15/16 in number did not hit the P.Ws. they have supported the judgment passed by the learned trial Court.

9. We have heard the learned counsel for the parties and have also gone through the entire record.

10. It is a daylight occurrence; the parties were known to each other and, thus, it was not a case where the question of identification was involved. P.W.4 Muhammad Ayub is father of the deceased, while Sikandar Ali, P.W.6 is not closely related to the complainant or the deceased and belongs to the brotherhood of the complainant as well as that of appellant. Neither Muhammad Ayub nor Sikandar Ali had any existing serious enmity with the appellant, so as to involve him in a false case. Learned counsel for the appellant has laid much stress on the fact that both the P.Ws. were disbelieved qua the acquitted four accused. It is common knowledge that unfortunately, in our society the innocent relatives of the main accused are also roped in the case so that they may not pursue the matter in the Courts. It was for that reason that principle of sifting of grain from the chaff was introduced. There was no allegation against the acquitted accused that they had fired at the deceased. The only allegation against them was that they fired at the P.Ws. and that too ineffectively. Thus, their acquittal would not benefit the appellant. Both the complainant and P.W.6 were subjected to lengthy cross-examination. Their statements remained consistent to the extent of the appellant. No benefit can be given to the appellant for the minor contradictions which can crop up due to lengthy cross-examination and also for the fact that the statements of the P.Ws. were recorded after almost six years of the occurrence. The ocular account is supported by the medical evidence. However, the prosecution failed to produce evidence of recovery of weapon from the appellant during the trial. Similarly, the evidence of abscondence could not be satisfactorily proved, as no documentary evidence was produced during trial nor any constable was produced to show that he had gone to serve notice upon the appellant on specified dates. It merely rests on the passing reference of Investigation Officer/P.W.5, while his statement was being recorded. After scanning the entire evidence, we have concluded that the statements of the eye-witnesses to the extent of the appellant are supported by the medical evidence and corroborated by the factum that the occurrence took place in front of the house of the complainant and that the matter was reported at the police station on the same date within 4-1/2 hours. Thus, in our opinion, the prosecution has proved its case against the appellant beyond doubt.

11. Now coming to the sentence in this case, it has been noticed by us that the motive was set in the F.I.R., according to which the complainant party sold the shrubs and plantation of the riverine belt. Shahbaz and others did not allow the troller of the purchaser to move round and for that reason a quarrel took place between deceased and Shahbaz etc. During trial, the complainant stated that the motive behind the murder was clash between the parties with regard to removing of Silki Kana. He further stated that he tried to pass the troller from the land owned by him but the same was obstructed by the accused party, as the troller was being driven by his deceased son. Now this was never mentioned in the F.I.R. On the same point, P.W.6, Sikandar Ali stated that he had stated before the police that there was dispute between complainant and accused party regarding the passing of troller. He was confronted with his statement recorded by the police, wherein it was not found to be so recorded. It is also pertinent to note that in F.I.R., the name of only Shahbaz was mentioned. Obviously, the complainant has taken a major shift from the motive, which cannot be lost sight of. As noted above, according to F.I.R., the troller which used to move around belonged to the persons who had purchased the shrubs and plantation and not to the complainant. Similarly, it was not mentioned in the F.I.R. that troller was being driven by his son. Needless to say that no independent witness was produced to prove the motive nor any purchaser of shrubs was produced. It is true that it is not necessary for the prosecution to set motive in every case and it is also true that the weakness of motive would not damage the prosecution case but when a particular motive is set by the prosecution and the same is not proved and then it sets a different motive or a modified motive during trial, it would effect the quantum of sentence. We are fortified in our opinion by placing reliance on the cases of Jehanzeb and another v. The State and others 2003 SCMR 98, wherein it was observed "Regarding motive, it has been consistently held by this Court that where motive is alleged by the prosecution but not satisfactorily proved, then this factor may be considered while deciding the quantum of sentence." And Muhammad Nawaz Khan v. Mubarak Ali and others 2000 SCMR 1582, wherein it was held that motive as set up by the prosecution having not been proved, sentence of death of other accused was rightly altered to imprisonment for life. It is also in evidence that the deceased was involved in many cases. A list of cases pending against him is available at page 84 of the Paper Book in the shape of Exh.D.C. and the case law, i.e. Mushtaq Ahmad's case PLD 2004 SC 150, cited by the learned counsel for the appellant has some relevance. It has also been noticed by us that the learned trial Court has convicted the appellant wrongly for offence under section 302 (a), P.P.C., as the proof required for Qatl-i-Amd liable to Qisas, as required under section 304, P.P.C., was not available on the record.

12. The upshot of the whole discussion is that we alter the conviction of the appellant from offence under section 302(a), P.P.C. to offence under section 302(b), P.P.C. and sentence him to life imprisonment, as the same would meet the ends of justice in the circumstances, of the case. Benefit of section 382-B, Cr.P.C. is given to the appellant. The learned trial Court failed to comply with the provisions of section 544-A, Cr.P.C., hence, we direct the appellant to pay Rs.1,00,000, as compensation, to the legal heirs of the deceased. In default of realization or payment thereof the appellant would suffer six months' S.-I. The death sentence is not confirmed.

13. With the above modification in the conviction and sentence, the appeal is partly allowed. The Murder Reference is answered in the negative. H.B.T./A-96/L Order accordingly.