2006 PLP 2189 (YLR)

SYED SAKHI HUSSAIN BOKHARI, J.

Abdul Haq and Ghulam Nabi have filed Criminal Appeal No.1870 of 2000, whereas, Khizar Hayat has filed Criminal Appeal No. 27/J-2002 against the judgment, dated 29-11-2000, passed by learned Additional Sessions Judge, Mandi Baha-ud-din, whereby, Abdul Haq was convicted under-section 302(a), P.P.C. and sentenced to death as `Qisas' whereas, Ghulam Nabi and Khizar Hayat were convicted under seciton 302(b)134, P.P.C. and sentenced to suffer imprisonment for life. Abdul Haq was directed to pay compensation of Rs.50,000 to the legal heirs of the deceased, whereas, Ghulam Nabi and Khizar Hayat were directed to pay compensation of Rs.25,000 each. They were also convicted under sections 452/34, P.P.C. and sentenced to suffer five years' R.I. each and to pay Rs.10,000 each as fine and in default whereof, to suffer further three months' S.I. each.

2. Murder Reference No.745 of 2000 for confirmation or otherwise of death sentence of convict-appellant shall also be answered through this single judgment.

3. The prosecution story as appearing from the testimony of P.W. Ghulam Rasool (complainant) is that he had three sons, namely, Sardar, Zulfiqar and Mukhtar and Mukhtar was an Army Employee. About two years back, Mukhtar had come on two . months leave. He (complainant) along with Jan Muhammad, P.W. Umar Hayat P.W. and Mukhtar were present in their house. It was about midnight and at about 11-00 p.m. Mukhtar and Jan Muhammad were sleeping in a room whereas, complainant and Umar Hayat P.W., were also lying asleep in the adjoining room. At about midnight, complainant heard noise of knocking at the door. Jan Muhammad P.W. opened the door and Omar Hayat P.W. came to the `Bethak' where Mukhtar and Jan Muhammad were lying asleep. The electric bulb was on. Jan Muhammad opened the door; Abdul Haq, accused, armed with double barrel gun, Zafar accused armed with .7 mm, Ghulam Nabi armed with Hokey and Khizar Hayat empty handed, entered their house and within their sight, Abdul Haq, accused fired at Mukhtar with his double barrel gun which hit him on his neck while he was lying asleep, and he died at the spot. They raised hue and cry and accused fled away. Khizar Hayat and Allah Bakhsh also witnessed the accused while they were running. He along with Fateh Muhammad, P.W., went to Police Station, Malikwal, got registered F.I.R., Exh. PA, which was read over to him and he thumb marked the same. The cause of the occurrence is that Abdul Haq accused had illicit relations with Mst. Sajida, wife of Khizar Hayat (complainant's nephew). She was `Bhabi' (sister-in-law) of Mukhtar and about 3/4 days prior to the occurrence, Mukhtar had forbidden Abdul Haq, accused from coming to his house and the two had quarrelled with each other. P.W,8 Mumtaz Ali Alvi, is the Investigating Officer, in this case, he stated that on 31-1-1995, he was posted as S.H.O. P.S. Malikwal and on the same day, Ghulam Rasool, complainant, appeared before him and made statement, Exh. P.A., which was read over to him and he thumb-marked the same, thereafter, he proceeded to the place of occurrence, prepared the inquest report, Exh.PE, injury statement, Exh. PE/ 1 and sent the dead-body to the mortuary for post-mortem examination. He prepared rough sketch of the place of occurrence, Exh.PF, took into possession blood-stained earth vide memo. Exh.PG. After post-mortem examination, Ijaz Ahmad, 222/C, produced before him last worn clothes of the deceased which were taken into possession vide memo. Exh.PD. He recorded statements, of P. Ws. , got prepared site-plan, Exh.PG/1 and Exh.PG/2 from Muhammad Siddiqui, Draftsman (since dead). He identified his hand writing and signatures on the site-plan. The investigation remained with him uptill 9-2-1995. P. W.10, Razzaq Ahmad, Inspector is also I.O. in this case, he stated that he was posted as S.H.O., at Police Station, Malikwal on 12-12-1996. On 19-12-1996, pre-arrest bail of Abdul Haq, accused was rejected and he arrested him. On 6-1-1997, he submitted the Challan in Court.

4. The accused appeared before the trial Court and charge under sections 302, 452 and 34, P.P.C. was framed against the appellants, to which they pleaded not guilty and claimed trial, whereupon, prosecution evidence was recorded. The prosecution examined ten witnesses in all to prove its case. Thereafter, accused were examined under section 342, Cr.P.C., wherein they denied the allegations levelled against them by the prosecution and pleaded their innocence. The accused examined D.W.1 Nazir Ahmed, D.W.2 Shafqat Bari, D.W.3 Muhammad Boota and D.W.4 Noor Muhammad. After hearing the parties, learned trial Court convicted the appellants and sentenced them, as mentioned above. Hence these appeals and murder reference.

