2017 P Cr (PLP)

TARIQ SALEEM SHEIKH, J.

The Appellant, Abdul Hafeez, has filed two criminal appeals, one through a private counsel (which bears Crl. Appeal No. 576 of 2011) and the other through the Jail Superintendent (which bears Crl. Appeal No. 730-J of 2012) to challenge his conviction and sentence which was awarded to him by the learned Sessions Judge, Sahiwal, in a private complaint filed by Muhammad Saleem son of Nousher Khan for offences under sections 302/34, P.P.C. for the murder of his father Nousher Khan, which was committed within the territorial limits of Police Station Noor Shah, Sahiwal, on 18-2-2010. Besides this appeal, we also have Murder Reference No.70 of 2011 which has been sent to us by the learned trial Court under section 374, Cr.P.C. for confirmation of death sentence awarded to the Appellant. Then we have another case Crl. Revision No.299/2011 filed by the Complainant, Muhammad Saleem, which seeks enhancement of the compensation awarded to the legal heirs of Nousher Khan deceased under section 544-A, Cr.P.C. We propose to decide all these matters through this consolidated judgment.

2. The learned Sessions Judge, Sahiwal, vide judgment dated 15-6-2011 (the "Impugned Judgment") convicted the Appellant under section 302(b), P.P.C. to death with payment of fine of Rs.100,000/- as compensation in terms of section 544-A, Cr.P.C. to be paid to the legal heirs of Nousher Khan deceased. In case of non-payment of compensation, it was ordered, the Appellant shall undergo simple imprisonment for a further period of six months. The Complainant Muhammad Saleem, had filed the private complaint against three persons. While the learned trial Court convicted the Appellant as aforesaid it acquitted his two co-accused, namely, Habib Ullah (mentioned as Habib Ahmad in the Impugned Judgment) and Khalil Ahmad.

3. Facts relevant for our present purpose are that on 15-5-2010 the Complainant, Muhammad Saleem, filed a private complaint (Ex.PA) alleging that, on 18-2-2010 at about 10 p.m., he was at home with his father, Nousher Khan. His uncles Muhammad Siddique and Muhammad Umar had also come and they were discussing engagements for his marriage which was scheduled for 21-2-2010. In the meanwhile, there was a knock at the door whereupon Nousher Khan went out to see who was there. The Complainant, Siddique and Umar followed him. When Nousher Khan opened the door, he found the Appellant, and Khalil Ahmad, armed with pistols .30-bore, and Habib who was empty handed. Habib commanded that Nousher Khan be taught a lesson for contesting election on which the Appellant fired a shot at Nousher Khan which hit him on his left flank. Khalil also shot at him which hit him below his ribs on the left side. The Appellant fired another shot which also hit Nousher on his left flank and he fell down. The accused fled away from the scene firing in the air. The Complainant claimed that he, Siddique and Umar were the eye-witnesses of this murder having seen it in the light of electric bulbs. The Complainant removed his injured father to the Civil Hospital, Sahiwal, by the 1122 ambulance but he could not survive and succumbed to his injuries. The Complainant alleged that the motive behind this murder was election rivalry. According to him, Nousher Khan was returned as a General Councillor in the previous elections for the Local Bodies and was a candidate for the forthcoming elections against the Appellant. He claimed that the Appellant wanted to stop Nousher Khan from the contest but when he refused to withdraw he killed him. On an earlier occasion he had also extended threats of dire consequences to him. The Complainant had promptly lodged FIR No.82/2010 dated 19-2-2010 about this crime with Police Station Noor Shah, Sahiwal, but the accused party influenced the investigation and spoiled the prosecution case. The Complainant, therefore, exercised his right to file a private complaint. In FIR No.82/2010, the police declared Habib innocent and challaned the Appellant and Khalil.

4. The learned Court below recorded cursory evidence of the Complainant and then summoned the Appellant and his co-accused Khalid and Habib for trial. It framed the charge on 31-7-2010. All the accused pleaded innocence and claimed trial.

5. The prosecution examined a total of 10 witnesses to prove the charge. While every witness has his own importance some are vital. Complainant Muhammad Saleem appeared as PW-1 and reaffirmed the contents of the private complaint Ex.PA, PW-2 Muhammad Siddique, who was one of the eye-witness of the occurrence, corroborated the testimony of PW-1 Muhammad Saleem. Besides, CW-1 Dr. Nadir Shah, Medical Officer. RHC, who had conducted the post-mortem of Nousher Khan deceased. and police officers CW-7 Mohyuddin S.I. and PW-4 Muhammad Arif S.I. who investigated this case, also recorded their testimonies before the learned trial Court.

