2017 P Cr (PLP)

SHEHRAM SARWAR CH., J.

Hassan Ali (appellant in Crl. Appeal No.907 of 2013) and Mazhar Hussain (appellant in Crl. Appeal No.906 of 2013) along with their co-accused namely Zafar Abbas, Shamsul Hassan, Ahmad Ali Shah and Munir Hussain were tried by the learned Sessions Judge, Chiniot in a private complaint instituted under sections 302, 109, 148, 149, P.P.C. by complainant being dissatisfied with the investigation conducted by the police in case FIR No.770, dated 07.09.2008, offence under section 302 read with sections 148 and 149, P.P.C., registered at Police Station Sadar, Chiniot for the murder of Ahmad Ali Shah. Vide judgment dated 14.06.2013, passed by the learned Sessions Judge, Chiniot, the appellant Hassan Ali was convicted under section 302(b), P.P.C. for committing Qatl-i-amd of Ahmad Ali Shah and sentenced to death with a further direction to pay Rs.2,00,000/- (rupees two lakh only) as compensation to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. and in default whereof to further undergo six months' simple imprisonment. Mazhar Hussain (appellant) was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with a further direction to pay Rs.2,00,000/- (rupees two lakh only) as compensation to the legal heirs of deceased as provided under section 544-A, Cr.P.C. and in default whereof to further undergo six months' simple imprisonment. Benefit of section 382-B, Cr.P.C. was also extended to Mazhar Hussain (appellant). However, learned trial Court, through the same judgment, acquitted Zafar Abbas, Shamasul Hassan, Ahmad Ali Shah and Munir Hussain co-accused of the appellants while extending them benefit of doubt and no appeal against their acquittal was filed either by the complainant or the State. Assailing the above convictions and sentences, Hassan Ali and Mazhar Hussain (appellants) have filed the above said two separate criminal appeals whereas the learned trial court has sent Murder Reference No.392 of 2014 for confirmation or otherwise of Hassan Ali appellant's sentence of death, as required under section 374, Code of Criminal Procedure. Since all these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Ex.PA/1) registered on the statement (Ex.PA) of Muhammad Hussain Shah, complainant (PW.3) is that on 07.09.2008, complainant along with his brother Ahmad Shah were coming to Chiniot on motorcycle. Ahmad Ali (deceased) was driving his motorcycle while he along with Tahir Abbas (PW since given up) was riding on another motorcycle. Ahmad Ali Shah was going ahead. At about 02.15 p.m., when they reached in the area of Kakkay Tibba Dolat Pur Road all of a sudden, Hassan Ali, Mazhar Hussain and Munir Hussain along with two unknown in muffled faces armed with .30-bore pistols came there while raising lalkaras that they would teach a lesson to Ahmad Ali on dispute of land. All the accused persons made straight firing with their .30-bore pistols, which hit on different parts of body of Ahmad Ali Shah, who along with motorcycle fell on the ground. All the accused persons fled away from the spot. The occurrence was witnessed by complainant, Tahir Abbas and Israr Hussain Shah. Ahmad Ali Shah succumbed to the injuries at the spot. Motive as alleged in the FIR was to the effect that there was a dispute of property between Ahmad Ali (deceased) and Hassan Ali (appellant). Due to that grudge, the appellants along with their co-accused had committed murder of complainant's brother.

3. Being dissatisfied with the investigation conducted by the police Muhammad Hussain Shah complainant (PW.3) filed a private complaint in the court of learned Judicial Magistrate, Chiniot, titled as "Syed Muhammad Hussain Shah v. Zafar Abbas etc.", with certain insertion with regard to attribute specific role to the appellants during the incident which was to the effect that Mazhar Hussain (appellant) made a fire which landed on right bicep (dola) of Ahmad Ali Shah (deceased) whereas, Hassan Ali (appellant) made a fire which landed on the right flank of Ahmad Ali Shah (deceased). The appellants along with their co-accused were summoned by the learned trial Court to face the trial, copies of documents, as required under section 265-C, Code of Criminal Procedure, were provided to them and formal charge under section 302, P.P.C. read with sections 148 and 149, P.P.C. was framed against them on 12.04.2010, to which they pleaded not guilty and claimed trial. Statements of Mazhar Hussain and Hassan Ali (appellants) were recorded under section 342, Code of Criminal Procedure on 10.03.2013 and 17.04.2013 respectively wherein they refuted all the prosecution allegations levelled against them and professed their innocence. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Hassan Ali (appellant) replied as under:- "The case against me is false. All the PWs are inter se related and had enmity against me to depose falsely. The remaining PWs did not support the case of prosecution. After the death of late Muhammad Ali, my father Jaffar Shah instituted civil suits in the civil court at Chiniot and due to this grudge and enmity the complainant has involved me, my brother and my uncle in this case falsely. Cases are still pending and the complainant party forced me and my co-accused to withdraw the above said cases and to deprive my father and uncle from their legal share from the estate of late Muhammad Ali Shah, has falsely implicated us. Ahmad All Shah deceased had enmity with several other persons and they had also extended threats to him." To a question as to why the case against him and why the prosecution witnesses had deposed against him, Mazhar Hussain (appellant) replied as under:- "All the private PWs are related inter se while the remaining PWs did not support the case of prosecution. The complainant party has involved me and my brother in this case on the asking of Safdar Shah and Saleh Shah. In fact, my father had a dispute with Mst. Shamim Zahra sister of Saleh Shah PW for which litigation remained pending in civil court between my father and Shamim Zahra. We had also enmity with one Safdar Shah a close relative of complainant. The complainant involved me and my brother Zafar Abbas Shah in this case on the asking of Saleh Shah PW and Safdar Shah his close relative." The appellants did not appear as their own witnesses in disproof of the prosecution allegations as provided under section 340(2), Code of Criminal Procedure, however they produced copies of some documents in their defence evidence. After conclusion of the trial, the learned trial court convicted and sentenced the appellants as detailed above. Hence these appeals and murder reference.