5. We have heard learned counsel for the parties and have gone through the record.

6. As mentioned above, the prosecution case is that on the night between 30/31-1-1995, Abdul Haq, appellant, armed with gun .12 bore, Zafar armed with .7 mm rifle, Ghulam Nabi armed with stick (hockey) and Khizar Hayat, empty handed, entered,the house of complainant and Abdul Haq, accused, fired at Mukhtar Ahmad (complainant's son) which hit him on his neck while he was lying asleep, as a result whereof, he died and accused fled away from the spot. The prosecution examined two eye-witnesses, P.W. Ghulam Rasool (complainant) and P.W.2, Allah Bakhsh. They are consistent in their statements that Abdul Haq fired at Mukhtar Ahmad with his gun, as a result whereof, he died. There is no material contradiction of discrepancy in their statements. Even otherwise, their statements were convincing and confidence inspiring and there is nothing on record to disbelieve the same.

7. Dr. Masood Ansar, P.W.3, .conducted post-mortem examination on the dead-body of Mukhtar Ahmad. He found the following external injuries: "Fire-arm entry wounds 7 in numbers in an area of about 9 c.m. x 7 c.m. over the front of left ear, back of left ear and below left ear with inverted edges with blackening of the edges, the smallest was 3/4 c.m. x 3/4 c.m. x going deep, the biggest one was about 3 c.m. x 2 c.m. x going deep over the left side of the neck with four exist wounds over the right side of neck and over the right mandible area, each exit wound was 1-1/4 c.m. x 1-1/4 cm with everted edges." As such, medical evidence conforms to the ocular account, furnished by the eye-witnesses.

8. The most important aspect of the case is that occurrence took place in the house of complainant. As such, he was natural witness. There is nothing on record to show that there was any previous enmity between the parties. So, we find that prosecution has proved its case against Abdul Haq, appellant beyond any shadow of doubt. The case of the appellant is that he was not present at the scene of occurrence at the relevant time but there is nothing on record in support of his version. So, defence version is baseless and the same is accordingly rejected. As such, we find that learned trial Court has rightly convicted Abdul Haq, appellant.

9. It is clear from the material available on the record that even prior to the occurrence, appellant Khizar Hayat and the deceased (Mukhtar Ahmad) had been playing Cards. As stated earlier, according to the prosecution case, the cause of occurrence is that Abdul Haq, appellant had illicit relations with the wife of Khizar Hayat (sister-in-law of the deceased) but no witness has been examined to prove the same. As such, in the circumstances of the case, we find that it is not a fit case for imposition of death sentence. Reliance can be placed on the case of Muhammad Arshad and 2 others v. State (PLD 1996 SC 122). Para.No.10 of judgment of Hon'ble Supreme Court reads as under: "We first take up the question of sentence of Arshad appellant under section 302, P.P.C. He has been awarded death sentence on the charge of murder which undoubtedly is a normal penalty for the offence of murder but in appropriate cases where same extenuating circumstances are available, the Courts have the discretion to award lesser punishment of imprisonment for life provided under section 302, P.P.C. Now, in the present case, there are circumstances forthcoming from the record which could be taken as extenuating/ mitigating circumstances for the purpose of awarding lesser sentence but the learned Courts below have not duly attended to them when considering the question of sentence to be imposed on the appellant. It is an admitted position that there existed no background of any previous enmity or deep-rooted hostility between the appellants and the deceased. There was only a minor dispute between them regarding the demarcation of their adjacent plots which resulted in the unfortunate occurrence. It is also in evidence that the act of firing by Arshad appellant at the deceased was preceded by a dialogue between the accused and the deceased followed by a scuffle/ grappling between Afzal accused and the deceased and the pelting of stones by the daughters of the deceased at Afzal accused who as a result sustained some injuries. It is also significant that Arshad appellant fired only one shot and did not repeat it. All these factors in our view cumulatively make out a case for mitigation of sentence. We, therefore, hold that the extreme penalty of death awarded to Arshad appellant was not called for and the lesser sentence of life imprisonment would meet the ends of justice." So, Abdul Haq, appellant, too deserves leniency. Learned trial Court has convicted the appellant under section 302(a), P.P.C. but there is no evidence as required under section 304, P.P.C. therefore, he is convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life under section 302(b), P.P.C. He shall also pay Rs.50,000 as compensation to the legal heirs of the deceased. However, his sentence under section 452, P.P.C. shall remain intact and both sentences shall run concurrently. He shall also get benefit of section 382-B,. Cr.P.C.

10. As regards case against Ghulam Nabi and Khizar Hayat, appellants, no injury or overt act has been attributed to them. As per F.I.R., Khizar Hayat was empty handed. Nothing was recovered from Ghulam Nabi during investigation. It seems that they have been falsely involved in this case. So, we find that prosecution has failed to prove its case against them. As such, to the extent of Ghulam Nabi and Khizar Hayat, appeals are accepted; impugned judgment to their extent is set aside and they are acquitted of the charge preferred against them by the prosecution. They are in jail and shall be released forthwith, if not required in any other case. Murder Reference is answered in Negative. H.B.T./A-79/L???????????????????????????????????????????????????????????????????????????????????? Order accordingly.