6. The prosecution inter alia exhibited copy of private complaint Ex.PA, Memo of Possession of Empty Cartridges Ex.PB; Memo of Possession of Pistol .30-bore attributed to the Appellant Ex.PC-C/1; Report of the Forensic Science Laboratory Ex. PD; Post-mortem Report Ex.CW 1/A, Injury Statement Ex.CW1/C; Inquest Report Ex.CW-1/D; Memo of Possession of Clothes of Deceased Ex.CW-3/A; copy of Site Plan Ex.C2/A. Besides, it also exhibited the following articles: three empties of pistol .30-bore P1/1-3, pistol .30-bore P2 recovered from the Appellant, last Worn Clothes of Nousher Deceased Shirt Ex.P3 and Shalwar Ex.P-4. The prosecution closed its evidence on 07-05-2011.

7. After the completion of the prosecution evidence, the learned trial Court recorded the statements of the accused persons under section 342, Cr.P.C. All the accused refuted the evidence recorded during the trial and pleaded innocence. In response to the question as to why the case in hand was registered against him, the Appellant stated that it was a blind murder and Nousher was done to death by some unknown assailants when he was all alone on the fateful night. He stated that the PWs were also not present at the spot when the occurrence took place. Neither the Appellant nor his co- accused recorded their statements under section 340(2), Cr.P.C. in disproof of the charge levelled against them. Further, only the Appellant opted to produce evidence in his defence. On 11-5-2011, he tendered licence of pistol P2 Ex.DB, certified copy of FIR No. 92/2007 Ex. DC, certified copy of FIR No.649/2001 Ex.DD and Letter of Rescue Team-1122 Ex.DE and crossed his defence evidence.

8. After the conclusion of trial, the learned Sessions Judge convicted and sentenced the Appellant as mentioned in the opening part of this judgment. However, it acquitted his two co-accused. The Complainant has not filed any appeal in this Court to assail their acquittal. He has only filed Crl. Revision No.299/2011 for enhancement of the compensation awarded to the legal heirs of Nousher Khan deceased under section 544-A, Cr.P.C.

9. The learned counsel for the Appellant argued that the Appellant was innocent and had been falsely implicated in the instant case. He contended, firstly, that it was a blind murder and none of the PWs was present at the spot at the relevant time. Secondly, PW-1 Muhammad Saleem and PW-2 Muhammad Siddique were close relatives and were also interested witnesses. As such, their statements could not be relied upon unless they were corroborated by cogent evidence. Thirdly, there were material contradictions in the statements of the PWs and medical evidence was also in conflict with the ocular account. Fourthly, the alleged recovered empties, i.e. three cartridges of pistol .30-bore Ex.PB, were sent to the Forensic Science Laboratory after the arrest of the Appellant by planting false recovery of his licensed pistol P2 and procuring fresh empties therefrom. As such, the report of the Forensic Science Laboratory Ex.PD did not advance the case of the prosecution. Fifthly, the case of the Appellant was at par with that of Khalil Ahmad, the acquitted co-accused. The Appellant could not be convicted on the same evidence on which his co- accused had been acquitted. And lastly, the prosecution had failed to prove the motive alleged in the private complaint Ex.PA.

10. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the Complainant supported the Impugned Judgment and argued that the prosecution had proved its case against the Appellant beyond reasonable doubt. He submitted that the FIR regarding the occurrence was promptly lodged, the Appellant was nominated therein and a specific role was attributed to him. Therefore, the question of false implication did not arise in this case. He argued that PW-1 Complainant Muhammad Saleem was constrained to file private complaint because the police were spoiling the prosecution case through dishonest investigation. He next contended that the presence of the PWs on the place of occurrence was proved. And lastly, the case of the Appellant was distinguishable from Khalil Ahmad, the acquitted accused, and the learned trial Court had convicted the Appellant after a reasoned judgment. He, therefore, prayed that the conviction and sentence awarded to the Appellant by the learned trial Court may be upheld.

