2006 PLP 1128 (YLR)

ASIF SAEED KHAN KHOSA, J.

Zulfiqar Ali appellant was convicted for an offence under section 302(b), P.P.C. vide judgment dated 15-11-2000 handed down by the learned Additional Session Judge, Faisalabad and was sentenced to death as Ta'zir and to pay a sum of Rs.50,000 to the heirs of Manzoor Ahmad deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months. The appellant has challenged his conviction and sentence before this Court through Criminal Appeal No.1801 of 2000 whereas Noor Ahmad complainant has preferred Criminal Revision No.85 of 2002 before this Court seeking enhancement of the amount of compensation payable by the appellant to the heirs of the deceased. We have heard both these matters together along with Murder Reference No.9 of 2001 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant and we propose to decide all these matters together through the present consolidated judgment.

2. According to the prosecution Zulfiqar Ali appellant had fired at and killed Manzoor Ahmad deceased in a field of wheat crop in Chak No.611/JB situated within the area of Police Station Tandlianwala, District Faisalabad at about 7-00 p.m. on 4-4-1998 when the appellant was surprised and challenged by Manzoor Ahmad deceased and some other prosecution witnesses at a time when the appellant and Manzoor Ahmad deceased's wife namely Mst. Anwar Bibi were found to be sitting together in that field of wheat crop in pursuance of their illicit liaison. Noor Ahmad complainant had made a statement before a police officer in respect of the said incident at 10-00 p.m. during the ensuing night and on the basis of that statement of the complainant formal F.I.R. No.369 was subsequently registered at Police Station Tandlianwala, District Faisalabad at 11-30 p.m. on 4-4-1998 in respect of an offence under section 302, P.P.C.

3. After completion of the investigation of this criminal case a Challan was submitted before the trial Court which framed a charge against the appellant to which he pleaded not guilty and claimed a trial. During the trial the prosecution produced eight witnesses in support of its case against the appellant out of which Noor Ahmad complainant (P.W.5) and Muhammad Amin (P.W.6) furnished the ocular account and Dr. Captain Muhammad Anwar (P.W.3) provided the medical evidence. In his statement recorded under section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He, however, opted not to make a statement on oath under section 340(2), Cr.P.C. and did not produce any witness in his defence. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, he was convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal, revision petition and the connected Murder Reference before this Court.

4. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance.

5. At the outset the learned counsel for the appellant has submitted that he does not challenge the appellant's conviction for an offence under section 302(b), P.P.C. recorded by the learned trial Court but he only prays for reduction of the appellant's sentence. In this connection he has referred to various aspects of this case which, according to him, warrant reduction of the appellant's sentence. As against that the learned counsel for the State as well as the learned counsel for the complainant have maintained that the prosecution had succeeded in establishing the appellant's guilt to the hilt and that there are no mitigating circumstances available in this case so as to withhold the sentence of death from the appellant. The learned counsel for the complainant has gone on to submit that in the circumstances of this case the amount of compensation payable by the appellant to the heirs of the deceased ought to be suitably enhanced by this Court.

6. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have noticed that the F.I.R. in this case had been lodged with reasonable promptitude and the appellant had been specifically nominated therein as the sole perpetrator of the murder in issue. The case in hand is one of a single accused and there is nothing available on the record of this case which could prompt the eye-witnesses to substitute the present appellant for the real culprit. Noor Muhammad complainant (P.W.5) happens to be a real brother of Manzoor Ahmad deceased and the place of occurrence was situated near the Dhari wherein the complainant and Manzoor Ahmad deceased used to reside together. Muhammad Amin (P.W.6) is also related to the deceased as well as the complainant and, thus, their joining together in the search of the deceased's missing wife was quite natural and not extraordinary. Both these eye-witnesses had made absolutely consistent statements before the learned trial Court and had unhesitatingly pointed their accusing fingers towards the appellant as the murderer of Manzoor Ahmad deceased. The said eye-witnesses had received full support from the medical evidence inasmuch as the date and time of occurrence, the weapon used, and the locale of the injury stated by these witnesses had all been confirmed by the medical evidence. In these circumstances the learned trial Court had felt convinced that the prosecution had succeeded in establishing the appellant's guilt beyond reasonable doubt and we have not been able to take any legitimate exception to the said conclusion of the learned trial Court. In this view of the matter we have found the learned counsel for the appellant to be quite justified in not challenging the appellant's conviction for an offence under section 302(b), P.P.C. recorded by the learned trial Court.

