2010 PLP 1001 (YLR)

MIAN MUHAMMAD NAJAM UZ ZAMAN, J.

Appellant namely Muhammad Aslam son of Ghulam Jillani along with two other co-accused was tried by Additional Sessions Judge, Sargodha in case F.I.R. No. 169/2003, dated 5-8-2003 for the offence under sections 302/109, P.P.C. registered at Police Station Shahpur Saddar, District Sargodha, who vide judgment dated 6-5-2004 while acquitting co-accused convicted appellant under section 302, P.P.C. and sentenced him to death. Appellant was also directed to pay Rs.100,000 (Rupees one lac) as compensation to the legal heirs of the deceased, or in default whereof to undergo six months' S.I. Feeling aggrieved by the impugned judgment, appellant filed the instant appeal (Criminal Appeal 777/2004), whereas Trial Court also sent a reference (Murder Reference No.313/2004) seeking confirmation of death sentence awarded to appellant. We purpose to dispose of both these matters together through this single judgment.

2. Briefly stated facts of the prosecution case as penned in the F.I.R. (Exh.PE) got registered by complainant Haq Nawaz are that Mst. Zainab mother of about 40/42 years Ghulam Jillani accused, about 3 years ago she left the house of her' husband due to differences between the spouses and since then her whereabouts were not known. Statedly Muhammad Aslant and Muhammad Akram both sons of said Mst. Zainab and Ghulam Jillani accused suspected that she (Mst. Zainab) had been removed from the scene by Muhammad Nawaz deceased. On 5-8-2003 at about 5-30 a.m. complainant Haq Nawaz along with Ahmed Nawaz and Shaukat Iqbal P.Ws. was present at his plot (place of occurrence) when Muhammad Aslam armed with mausar also come their and while raising lalkara to teach a lesson to Muhammad Nawaz deceased for nor disclosing the whereabouts of his mother fired at Muhammad Nawaz which hit him on the chest who fell down, thereafter he also gave a blow with the butt of Mauser at the back side of the right hand of Muhammad Nawaz. Statedly Muhammad Nawaz succumbed to the injuries at the spot. Allegedly one day prior to the occurrence at Deegarvela, Muhammad Hayat and Rab Nawaz (P.Ws.) heard the conversation of accused Muhammad Akram, Muhammad Aslam and Rab Nawaz abetting the commission of said offence when they (P.Ws.) where passing near the Baithak of accused.

3. After the registration of F.I.R., Pervaiz Akhtar, S.-I. (P.W.9) conducted the formal investigation of this case. He visited the place of occurrence prepared injuries statement of Exh.PB, inquest report Exh. PC and sent the dead body to the mortuary for post-mortem examination. During spot inspection he took into possession blood-stained earth vide recovery memo. Exh.PJ, one crime empty P.9 vide recovery memo. Exh.PK, prepared rough site plan of the place of occurrence Exh.PL as well as in view of section 161, Cr.P.C. recorded statements of prosecution witnesses. During his investigation appellant Muhammad Aslam was arrested on 10-8-2003 and on 15-8-2003 he led to the recovery of Mauser P.4 along with five bullets P.5/1-5 which was taken into possession vide recovery memo. Exh.PG and on the same day appellant also got recovered rifle P.6, bag P.7 and eight bullets P.8/1-8, these articles were taken into possession vide recovery memo Exh.PH. Finally investigation agency after complying with legal formalities submitted challan before the Trial Court where prosecution produced twelve witnesses including Haq Nawaz PW.6 (complainant and Ahmed Nawaz PW.7 (eye witnesses of the occurrence).

4. Learned Trial Court also examined appellant under section 342, Cr.PC. who while answering to question "Why this case against you and why P.Ws. have deposed against you?", replied as under:-- "In fact three years back Mst. Zenab Bibi wife of Ghulam Jilani (my mother) was abducted by Rab Nawaz, Ahmed Nawz, Haq Nawaz P.Ws., Ghulam Abbas, Muhammad Hayat son of Dost Muhammad and Muhammad Ijaz son of Muhammad Nawz. I along with my father have been asking for the return of Mst. Zenab for last three year. We also filed a writ petition against Rab Nawaz etc. Ultimately a case under section 364, P.P.C. was registered against the above-said accused. Just to avoid the consequence of the abduction of Mst. Zenab a false case has been registered against me. In fact Muhammad Nawaz deceased was involved in 9 criminal cases in different Districts of Punjab, enemies were after him. He was murdered by some one during right time." Appellant did not make statement under section 340(2), Cr.P.C. however, produced Muhammad Amir D. W.1 in his defence. Learned Trial Court after appraisal of evidence vide judgment dated 6-5-2004 convicted and sentenced the appellant, as narrated earlier, hence this appeal.

