2006 PLP 1210 (MLD)

MUHAMMAD FARRUKH MAHMUD, J.

The appellant Muhammad Idrees, alongwith his father Abdul Sattar and paternal uncle Abdul Ghaffar, was tried by the learned Additional Sessions Judge, Sheikhupura, for offence under sections 302/34 P.P.C. in Complaint Case No.7 of 1993 (Exh.PA) filed by Muhammad Saleem/PW-1. Vide judgment dated 31-1-2001, the learned trial Judge, while acquitting his co-accused, convicted the appellant for offence under section 302 (b) P.P.C. and sentenced him to death plus payment of rupees twenty thousands as compensation to the legal heirs of the deceased, in default in payment whereof to further suffer R.I. for six months.

2. Aggrieved by his above noted conviction and sentence, the appellant has filed the instant appeal, while the learned trial Court has made reference bearing Murder Reference No.693 of 2001, seeking confirmation or otherwise of death sentence. Both these matters are being decided together by this consolidated judgment.

3. The brief facts of the case per complaint Exh. PA are that on 29-9-1992 at about 8.30 p.m. the complainant and his son Nawazish Ali were coming out from Mosque Noor Madina after having said their Isha Prayer, Muhammad Idress/appellant armed with 32-bore revolver, Abdul Ghaffar armed 12-bore gun and Abdul Sattar empty handed (both acquitted accused) were standing in the courtyard of the mosque in the light of bulb. Abdul Sattar raised Lalkara that Muhammad Saleem etc. be taught a lesson for having got registered a false case of Zina, whereupon Muhammad Idress fired at Nawazish Ali, hitting on his chest from front side, as a result of which he fell on the ground. The hue and cry raised by the complainant attracted Muhammad Rafiq/P.W.2 and Maqool Ahmad. Abdul Ghaffar threatened that whosever came near them would meet the same fate. Nawazish Ali succumbed to the injury at the spot.

4. The motive as set up in the complaint was that 10/11 years prior to the occurrence, Mst. Naziran Bibi, cousin of the complainant, was subjected to rape by Abdul Ghaffar and in that regard case bearing F.I.R. No.198/81 was registered against him at. the instance of Muhammad Rafiq, brother of Mst. Naziran Bibi, PW-2, at Police Station Khanqah Dogran for offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, wherein he was challaned, which annoyed Idrees etc. and on account of that grudge, the accused had committed the murder of Nawazish Ali.

5. It is further alleged in the complaint that at the instance of complainant, case F.I.R. No.323 was registered against the above said accused at Police Station Khanqah Dogran on 29-2-1992 for offences under sections 302/34 P.P.C., wherein the appellant and Abdul Ghaffar were arrested, while Abdul Sattar was provided opportunity to have his release on bail. Subsequently, Abdul Sattar and Abdul Ghaffar, co- accused, were placed in column No.2 of the challan, despite the fact that there was sufficient material available to connect them with the commission of the murder of the deceased. Feeling dissatisfied with the investigation of the police, the complainant filed the instant complaint.

6. To prove his version, the complainant examined five P.Ws. Ocular account was furnished by Muhammad Saleem/P.W.1 and Muhammad Rafiq/P.W.2. They also stated about the motive. Dr Khalid Mahmood/P.W.4 conducted post-mortem examination on the dead body of the deceased and found one punctured wound 1 cm x 1 cm alongwith charring into the lower part of front of right "chest near mid line. He also recovered one bullet from the dead body, which was sealed and handed over to the police. In the opinion of the doctor, the cause of death was the aforesaid injury which was sufficient to cause death in the ordinary course of nature. The duration between the injury and death was immediate,. while the time between death and post-mortem examination was within 24 hours: Muhammad Arshad Mahmood, Draftsman/PW-5, prepared scaled site-plan Exh. PC of the place of occurrence on the pointation of the witnesses and at the instance of the police. The statements of five C.Ws. were also recorded by the learned trial Court. Ghulam Fareed., A.S.-I./C.W.1 recovered pistol 30-bore at the instance of the appellant. Nazir Ahmad, A.S.-I. C.W.2, on receipt of complaint Exh.C.W.2 recorded formal F.I.R. Exh.PF. Syed Aun Muhammad, Inspector/C.W.3, recorded the statement of Muhammad Saleem, complainant, (Exh.PE) and sent the same to the police station where formal F.I.R. Exh.PE was registered. He also stated that after recording statement Exh.PF, he went to the spot, prepared injury statement Exh.PH inquest report Exh.PG and got the post-mortem examination on the dead body of the deceased. He also took into possession the blood stained earth from the spot and sealed the same into parcel vide memo. Exh. PK. He also took into possession the last worn clothes of the deceased, i.e. shirt P-1 and Shalwar P-2 through memo Exh. PM., Nazir Ahmed, Inspector. /C . W-4, arrested Muhammad Idrees appellant on 5-11-1992 and on 20-11-1992, he recovered pistol P-3 at the instance of the appellant and took the same into possession through memo. Exh.PN. After placing on record the report of Chemical Examiner Exh.PP, the prosecution closed its side.

