2008 P Cr (PLP)

MUHAMMAD FARRUKH MAHMUD, J.

The appellant Ghulam Nabi and Riaz Hussain were booked in case F.I.R. No.163 registered at P.S. Tulamba on 22-7-2000 for offences under section 302/34 PPC. After completion of investigation Riaz Hussain/co-accused died and was, thus, not tried. So the appellant alone was tried by Ch. Abdul Sattar, learned Additional Sessions Judge, Mian Channu, who, vide judgment, dated 20-3-2002, convicted the appellant Ghulam Nabi for offence under section 302(b), P.P.C. and sentenced him to death plus payment of Rs.50,000 as compensation to the legal heirs of the deceased, in default whereof to undergo S.I. for six months.

2. The appellant/convict has questioned the legality of his above noted conviction and sentence through the instant appeal, while the learned trial Court has made a reference bearing Murder Reference No.262 of 2002 seeking confirmation or otherwise of death sentence awarded to the appellant. Both these matters are being decided through this judgment.

3. The brief facts of the case, per F.I.R. Exh.P.F. recorded by Anwar Ullah Khan, S.-I./P.W.10, at the instance of Muhammad Sarfraz, complainant/P.W.S, are that on 22-7-2000 at about 4-00 p.m. the complainant along with his son Zahid Saleem was going to Pull Chokian on metalled road. Zahid Saleem was ahead with the few steps. Ghulam Nabi appellant armed with .30 bore pistol and Muhammad Riaz (since dead) empty handed came across them. Ghulam Nabi threatened Zahid Saleem to teach a lesson for not leaving the possession of the land of Riaz Hussain. In the meanwhile Riaz Hussain caught hold of Zahid Saleem, while Ghulam Nabi appellant caused a fire from his pistol which hit Zahid Saleem on his forehead. The alarm raised attracted Muhammad Riaz, Zahoor Hussain and Mazhar Abbas/P. W.6, present nearby, at the spot and witnessed the occurrence. Zahid Saleem on receipt of fire shot got injured and fell down. The P.Ws. tried to apprehend the accused but they ran away from the spot. Zahid Saleem succumbed to the injury on the spot. As to the motive, it was alleged that the land of Riaz Hussain co-accused (since dead), which was adjacent to the land of the complainant, was in possession of the complainant. Riaz Hussain wanted to get back the possession of his land and on account of that grudge, both the accused committed the murder of the deceased.

4. On 22-7-2000, Anwar Ullah Khan, S.-I./P.W.10, after registration of the F.I.R. Exh.P.F., proceeded to the spot; recorded the statements of Zahoor Hussain, Mazhar Abbas, and Muhammad Riaz son of Noor Muhammad, P.Ws., under section 161, Cr.P.C. He then prepared inquest report Exh.P.B. and injury statement Exh.P.C. of the deceased and sent the dead body for post-mortem examination. He collected blood stained earth from underneath the dead body and sealed the same into a parcel through memo. Exh.P.C. He also took into possession two empties P.4 and P.5 from the spot through memo. Exh.P.H. and also prepared rough site plan of the place of occurrence (Exh.P.K.). He also got prepared scaled site plan Exh.P.D. of the place of occurrence from the Draftsman. On 31-7-2000 Ghulam Nabi appellant was arrested and on 3-872000, while in custody, the appellant led to the recovery of .30' bore pistol P-6 vide memo. Exh.P.J. After completion of investigation, the appellant along with Riaz Hussain was challaned to face the trial.

5. To prove its version at the trial, the prosecution produced as many as ten witnesses and after tendering the evidence, the reports of Chemical Examiner Exh.P.M., Serologist Exh.P.N. and Forensic Science Laboratory Exh.P.O. closed its side.