4. Learned counsel for the appellants, in support of these appeals, contends that the appellants have falsely been implicated in this case; that presence of all the witnesses of ocular account namely Muhammad Hussain Shah complainant (PW.3) and Israr Hussain Shah (PW.4) has not been established at the spot at the relevant time; that all these witnesses are closely related to the deceased and as such they are interested witnesses; that medical evidence is only a supporting piece of evidence and relevant only if the primary evidence i.e. ocular account inspires .confidence which is not the situation in this case; that the prosecution has failed to prove motive against Hassan Ali (appellant); that alleged recovery of .30 bore at the instance of Hassan Ali (appellant) is inconsequential; that viewing from all angles, the prosecution case is doubtful in nature and the appellants are entitled to the benefit of doubt not as a matter of grace but as of right.

5. On the other hand, learned Deputy Prosecutor General, assisted by learned counsel for the complainant, vehemently opposes these appeals on the grounds that the matter was reported to the police with due promptitude; that presence of both the witnesses of ocular account i.e. Muhammad Hussain Shah complainant (PW.3) and Israr Hussain Shah (PW.4) at the spot at the relevant time is quite natural and probable; that motive against Hassan Ali (appellant) has been proved in accordance with law; that ocular account is fully supported by medical evidence and corroborated by the recovery of pistol .30 bore at the instance of the Hassan Ali (appellant); that the prosecution has proved its case to the hilt against the appellants, therefore, the appeals filed by the appellants merit dismissal.

6. We have heard arguments of learned counsel for the appellants as well as learned Deputy Prosecutor General for the State, assisted by learned counsel for the complainant, to their entire satisfaction, given our serious consideration to their respective submissions and also perused the record.

7. This unfortunate incident, wherein Hassan Ali brother of the complainant was done to death, as per prosecution's own case, took place on 07.09.2008 at 2:15 p.m. in the area of Kakkay Tiba Dhakli village Rajooa Sadaat within the jurisdiction of Police Station Saddar Chiniot. Matter was reported to the Police by Muhammad Hussain Shah complainant (PW.3) on the same day at 3.10 p.m. i.e. just fifty five minutes after the incident. Distance between the place of occurrence and the Police Station is five kilometers. Even post mortem examination of the dead-body of Ahmed Ali Shah (deceased) was conducted within five hours of the occurrence. Therefore, we hold that matter was reported to the police with due promptitude which rules out the chances of fabrication and consultation on the part of complainant's side.

8. Ocular account was furnished by Muhammad Hussain Shah complainant (PW.3) and Israr Hussain (PW.4). Both these witnesses have given a plausible reason for their presence at the spot at the relevant time which was to the effect that Muhammad Hussain Shah complainant (PW.3) along with Ahmad Ali (deceased) and one Tahir Abbas PW was coming from Chiniot while riding on two motorcycles whereas Israr Hussain Shah (PW.4) was going towards Chiniot at the same time and as such presence of both the witnesses of ocular account at the spot at the relevant time is quite natural and probable. There is no material discrepancy in their statements rather they corroborated each other on all material aspects of the case and despite lengthy cross examination nothing beneficial to the defence could be extracted. Their evidence is quite natural, trustworthy and confidence inspiring. Moreover, it was a daylight occurrence, therefore, there are no chances of misidentification of the appellants. Place of occurrence has not been disputed by the defence. The testimonies of both these eye-witnesses cannot be discarded merely because of their relationship with the deceased. In this respect reliance is placed on "Haji v. The State" (2010 SCMR 650). Therefore, we hold that all the witnesses of ocular account namely Muhammad Hussain Shah complainant (PW.3) and Israr Hussain Shah (PW.4) were present at the spot and had witnessed the occurrence.

9. In the private complaint as well as before the learned trial Court it was the case of prosecution that Mazhar Husain made a fire which landed on the right bicep (dola) of Ahmad Ali Shah (deceased). Hassan Ali (appellant) made a fire which landed on the right flank of Ahmad Ali Shah (deceased). Dr Inaam Jilani (CW.5) who conducted autopsy of Ahmad Ali Shah (deceased) and prepared postmortem report (Exh.CW.5/A) noted two entry wounds on the person of Ahmad Ali (deceased). Therefore, we hold, that ocular account to the extent of appellants is fully supported by medical evidence.