7. We have given our anxious consideration to the question of sentence to be passed against the appellant and in this context we have found a number of mitigating circumstances floating on the surface of the record. In this regard we have found that the motive set up by the prosecution had remained far from being established. According to the prosecution the appellant was carrying on illicit relations with the wife of Manzoor Ahmad deceased namely Mst. Anwar Bibi but the allegation of the prosecution in that respect had never travelled beyond a verbal assertion of the complainant alone. No independent evidence whatsoever had been produced by the prosecution in that connection either during the investigation or before the learned trial Court. Liaquat Ali, S.-l. (P.W.8), the Investigating Officer, had acknowledged before the learned trial Court in so many words that Mst. Anwar Bibi was never produced before him by the complainant party nor he had ever associated the said lady with the investigation in any manner. We have further observed that according to the prosecution's own case the appellant was not found in flagrante delicto with the said lady and according to the prosecution the appellant and the said lady had only been seen by the eye-witnesses sitting together. It was admittedly not a case of the eye-witnesses sitting together. It was admittedly not a case of the prosecution on the part of the appellant vis-a-vis the murder of Manzoor Ahmad deceased and according to the case of the prosecution itself it was the complainant party which had surprised the appellant at the spot and had then challenged him by raising a Lalkara that the appellant would be taught a lesson. It was in that backdrop that the appellant had fired at Manzoor Ahmad deceased after he had been threatened by the complainant party itself. The occurrence in this case had taken place inside a field and at a time after darkness had descended and, thus, the appellant could have apprehended that the complainant party might be armed and was ready to launch an assault upon him. The prosecution had alleged that the appellant had fired at the deceased twice and out of those fires that first had gone amiss and the second had proved to be effective. Admittedly no crime-empty had been recovered from the place of occurrence and, thus, there is nothing available on the record to conclusively establish that the appellant had indeed fired at the deceased twice and not once. In these circumstances, despite the alleged immorality of the appellant, we have found that the case in hand is not one of a cold-blooded, premeditated and calculated murder and the said murder had come about in circumstances which had developed all of a sudden and also in circumstances in which the appellant himself apprehended harm to his own body. For all these reasons we have decided to exercise our discretion in favour of reduction of the appellant's sentence and to err, if at all, on the side of precaution.

8. For what has been discussed above Criminal Appeal No.1801 of 2000 is dismissed to the extent of the appellant's conviction for an offence under section 302(b), P.P.C. recorded by the learned trial Court but the same is partly allowed to the extent of the appellant's sentence which is reduced from death to imprisonment for life. The appellant shall be extended the benefit under section 382-B, Cr.P.C. The amount of compensation ordered by the learned trial Court to be paid by the appellant to the heirs of' Manzoor Ahmad deceased has been found by us to be adequate and proper in the circumstances of this case and we have not felt persuaded to enhance to same as a significant part of the same is likely to be paid to the deceased's widow namely Mst. Anwar Bibi whose alleged immorality was the very reason which led to the deceased's death. Criminal Revision No.85 of 2002 preferred before this Court by Noor Ahmad complainant in this regard is, therefore, dismissed.

9. Murder Reference No.9 of 2001 is answered in the negative and the sentence of death passed by the learned trial Court against Zulfiqar Ali appellant is not confirmed. H.B.T./Z-127/L??????????????????????????????????????????????????????????????????????????????????? Order accordingly.