5. Learned counsel for the appellant in support of his appeal submitted that Muhammad Nawaz deceased was done to death by some unknown assailants during the dark hours of the night but later on with mala fide intention appellant and his co-accused were involved in this case and none of the eye-witnesses who had appeared before the Trial Court or their names find mentioned in the F.I.R. were present at the relevant time; the said witnesses also fall within the category of interested witnesses and their statements could not be relied upon in the absence of any corroborative piece of evidence. Learned counsel further submitted that the medical evidence contradicts the ocular account and the recovery evidence relied upon by the prosecution was tailored during the investigation in order to strengthen the prosecution case. It was further submitted that according to prosecution's own case this occurrence had taken place in a thickly populated area but none of the residents of the locality had come forward in support of the prosecution case. With regard to motive for the commission of offence, learned counsel argued that no tangible evidence was produced before the Trial Court in order to prove this part of the prosecution case it could easily be said that prosecution had miserably failed to produce any evidence to this extent as well. Finally it was submitted that in the circumstances of the case learned Trial Court had erroneously convicted and sentenced the appellant. Conversely learned Additional Prosecutor-General while supporting the impugned judgment vehemently opposed the instant appeal.

6. After learned counsel for the parties at some length and going through the record we have observed that both the parties i.e. appellant and the complainant are closely related to each other. Muhammad Nawaz deceased was the maternal uncle of the appellant, whereas complainant Haq Nawaz (P.W.6) is the son of the deceased. The motive behind the occurrence as alleged in the F.I.R. and before the Trial Court was that about 3 years ago Mst. Zenab Bibi (mother of the appellant) had left the house because of some dispute with Ghulam Jillani (father of the appellant) and appellant had suspicion that Muhammad Nawaz deceased had concealed his mother at some unknown place. Allegedly on 5-8-2003 at 5-30 a.m., when Muhammad Nawaz deceased along with his son Haq Nawaz P.W.6 and nephew Ahmed Nawaz (P.W.7) was present at his plot (place of occurrence) when appellant being armed with a fire-arm (Mauser) also came there and made firing, as a result of which deceased received fire-arm injury on the chest. He also gave butt blows to Muhammad Nawaz on the right hand, as a result of which index finger of deceased was broken. The matter was reported to the policy by Haq Nawaz (P.W.6) within few minutes of the occurrence i.e. ninety minutes while disclosing all the minor details of the occurrence. The said promptness in lodging the F.I.R. is sufficient to rule out all the possibility of false involvement of the appellant. Before the Trial Court complainant Haq Nawaz (P.W.6) along with Ahmed Nawaz (P.W.7) had also supported the prosecution case while narrating the circumstances upon which appellant had committed the murder of Muhammad Nawaz. Their statements are in line with the facts find mentioned in the F.I.R. The presence of these witnesses at the relevant time seems to be very natural being owner of the plot where the occurrence took place. Even otherwise as observed earlier, both the said witnesses are closely related to the appellant and thus we see no reasons qua these witnesses to say that they had falsely deposed against the appellant. It is a case of promptly lodged F.I.R. against a single accused and in such like circumstances substitution by the kith and kin of the deceased while leaving the real culprit is a near phenomenon. The ocular account also finds support from the medical evidence, the location, duration and nature of injuries as observed by Dr. Sahabzada Nadeem-ur-Rasool (PW.1) are the same which had been explained by the witnesses. This ocular account further finds corroboration from the report of Forensic Science Laboratory Exh.PM which reveals' that the empty recovered from the spot had matched with the weapon of crime (pistol) which was got recovered by the appellant during the investigation. In the said backdrop of the matter. We are of the considered view that Prosecution has proved its case to the hilt against the appellant. However, as far quantum of sentence of appellant is concerned, we have observed, that it is a case of single fire-arm injury attributed to the appellant, the appellant was aggrieved of the conduct of the complainant party because whereabouts of his mother (sister of deceased) were not known for the last 3 1/2 years and the suspicion of the appellant was that the deceased had concealed his mother at some unknown place, the said motive part of the prosecution case has also not been denied by the appellant while making statement under section 342, Cr.P.C. For the said motive it could easily be said that the same was sufficient cause for a young man (appellant) to get revenge from the complainant party even after the lapse of 3 1/2 years especially when many attempts had already been made by the appellant party qua the recovery of Mst. Zenab Bibi by way of filing writ petitions before the High Court as apparent from the data available on the record. For the said reasons, we are persuaded to take a lenient view about the sentence of appellant. Accordingly while dismissing this appeal, sentence of the appellant is converted into imprisonment for life with the benefit of section 382-B, Cr.P.C. however, appellant shall pay the compensation on the same terms and conditions as fixed by the Trial Court. Resultantly death sentence awarded to appellant is not confirmed and reference (Murder Reference No.313/2004 is answered in the negative. H.B.T./M-112/L Order accordingly.