6. In his statement recorded under section, 342 Cr.P.C., the appellant pleaded his innocence and false implication in the following words: "The case is false and fabricated. All the P.Ws. are inter se related, interested and inimical towards me and my deceased co-accused. They have deposed falsely. The motive is also false, that is why the P.Ws. during trial introduced a new motive contradicting the, motive as mentioned in the F.I.R. and in their statement under section 161, Cr.P.C. For this purpose the site plan was not got prepared from concerned Patwari, so that the real facts may not come on record and motive may not be contradicted as mentioned in the F.I.R. and by P.Ws. The site plans are usually got prepared by the concerned revenue Patwari where the occurrence takes place out of Abadi as is in this case. The eye-witnesses as mentioned their places/shops in the site plans could not see and reach the alleged place of occurrence during fight as stated by them. The documentary evidence which I shall produce in my defence would reveal that the marriage of Mahr Manzoor Hussain with Mst. Nusrat daughter of Noor Muhammad Kathia took place on 22-7-2000. It is, therefore, clear that according to the prevailing custom and tradition of the Ilaqa and brothery the participants of the marriage ceremony fired in the air at the time of Rukhsati to enjoy and celebrate marriage and during that firing without any intention, premeditation, preparation and motive some fire may have hit the deceased negligently. The case was registered after due consideration, consultation, deliberation and spot inspection after changing the place of occurrence, that is why the post-mortem was conducted on the next day and Roznamcha was stopped. There is no value of the report of Forensic Science Laboratory as the alleged empties were sent to the laboratory after the recovery of alleged weapon of offence. It is also interesting that according to memo. Exh.P.J., the alleged pistol P.6 was not made into a sealed parcel. I appeared before Investigating Officer from very beginning and pleaded my innocence but the Investigating Officer delayed my arrest and had not brought my true statement, defence and the actual facts on the file due to the pressure of the complainant party. The recoveries of empties, blood stained earth and pistol are bogus, forged and have been planted against me through interested P.Ws. In fact nothing was recovered and the story of the recoveries is also false. From the above facts and circumstances and after the perusal of the evidence, it is very much clear that the prosecution has concocted a false story to implicate and connect me with the crime." The appellant neither appeared as his own witness under section 340(2), Cr.P.C. nor did he produce any witness in his defence. However, he placed on record copies of F.I.Rs. as Exhs.D.B. and D.C. and invitation cards Mark "D/1" and Mark "D/2" and closed his defence.

7. At the very outset, learned counsel for the appellant submits that instead of pressing for acquittal, he would pray for lesser punishment. He has substantiated his prayer by arguing that admittedly, there was no previous enmity between the deceased and the appellant; that the defence plea that the deceased lost his life during firing made on the occasion of marriage is supported by Exhs.D.1 and D.2 and the factum of recovery " of rifles from appellant as well as Mazhar Abbas-P.W. He has referred to Exhs.D.B. and D.C., available at pages 100 and 101 of the Paper Book respectively.

8. On the other hand, learned Additional Prosecutor General for the State submits that it was not a case of lesser punishment, as the appellant took the life of innocent person by firing at him from a close range, which factum was proved by the statement of the doctor. He supports the judgment passed by the learned trial Court.

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

10. Muhammad Sarfraz father of the deceased and Mazhar Abbas/P.W.6 who is cousin of the complainant have furnished the ocular account. Both of them have attributed the fatal shot to the appellant. The complainant during cross-examination admitted that he had no dispute over possession of land with the appellant. Similarly, no previous ill-will or enmity existed between Mazhar Abbas/P.W. and the appellant. It is neither a case of non-identification of the assailant nor it is a case of substitution. Both the witnesses could easily attribute the fatal shot to Riaz Hussain with whom dispute over possession of land existed. Substitution is a very rare phenomenon and in this part of the world it was most unlikely that a father would substitute the killer for an innocent person. The matter was reported to the police at police station (which was at a distance of eight miles from the scene of tragedy) within one hour of the occurrence. In F.I.R., it was specifically mentioned that the fire was caused by the appellant. The lodging of F.I.R. promptly negates false implication. The medical evidence fully supports the ocular version that the deceased lost his life due to fire arm injury which was caused on forehead.

11. As far as motive is concerned, the enmity existed between Riaz Hussain and the complainant over possession of land. There is no evidence of previous enmity or the existence of grudge between the appellant and the deceased or his father/complainant of the case. The only explanation offered by the prosecution was that Riaz Hussain was married with the sister of the appellant. The prosecution failed to prove any motive so far as the appellant is concerned. Similarly, the evidence of recovery of empties and their tallying with the weapon recovered at the instance of the appellant is not free from doubt and the same cannot be used against the appellant for the reason that appellant was arrested on 31-7-2000. According to prosecution case, he led to the recovery of .30 bore pistol on 3-8-2000. The empties which were recovered on 22-7-2000, were kept at police station for quite a long time without any reason and the same were received in the Forensic Science Laboratory (F.S.L.) on 18-8-2000. The pistol was received at FSL on 22-8-2000. According to P.W.B, he handed over the sealed parcel containing empties to Muhammad Arshad on 12-8-2000. He has given no reason as to why he kept empties at police station till the arrest of the accused and the recovery of the weapon. The dishonesty of the Investigating Officer and the Moharrer is also apparent from the fact that both the pistols had been recovered on 18-8-2000, yet the pistol was not sent along with empties and was sent to F.S.L. on 21-8-2000 in order to give impression that the empties and the weapons were sent on two different dates.

