2006 PLP 1049 (MLD)

ALI NAWAZ CHOWHAN, J.

Mazhar Hussain appellant in Criminal Appeal No.838 of 2000 was convicted under section 302, P.P.C. by the learned Additional Sessions Judge, Gujrat vide judgment dated 1-6-2000 in case F.I.R. No.11 registered under sections 302/ 324/34, P.P.C. at Police Station, Tanda, District Gujrat and sentenced to death with direction to pay Rs.50,000 as compensation to the legal heirs of the deceased or in default thereof to undergo R.I. for two years. Muhammad Afzal real brother of the deceased has filed Criminal Revision No.539 of 2000 for enhancement of compensation. Both these matters are being disposed of through this single judgment. By the same judgment Arshad co-accused was acquitted of the charge.

2. Muhammad Rashid complainant while making his depositions in Court as P.W. narrated the prosecution story as under:-- "On 2-2-1996 at 10-00 a.m. myself, Arshad, Hakam Ali Aslam were sitting in my courtyard and having a talk. The outer door was opened when Mazhar accused while armed with .222 rifle, Muhammad Afzal accused armed with .222 rifle and Ashraf alias Arshad empty-handed came in. Arshad raised a Lalkara that Rasheed and Aslam should be done away. On which Mazhar fired with his .222 rifle which hit on the left side of Aslam who after receiving the injury fell down. Afzal fired with his .222 rifle which did not hit me luckily. We ran inside to save life. They raised lalkaras and ran away from the place of occurrence." The motive part of the story was narrated by him as under : -- "The motive behind the occurrence is that Mazhar accused is a vagabond and desperate person who demanded Rs.10,000 from Aslam as Jaga tax who refused to pay the same and thus present offence was committed." Muhammad Arshad P.W.2 supported the complainant.

3. Dr. Tahir Naveed P.W.9 conducted the post-mortem on the dead body of Aslam deceased and found the following injuries on his person:-- A fire-arm wound Y shaped 12 cm long split in the middle to two legs, which are apart total width 5 cm, the interior part have the edges inverted at the end while the two legs were reverted as shown in the diagram on the left side top of head. The wound was anteriorly of ante and posteriorly was exit". According to the doctor the injuries were ante-mortem and were caused by fire-arm and were sufficient to cause death due to damage of brain and hemorrhage. Exh.P.F. is the post-mortem report whereas Exh.P.F./1 and Exh.P.F./2 are the diagrams of injuries.

4. Muhammad Bashir P.W.3 is the witness of recovery memo. Exh.P.C. under which the Investigating Officer took into his possession last-worn clothes of the deceased. He is also witness of recovery of rifle Exh.P.C. on the pointation of Muhammad Afzal accused. Farman Ali constable P.W.4 transmitted the sealed parcel containing blood-stained earth to the office of Chemical Examiner, Lahore. Akhtar Naqaash Draftsman prepared site-plan Exh. P. E. Muhammad Akram constable escorted the dead body of the deceased to the mortuary for autopsy and after post-mortem he handed over last-worn clothes of the deceased to the Investigating Officer which he took into his possession vide memo. Exh.P.C. Muhammad Iqbal Moharrir drafted formal F.I.R. Exh. P. A./1 on the basis of complaint Exh.P.A. He also deposed about the safe custody of sealed parcels said to contain blood-stained earth in the Malkhana of the police station. Muhammad Shafi P.W.8 identified the dead body of Muhammad Aslam deceased at the time of post-mortem examination. Muhammad Younas S.-I. P.W.10 arrested Mazhar Hussain accused. Khalid Muhammad S.-I., P.W.11 recorded statement of complainant Exh.P.A. He visited the place of occurrence, prepared injury statement Exh.P.G., and inquest report Exh.P.H. He also took into his possession blood-stained earth vide memo. Exh.P.B. He recovered .222 rifle on the pointation of Muhammad Afzal accused vide memo. Exh.P.D. Muhammad Nawaz Inspector P.W.i2 was entrusted with the warrant for the arrest of Mazhar Iqbal but he returned unserved. Nazim Hussain constable P. W.13 prepared previous history of Mazhar Hussain vide memo. Exh.P.N.

5. The accused were examined under section 342, Cr.P.C. Mazhar Iqbal accused took the following plea: "All the P.Ws. are close related inter se as well as with the deceased and they are inimical towards me. I have long-standing enmity with the complainant party. The deceased was a man of bad character 'and a desperado. Somebody murdered him while he was all alone and subsequently the eye-witnesses of his case after learning about the murder they falsely introduced themselves as eye-witnesses of this case and they were 'never present at the time of occurrence."