7. In his statement recorded under section 342 Cr.P.C. the appellant pleaded his innocence and false implication in the case, stating that the deceased was done to death by some body else when electricity had gone off in the village and there was darkness all around the mosque; that according to police investigation, One Musa had' fired at Asghar against whom Musa had grudge on account of his bad relations with daughter of Musa, mistakenly taking Nawazish deceased as Asghar. He did not appear as his own witness under section 340 (2) Cr.P.C. He produced a document Exh. DC in his defence. However, he produced in his defence Tanveer-ul-Haq as DW-2, Incharge Grid Station, Hafizbad, who stated that supply of irrigation feeder remained suspended on 29-9-1992 from 2100 to 2200 hours and that Exh. DC was the certified copy of the entries of the official record regarding supply of electricity to the village. In his cross-examination, he admitted that the name of the village was not stated in Exh. D.C.

8. Learned counsel for the appellant has submitted that the P.Ws. have been disbelieved qua Abdul Sattar and Abdul Ghaffar, real father and uncle of the appellant; that it is most unnatural that a father would ask his minor son to accompany him for causing a murder and that too in a mosque; that the story of the prosecution is improbable; that P.W. 1 is not only father of the deceased but also inimically poisoned against the appellant and his other family members; that the statement of Muhammad Saleem/P.W. 1 is not corroborated by any other independent source; that the F.I.R. was recorded after due deliberations and, thus, did not support the prosecution case; that there were material discrepancies in the statements of P.Ws. and that of the Investigating Officer, as to where the dead body was lying; that the dead body was kept at the police station throughout the night, which was an abnormal circumstance; that the learned trial Court has rightly discarded the story of motive and that in any case, no reason existed for the murder of Nawazish by Muhammad Idrees. The learned counsel contends that eleven years prior to this occurrence, they involved uncle of the deceased in a false case and after eleven years involved his nephew Idrees in a false case; that the recovery of pistol does not advance the case of prosecution as no empty was recovered from the place of occurrence and the pistol was never sent to Forensic Science Laboratory; that the calibre of the revolver was wrongly defined in the F.I.R. The learned counsel submits that the prosecution case is replete with doubts and the appellant merits acquittal. In the alternate, the learned counsel has submitted that the appellant was a juvenile at the time of occurrence and the benefit of the provisions of Juvenile Justice System Ordinance may be extended to him. Conversely, the learned appearing on behalf of the State contends that the occurrence took place inside the mosque near the gate; that P. W.1 was present along with the deceased inside the mosque, while P.W-2. was entering the mosque, thus, both the P.Ws. were natural witnesses; that the grudge, if any, the P.Ws. had, was against Abdul Ghaffar and as far as the appellant is concerned, no previous grudge or ill-will existed; that both the P.Ws. have stood acid test of a very very lengthy cross-examination; that the minor discrepancies, which were almost not describable, naturally crop up, as the evidence was recorded after about eight years of the occurrence; that the ocular account is fully supported by the medical evidence and the factum of recovery of weapon at the instance of the appellant. However, on the point of age, the learned counsel conceded, as it was borne out from the evidence as well as from the Birth and School Leaving Certificates, which have been placed before the Court, showing that the appellant was a juvenile at the time of occurrence. However, the learned counsel has argued that at the time of occurrence, Juvenile Justice System Ordinance 'was not in picture and the appellant could not be given benefit retrospectively.