12. After scanning the entire evidence, we have concluded that the prosecution successfully proved its case against the appellant through direct evidence which was supported by the medical evidence and corroborated by the circumstances of the case like reporting the matter at the police station promptly. The learned counsel for the appellant has wisely not pressed the acquittal of the appellant.

13. Having come to this conclusion, we have given our considerate thought as to what should be quantum of sentence in the circumstances of the case. It was stated by the appellant before the learned trial Court in his statement recorded under section 342, Cr.P.C. that the deceased lost his life due to firing during marriage ceremony. In support of his plea, invitation cards of marriage ceremony were produced before the learned trial Court, which are available at pages 97 and 98 of the paper book. Perusal of Exh. Mark "D/1" (invitation card) reveals that Mazhar Abbas P.W. and Ghulam Nabi-appellant were mentioned in the list of persons under the heading. According to Exh. Mark "D/2", the marriage ceremony between Mehar Manzoor Hussain and Mst. Musarrat Bibi was to last from 10-00 a.m. to 4-00 p.m. Through this Exh. D.2, Mehar Ghulam Nabi appellant was invited to attend the marriage and the list under the includes Mazhar Abbas P.W. Perusal of these two cards, on the one hand, reveals that no enmity existed between Mazhar Abbas P.W. and Ghulam Nabi appellant and on the other hand, it shows that the statement of the appellant that there was a marriage ceremony on the fateful day is not without any substance. We would like to refer here-under some portion of the statement of the complainant which he made during cross-examination, available at page 26 of the paper book:

" ....It is incorrect that Manzoor Hussain contracted second marriage with Mst. Musarrat Bibi on the day of occurrence. I do not know Mst. Musarrat Bibi daughter of Noor Muhammad. Noor Muhammad is my uncle. I do not know as to how many sons has got my uncle Noor Muhammad. I also do not know about his daughters. Mst. Sabban is the wife of Noor Muhammad. Mst. Musarrat Bibi may be the daughter of my uncle Noor Muhammad but I do not know. I know nothing about any married daughter of my uncle Noor Muhammad. I do not know that Mst. Musarrat Bibi is the second wife of Manzoor Hussain " Perusal of the above noted part makes it manifest that the complainant was desperately attempting to hide the factum of marriage, which speaks volumes. In addition to that, P.W.-6 admitted it to be correct that F.I.R. No.174 of 2000 was registered against him at Police Station Tulamba for offence under section 13 of Arms Ordinance XX of 1965. He denied that he had seen accused Ghulam Nabi in police lock-up at Tulamba on 31-7-2000 when he was arrested. His denial is belied by the documentary evidence. Exh.D.B. an attested copy of F.I.R. No.173 of 2000 registered at Police Station Tulamba on 31-7-2000 at 3-30 p.m., available at page 100 of the paper book, reveals that at 3-30 p.m., Ghulam Nabi appellant was arrested after the recovery of unlicensed .7 mm rifle and eleven bullets. On the same date at the same police station, F.I.R. No.174 of 2000 was registered at 4-00 p.m. for the same offence. Certified copy of the F.I.R. Exh.D.C., available at page 101 of the paper book, reveals that Mazhar Abbas P.W. was also booked in the same for possessing an unlicensed .7 mm rifle. Ghulam Nabi appellant and Mazhar Abbas P.W. were arrested within half an hour's difference..So the assertion of Mazhar Abbas P.W. that he did not see Ghulam Nabi in the police lock-up on 31-7-2000 was unproved. The matter which has significance is that rifles were recovered on the same date from Ghulam Nabi appellant as well as Mazhar Abbas P.W. The recovery of the rifles and arrest of the appellant as well as P.W on the same, prima facie, supports the plea of the appellant that firing was made during marriage ceremony. In the above noted circumstances, the possibility that the deceased lost his life due to firing caused by the appellant on occasion of marriage ceremony cannot be ruled out. This would be a mitigating circumstance in favour of the appellant. Hence, while maintaining the conviction of the appellant for offence under section 302(b) PPC, we alter the sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C. is extended to the appellant. However, the order passed by the learned trial Court under section 544-A, Cr.P.C. would remain intact.

14. With the above modification/reduction in sentence, this appeal' stands partly allowed. The death sentence is not confirmed. The Murder Reference is answered in the negative. H.B.T./G-18/L Appeal partly allowed.