11. Arguments heard. Record perused.

12. According to the prosecution case, the place of occurrence was the main gate of the house of Nausher Khan deceased and his son, PW-1 Muhammad Saleem. Since the marriage of PW-1 was scheduled for 21-2-2010 (i.e. just after two days when Nausher was murdered), the other PWs had gathered there to discuss arrangements for the event. They were in the house when the occurrence took place. This fact was expressly stated not only in the private complaint Ex.PA but was also testified by PW-1 Muhammad Saleem and PW-2 Muhammad Siddique. The Appellant did not deny this fact and did not attempt any question while cross-examining the PWs to establish that no such event was scheduled. Even no suggestion was put to the PWs in this regard. In "Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi" (1991 SCMR 2300), the august Supreme Court held that "where on material part of his evidence a witness is not cross-examined it may be inferred that the truth of such statement has been accepted. Statement of a witness which is material to the controversy to the case particularly when it states his case and the same is not challenged by the other side directly or indirectly, then such unchallenged statement should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence." This rule was reiterated in "Muhammad Akhtar v. Mst. Manna and 3 others" (2001 SCMR 1700) and followed in "Land Acquisition Collector, Islamabad and another v. Alauddin and others" (PLD 2008 Pesh. 3), "Mst. Jannat and others v. Mst. Maqsood and others" (2011 YLR 3073), "Rehman Ullah v. Wazir Zada" (2011 YLR 3045) "Mehmood Akram Qadri and others v. Mirpur Development Authority" (2012 MLD 1562), "Ali Haider v. Mubarak Din Khan and another" (2012 YLR 1598). In the light of these rulings it stands established that the marriage of PW-1 Muhammad Saleem was scheduled for 21-2-2010.

13. It had also come in the evidence that the PWs were closely related to each other. PW-2 Muhammad Siddique was the real paternal uncle while PW Muhammad Umar (not produced) was the maternal uncle of PW-1 Muhammad Saleem. Therefore, the presence of the PWs at the place of occurrence appears to be natural. The fact that the matter was promptly reported to the police at 11:50 p.m. in pursuance whereof FIR No.82/2010 was lodged at 12:15 a.m. in the same night also supports the view that the PWs were present at the spot at the relevant time and obviates the possibility of concoction.

14. Admittedly, it was a night time occurrence. The PWs deposed that they identified the Appellant in the light of electric bulbs. Since the Appellant's case was that Nousher deceased was killed by some unknown assailants when he was all alone on the night of occurrence, the prosecution did not seriously question the source of light. On the other hand, the prosecution made it sure to mention the existence of electric bulb at all relevant times during the course of investigation and trial.

15. The argument of the learned counsel for the Appellant that since the PWs were close relatives of the deceased, their statements could not be relied upon without corroboration by independent evidence is also ill-founded. It is well settled that an interested witness is one who is partisan or inimical towards the accused or has a motive previously or cause of his own to falsely implicate the accused in the crime. Mere relationship of a witness with a deceased or very fact that he is interested in prosecution of the accused on account of occurrence, would not club him as an interested witness. Reliance is placed on "Muhammad Ismail v. Khushi Muhammad and 7 others" (PLD 1974 SC 37), "Feroze Khan v. The State" (2002 SCMR 99), "Muhammad Aslam and 3 others v. The State" (2008 SCMR 1040), "Ijaz Ahmad v. The State" (2009 SCMR 99) and "Talib Hussain and others v. The State and others" (2009 SCMR 825). Since we have already observed that the presence of the PWs at the place of occurrence has been established, we hardly find that there was any reason for them to substitute the Appellant for the real culprits.

16. The learned counsel for the Appellant vehemently argued that the prosecution had failed to prove the place of occurrence. In order to substantiate this argument, he drew our attention to the fact that no blood stained earth was recovered from the spot. We have considered this argument in the light of the statement of CW-1 Dr. Nadir Shabbir who deposed that the clothes of Nousher deceased were heavily stained with blood and corresponding holes were present on his shirt P

4. This statement shows that bleeding had drenched the wearings of the deceased. It was, therefore, possible that the blood actually did not flow on the ground so as to enable the investigation officer to collect blood-stained earth from the spot. In a somewhat similar situation, in "Muhammad Rafiq alias Titai v. The State" (PLD 1974 SC 65), the Hon'ble Supreme Court held that non- recovery of blood stained earth from the place of occurrence did not falsify the prosecution version.

17. While appraising the ocular evidence, we observe that PW 1 Muhammad Saleem and PW-2 Muhammad Siddique were consistent and corroborated each other on all material points, including time, place of occurrence and role of the Appellant. These PWs were unanimous that the Appellant caused two fire-arm injuries to Nousher deceased with his pistol .30-bore within their view which hit him on his left flank. We find that the ocular evidence was fully corroborated by the Post-mortem Report Ex.CW1/A according to which the following injuries, all of which were ante- mortem, were found on the body of the deceased. Injury No.l. A lacerated wound i.e. with burnt inverted margins 0.7 x 0.7 at the anteriolat, aspect of left side of chest, about 9 to 11 cm inferiorlat. To the left nipple. Injury No.2. A lacerated wound with burnt inverted margins 1 cm x 1-1/2 cm on the left lateral chest, about 4 to 5 c.m inferior to Injury No.1. Injury No.3. A lacerated wound with averted margins, about 1 cm x 1.3 cm at the posteriolat aspect of left. lower chest, about 17 to 18 cm lateral to Injury No.2. It was exit wound of Injury No.2. Injury No.4. A lacerated wound with averted margins, about 0.5 cm x 1 cm on the lateral aspect of the right side of chest about 13 to 14 cm inferiolat to the right nipple. It was exit wound of Injury No.l.