6. The basic argument advanced by the learned counsel for the appellant Mazhar Hussain is that the story regarding demand of Jagga Tax which was set up as a motive in this case has been completely disbelieved by the learned trial Court. In this connection he refers paragraph 19 of the judgment which reads as follows:-- "As far as the first part of motive is concerned, the prosecution did not produce evidence in this respect, therefore, the prosecution failed to prove first part of the motive. As far as motive for Jagga Tax is concerned although the prosecution has produced P.W. and P.W.2 to prove this part of motive but demand of Jagga Tax from an enemy is against the human conduct and natural course and thus the prosecution was to prove this fact by cogent and convincing evidence but the prosecution evidence in this respect is not confidence-inspiring, therefore, the prosecution has failed to prove the motive part of their version but at the same time it shall not be out of place to mention here that crimes are committed even without motive and in fact motive is the inner thought of an accused, which is only known to him and even a devil cannot peep into the mind of an accused, for which he had actually committed the offence. Moreover, in the present case the previous enmity between the parties is even proved from the very cross-examination of learned defence counsel from the prosecution evidence."

7. Learned counsel further stated that even the second motive was also disbelieved. It was said that the accused party were neighbours of the complainant party living not far away and it is not the case that they came from any far distance to be the aggressors. Learned counsel further went on to say that the motive part of the story having been disbelieved and an incident having taken place between the neighbours it is absolutely clear that the cause of the episode was shrouded in mystery. He further stated that there was no empty recovered from the spot and after all this was a case of single shot. While referring to the recoveries he refers to paragraph 21 of the judgment which reads as follows:-- "P. W.3 and the Investigating Officer have appeared in the witness-box to prove the recovery. Although both the witnesses have tried to prove the recovery but it is worth-mentioning that the empties have not been recovered from the place of occurrence and the alleged weapon of offence and the empties have not been sent to the office of Forensic Science Lab., Lahore for matching the same, therefore, even if the recovery is believed to have been effected, even then it is of no help to the prosecution."

8. Learned counsel further stated that the deceased was not a "Masoom-ud-Dam" and was involved in several criminal cases and this lends further support to his theory that certain facts were suppressed which may have brought about the situation as is alleged.

9. The upshot of the arguments of the learned counsel for the appellant is that his contentions aforementioned make this a case fit for mitigation. In this connection he places reliance on the following cases law:- (1) Gul Khan and another v. The State (2000 SCMR 400). (2) Muhammad Nawaz Khan v. Mubarik Ali and others (2000 SCMR 1582). (3) Feroz Khan v. The State (2002 SCMR 99). (4) Jahanzeb and another v. The State and others (2003 SCMR 98). (5) Mirza Zaheer Ahmad v. The State (2003 SCMR 1164). (6) Nazeer Ahmad v. The State (1999 SCMR 396). (7) Abid Khan v. The State (2003 PCr.LJ 442). (8) Mukhtar Hussain and another v. The State (1985 SCMR 479). (9) Muhammad Arshad and 2 others v. The State (PLD 1996 SC 122). (10) Saiful Malook and others v. The State and others (1992 SCMR 1597). (11) Khawand Bakhsh and others v. The State and others (PLD 2000 SC 1). (12) Qamar Ehsan v. The State (2004 PCr.LJ 47).

10. While answering to the allegations that the deceased was not a "Masoom-ud-Dam", the learned counsel appearing on behalf of the complainant side stated that in fact both sides were involved in several criminal cases and this is borne from the record and that this equally applies to the complainant side but there was no denial to the fact that there is enmity inter se the parties, perhaps this is the reasons that the learned trial Court has disbelieved the motive.

11. After hearing the learned counsel from both the sides and after going through the record this Court is of the view that whereas the prosecution has been able to establish case beyond reasonable doubt against the appellant, therefore, this Court upholds the order of conviction but because of the mitigating circumstances available as canvassed reduces the sentence from death to life imprisonment. Rest of order of the trial Court remains intact and Criminal Appeal No.838 of 2000 is disposed of accordingly. The revision petition bearing Criminal Revision No.539 of 2000 asking for enhancement of compensation having not been pressed is also dismissed. H.B.T./M-152/L Order accordingly.