10. Motive as alleged in the FIR was to the effect that there was a dispute of property between Ahmad Ali (deceased) and Hassan Ali. (appellant). Due to that grudge, the appellants along with their co-accused had committed the murder of Ahmad Ali but in the private complaint (Exh.PB) as well before the learned trial Court, the prosecution's side had changed the motive part of occurrence. Muhammad Hussain complainant (PW.3), qua motive part of occurrence, in his examination in chief stated as under:- "The motive of occurrence is that Manzoor Zahra my sister and sister of Ahmed Ali Shah deceased married with Muhammad Ali Shah brother of Ahmed Ali Shah accused. Said Muhammad Ali Shah was murdered by his brothers. Manzoor Zahra my sister was having one daughter from Muhammad Ali Shah and whole land of Muhammad Ali Shah was in possession of Ahmed Ali Shah. Manzoor Zahra had filed cases against Ahmed Ali Shah etc accused and Ahmed Ali Shah deceased was pursuing those cases and those cases were decided in favour of Manzoor Zahra. Due to that grudge, the accused persons have committed his occurrence. Admittedly, no independent witness qua motive has been produced before the learned trial Court. Moreover, Hassan Ali (appellant) was not party in the suits filed by Manzoor Zahra against the accused's side. Even otherwise motive is double edged weapon because if it could be a reason for the commission of a crime then at the same time it (motive) could be a reason for false involvement of an accused. Therefore, we hold that prosecution has failed to prove motive against Hassan Ali (appellant) and the learned trial Court has rightly disbelieved the same to the extent of Mazhar Hussain (appellant) in its impugned judgment. The prosecution's failure to prove motive would constitute a mitigating circumstance for reducing the sentence of death to the imprisonment for life. Reliance is placed in the case of "Naveed alias Needu and others v. The State and others" (2014 SCMR 1464), relevant portion whereof is reproduced below:- "Upon our own assessment of the evidence available on the record we have felt no hesitation in concluding that the specific motive set up by the prosecution had indeed remained far from being established on the record. The law recently declared by this Court in the case of Ahmed Nawaz and another v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165) and Muhammad Mumtaz and another v. The State and another (2012 SCMR 267) reiterates the settled and longstanding principle that failure of the prosecution to prove the motive set up by it may have a bearing upon the question of sentence and in an appropriate case such failure may result in reduction of a sentence of death to that of imprisonment for life for safe administration of justice". The same view was further fortified in the case titled as "Ahmad v. The State" (2015 SCMR 993). So far as recovery of .30 bore pistol at the instance of Hassan Ali (appellant) is concerned, the same is immaterial because no crime empty was recovered from the spot and moreover report of Forensic Science Laboratory is not available on the record.

11. From the above circumstances, we are of the considered view that even if the evidence of motive and recovery of .30 bore pistol at the instance of Hassan Ali (appellant) is excluded from consideration, there is sufficient incriminating evidence on the record against them in the form of straightforward and confidence inspiring ocular account furnished by Muhammad Hussain Shah complainant (PW.3) and Israr Hussain Shah (PW.4) fully supported by the medical evidence i.e. statement of Dr. Inaam Jilani and postmortem report (Exh.CW.5/A) to maintain convictions of Hassan Ali and Mazhar Hussain (appellants) under section 302(b), P.P.C. which are accordingly maintained. However, it is not a case of capital punishment to the extent of Hassan Ali (appellant) because of the reason: (i) motive set up by the prosecution has not been believed by us (ii) recovery of pistol .30 bore at the instance of Hassan Ali (appellant) is inconsequential. 13(sic.) The above said facts lead us to the conclusion that there is an extenuating circumstance, on the basis of which Hassan Ali (appellant) could not be made liable to the maximum punishment provided under section 302(b), P.P.C., rather the ends of justice would be met, if his death sentence is converted into imprisonment for life. In this regard, we respectfully refer the case titled as "Mir Muhammad alias Miro v. The State" (2009 SCMR 1188) wherein the Hon'ble Supreme Court of Pakistan has held as under:- "

9. It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence." In another case titled as "Muhammad Riaz and another v. The State and another" (2007 SCMR 1413) decided by the Hon'ble Supreme Court of Pakistan, it was held as follows:- "No doubt normal penalty for an act of commission of Qatl-i-Amd provided under the law is death but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence because no hard and fast rule can be applied in each and every case." Therefore, while maintaining the conviction under section 302(b), P.P.C., we alter the sentence of Hassan Ali (appellant) from death to imprisonment for life. The amount of compensation and the punishment in default whereof as ordered by the learned trial Court is maintained. The conviction and sentence under section 302(b), P.P.C. awarded to Mazhar Hussain (appellant) by the learned trial Court are maintained. Benefit of section 382-B, Code of Criminal Procedure is extended to the appellants. Both the appeals separately filed by the appellants stand dismissed with the above modification in the quantum of sentence to the extent of Hassan Ali (appellant).

14. Murder Reference No.392 of 2014 is answered in the NEGATIVE and the sentence of death awarded to Hassan Ali (convict) is NOT CONFIRMED. JK/H-26/L Order accordingly.