18. The Appellant challenged the recovery of crime empties brought on record through (Ex.PB) and pistol P

2. His contention was that the empties allegedly recovered trom him were sent to the Forensic Science Laboratory after his arrest by planting false recovery of his licensed pistol P2 and procuring fresh empties therefrom. Inasmuch as the crime empties were retained by the police in the Maalkhana without any plausible reason and were sent after the recovery of the crime weapon, we are inclined to agree with the learned counsel for the Appellant that this recovery is doubtful.

19. We now take up the motive. In the private complaint Ex.PA. election rivalry was stated as the motive for the occurrence. It was alleged that Nousher Khan deceased was elected as a General Councillor in the previous elections for the Local Bodies and was also a candidate for the forthcoming elections. It was alleged that the Appellant was contesting for the same seat and he wanted that the deceased should not stand against him so he killed him. The prosecution produced PW-1 Muhammad Saleem and PW-2 Muhammad Siddique to prove the motive. These PWs were coherent in their testimony and the Appellant failed to discredit them. Even otherwise, CW-7 Mohyuddin S.I., who partly investigated this case, testified that during his investigation he found that the motive of political rivalry attributed to the Appellant was correct and he recorded that fact in Zimni No.9.

20. The learned counsel for the Appellant argued that the motive pleaded by the prosecution could not be believed because during his testimony PW-1 Muhammad Saleem made a dishonest improvement in respect thereof when he stated that the acquitted co-accused Khalil Ahmad and Nousher deceased had a quarrel on Eid-ul-Azha when the former was playing loud music on a deck and the latter asked him to stop it. We are not inclined to agree with the learned counsel on this score for two reasons. First, the improvement was with respect to Khalil only who was acquitted by the learned trial Court. It did not pertain to the Appellant. Secondly, the prosecution was consistent at all relevant times with respect to the motive that it had alleged against the Appellant. The same motive was alleged in the FIR Ex.DA/l (which we have already seen was promptly lodged), in the private complaint (Ex.PA) and during the trial. Nothing was brought on the record to show that Nousher Khan was not elected in the previous elections and was not contesting the next elections against the Appellant.

21. We now advert to the final contention of the learned counsel for the Appellant that the Appellant could not be convicted on the same evidence on which his co-accused Khalid had been acquitted. We have noted that the case of the Appellant is quite distinguishable from his co-accused and the learned trial Court has discussed this issue in Paragraph-26 of the Impugned Judgment. We fully endorse its findings. Although Khalid was nominated in the private complaint Ex.P-A and a specific role was attributed to him, medical evidence did not corroborate it. Further, motive qua him was not proved and the crime weapon was also not recovered from him. The Investigation Officer, CW-7 Mohyuddin S.I., also deposed that during his probe he found that fire-arm injuries inflicted by the Appellant were tried to be falsely attributed to Khalid.

22. After a thorough appraisal of the evidence, we conclude that the prosecution has proved its case against the Appellant beyond any reasonable doubt. Therefore, we uphold the conviction recorded by the learned trial Court.

23. We have given anxious thought to the quantum of sentence that is to be awarded to the Appellant. Since we have found that the prosecution has not been able to prove recovery of the crime weapon pistol P2, as per dictum laid down by the Apex Court, it can be considered as one of the mitigating circumstance. As such, in our opinion, extreme penalty of death was not warranted in this case. Consequently, while maintaining the conviction of Appellant Abdul Hafeez under section 302(b), P.P.C. recorded by the learned trial Court, we reduce his sentence from death to imprisonment for life as Tazir with benefit of section 382-B, Cr.P.C. Subject to the above modification in the sentence, Criminal Appeals Nos.576 of 2011 and 730-J of 2012 are dismissed.

24. Murder Reference No.70 of 2011 for confirmation of death sentence of the Appellant is answered in the negative.

25. So far as Crl. Revision No.299/2011 is concerned, the learned counsel for the Petitioner/Complainant has failed to convince us that the learned trial Court has exercised the discretion vested in it arbitrarily or capriciously while deciding the quantum of compensation that is to be awarded to the legal heirs of Nousher Khan deceased under section 544-A, Cr.P.C. We find no ground to interfere in the decision of the learned trial Court on this score. Accordingly, this Criminal Revision is also dismissed. JK/A-33/L Order accordingly.