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

10. According to prosecution case, P.W.1 Muhammad Saleem, father of the deceased, and Nawazish Ali deceased said Isha Prayer together in the mosque and while they were going out of the mosque at about 8-30 p.m., the accused reached there and Muhammad Idrees, who was armed with revolver, fired at Nawazish Ali, which hit on his chest. After receiving the fire, Nawazish fell on the ground and died on the spot. Muhammad Saleem appeared as P.W.1, while his cousin Muhammad Rafiq appeared as P.W.2. The statement of Muhammad Saleem was recorded on 7-10-2000, after more than eight years of the occurrence. He was subjected to lengthy cross-examination on that day and then the cross-examination was reserved, as the learned counsel for the accused was not feeling well. He was again cross-examined on 13-11-2000. The cross-examination is spread on more than seven pages. The cross-examination of Muhammad Rafiq/P.W.2 also consumed more than six pages and his statement was also recorded after more than eight years. Muhammad Saleem gave a very confidence-inspiring and truthful tale of the occurrence vis-a-vis the appellant and stood the acid test of extremely lengthy cross-examination as far as the role of the appellant is concerned. His statement cannot be brushed aside merely because he involved Abdul Sattar and Abdul Ghaffar, father and uncle of Muhammad Idrees, in the case. The fact remains that both of them did not cause any injury to the deceased and were found to be innocent during investigation and the learned trial Court acquitted them by extending benefit of doubt to them. Their acquittal would not benefit the A appellant in any manner, as it is settled principle of law now that it is the duty of the Court to sift the grain from the chaff. Perusal of the site-plan reveals that the occurrence took place inside the mosque and blood-stained earth was collected from there. It is normal practice that parents take alongwith them their children to the mosque for saying prayers together. It cannot be said that Muhammad Saleem was a chance witness. No father would substitute the real killer of his young son with an innocent person. P.W.2 Muhammad Rafique, who is cousin of Muhammad Saleem, did not tell a lie and stated that after hearing the report of fire, he entered the mosque. During cross-examination, he conceded that he did not see any accused firing with his own eyes but he spotted the appellant armed with pistol, who was present at that time and remained present with Saleem thereafter. The learned counsel for the appellant has pointed out certain minor discrepancies in the statements of the P.Ws. but the contradictions pointed out by the learned counsel are insignificant and do not contradict essential features of the prosecution case. These were natural variations which were bound to happen due to examination of witnesses after about eight years of the incident. The witnesses were also subjected to lengthy cross-examination. When the witnesses are subjected to such a lengthy cross-examination which consists of many irrelevant and misleading questions, then the contradictions loose their significance. The statements of the P.Ws. are fully supported by the medical evidence and recovery of pistol P.3 at the instance of the appellant. C.W.1 Ghulam Fareed/A.S.-I. and Nazir Ahmad Inspector/C.W.4 were produced to prove the recovery and no dent could be caused in the veracity of their statements so far as the recovery of pistol is concerned.

11. The place of occurrence and the time of occurrence has not been challenged. However, according to defence plea, at the fateful time, light c had gone off and, thus, the culprits could not be identified. The appellant has placed on record Exh.D.C. on that regard. However, the person, who issued Exh.D.C., was never produced before the trial Court. Furthermore, no question was asked either 'from P.W.1 or from P. W .2 that at the fateful time the light had gone off. The learned counsel for the appellant has referred to the statement of Nazir Ahmad Inspector available at page 46 of the Paper Book, wherein he stated that Abdul Hameed Khan, Staff Officer had investigated the case and entered in case diary that the light was off at the time of occurrence. This damaging concession given by the police officer cannot be given any weight., specially when the complainant lost his trust in the investigation and had to file a complaint due to partial investigation. Reference in this respect is made to Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others (PLD 1976 SC 452). As far as motive is concerned, we agree with the reasons advanced by the learned trial Court and hold that prosecution failed to prove motive against the appellant, as he was a child when a case of rape was got registered by the complainant party against Abdul Ghaffar about eleven years prior to this occurrence. Believing ocular account which is fully supported by the medical evidence and other D circumstances of the case, we hold that the prosecution has proved its case against the appellant beyond doubt.

12. Now coming to the question of sentence, it has been noticed by us that during cross-examination, P.W.1 conceded that deceased and appellant were age-mates. According to doctor, age of Nawazish Ali deceased was about 16 years. Through Criminal Miscellaneous No.1 of 2004, birth certificate and school leaving certificates of the appellant were placed on the record of the case. According to both the certificates, the appellant was born on 9-1-1976 and was, thus, 16-1/2 years old on the date of occurrence. The case of the appellant qualifies under the provisions of Juvenile Justice System Ordinance. As the appeal is continuation of trial, we cannot deprive the appellant of a valid and E lawful benefit. Hence, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C., we alter the sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C. is extended to the appellant. The amount of compensation imposed by the learned trial Court is maintained with modification that in default in payment thereof, the appellant would suffer six months' S.-I.

13. With the above modification relating to reduction of sentence, this appeal is partly allowed. The death sentence is not confirmed. The Murder Reference is answered in the negative. H.B.T./M-163/L????????????????????????????????????????????????????????????????????? Appeal partly allowed.