2006 PLP 1818 (YLR)

CH. IFTIKHAR HUSSAIN, J.

Appellant Muhammad Iqbal through Criminal Appeal No.187 of 2000 has challenged his conviction and sentence recorded vide the judgment delivered on 19-2-2000 by Ch. Faiz Talib Khan, learned Sessions Judge Jhang in case F.I.R. No.347 dated 10-9-1997 under section 302134, P.P.C. registered with 'Police Station Bhowana District Jhang.

2. He vide the same has been convicted under section 302(b), P.P.C. and sentenced to death subject to confirmation by this Court.

3. The learned trial Court has submitted the murder reference mentioned above (No.114 of 2000) for confirmation of his sentence of death as required under section 374, Cr.P.C.

4. It may be mentioned here that the appellant's co-accused Nasir Ali vide the impugned judgment has been acquitted of the charge giving him the benefit of doubt.

5. Suba, the complainant in the case has brought the criminal appeal mentioned above (No.376 of 2000) challenging his acquittal in the, case.

6. As all these three matters have arisen out of one and the same case, hence these are being disposed of by this single judgment.

7. Briefly the facts relevant for the disposal of these matters are that the said case has been registered on the statement Exh.PB of complainant Suba (P.W.8). The same is to the effect that he on 10-9-1997 at about 7-00 a.m. along with his brother Muhammad Aslam was going to their Dhari from their house. They when reached at some distance from the village Abadi, Nasir son of Khushaal, Caste Naul, their co-villager crossed them and he went ahead of them. Muhammad Iqbal son of Muhammad Khan, Caste Chadhar, resident of Chak No.221, was sitting in ambush in a maiz crop. He informed him of their arrival there. Muhammad Iqbal suddenly came out of the crop and raised Lalkara. He made straight shot ' with .12 bore gun at Muhammad Aslam, which hit him on his right thigh, who fell down. He raised alarm whereupon Zafar and Mansabdar, who were passing close by were attracted to the spot and they witnesses the occurrence. They tried to apprehend them but they managed good their escape. He carried Muhammad Aslam in an injured condition towards Civil Hospital, Bhowana but he succumbed to his injuries in the way to the same. The motive behind the occurrence is old enmity between them and the accused.

8. The appellant and his aforesaid co-accused after due investigation were challaned to the Court.

9. The learned trial Court formally charged them under section 302 read with section 34, P.P.C. They pleaded not guilty. The prosecution at their trial had examined it's 11 witnesses in all. They were Aftab, constable (P.W.1), Muhammad Yousaf (P.W.2), Ghulam Shabbir, Head constable (P.W.3), Abdul Sattar, H.C. (P.W.4), Mushtaq Ahmad, constable (P.W.5) Muhammad Nawaz, constable (P.W.6), Dr. Saifullah Haral (P.W.7), complainant Suba (P.W.8), Zafar (P.W.9), Muhammad Younis, Inspector (P.W.10) and Muhammad Sharif, A.S.-I. (P.W.11).

10. The report of the Chemical Examiner Exh.PK and that of the Serologist Exh.P.1 were tendered in the prosecution evidence.

11. Sarfraz Khan, constable was examined as C. W.1. His testimony is to the effect that P.W. Bhai Khan Patwari has expired. He has proved his report Exh.C.W.-1/1 on the summon of the said Patwari.

12. The appellant and his acquitted co-accused have denied the allegation appearing against them in the prosecution evidence. Appellant has pleaded bare denial and innocence. He has attributed his involvement in the case to enmity. He, however, declined to depose on oath in proof of the allegation appearing against him in the prosecution evidence as required under section 340(2), Cr.P.C. He has produced Exh.DC, the copy of F.I.R. No.72 dated 27-2-1996 registered with Police Station Bhowana, Exh.DD, the copy of F.I.R. No.88 of 1996 of the same police station as that of F.I.R. No.150 dated 27-4-1996 of the said police station as Exh.DE.

13. The learned trial Court after hearing the parties found him guilty of the Qatl-e-Amd of deceased Muhammad Aslam and so convicted and sentenced him as mentioned above. It, however, has found that the charge against his co-accused Nasir Ali has not been proved beyond any reasonable shadow of doubt. It, so has been given him the benefit of the same and acquitted of the charge.

14. It, has been contended on behalf of the appellant (in Criminal Appeal No.187 of 2000) that the presence of the eye-witnesses at the spot is doubtful as they were chance witnesses as well as related to the deceased; that the medical evidence is not fully supportive to the ocular testimony as the deceased was fired at right thigh while according to the medical evidence he had multiple small lacerated oval wounds of entry in an area of 6 x 5 1/2 c.m. on the back inner part of his right upper thigh with lacerated wounds of exit in an area of 7 x 6 c.m. on the front of that thigh and a grazing lacerated wound 2 x 1 c.m. on the inner side of left thigh; that the motive has also not been proved as it has come in the evidence of the complainant alone and that too with some variation than the one in F.I.R. Exh.PB; that there is conflict in the site-plan without scale Exh.PH prepared by the I.O. and Exh.J prepared by the Patwari in scale regarding the position of the eye-witnesses at the time of the occurrence and this makes the' prosecution case against him as doubtful; that the recovery of crime weapon gun P.3 is inconsequential as no matching report is available to the prosecution to show that in fact the same was used in the commission of the crime; and that in any case the sentence of death awarded to him is too severe to be maintained in the facts and circumstances of the case.

15. As against the same, learned counsel for the State has supported. the impugned judgment of conviction and sentence of the appellant saying that the ocular account is reliable; that the eye-witnesses have offered satisfactory explanation of their presence at the spot and of their having witnessed the occurrence; that conflict, if any, in the two abovementioned site-plans is of no significance in this case as these are not substantive pieces of the evidence and so could not be used to contradict the witnesses and to discredit them in their deposition; that there is no contradiction in between the ocular testimony and the medical evidence and the latter rather is fully supportive to the former; that the motive set up by the prosecution also fully stands proved on the record and the same rather in a way is admitted by the appellant's side; and that it was day time occurrence and the appellant is the person who has been attributed fire-shot to the deceased and so he was rightly convicted and sentenced.

16. We have carefully considered the submissions made from both the sides with the help of the record.

17. The ocular account of the prosecution has been furnished by complainant Suba (P.W.8) and Zafar (P.W.9). They no doubt are related to each other as well as the deceased but this itself was not sufficient to discredit them in their testimony.

18. They were unanimous on all the material particulars of the prosecution case i.e. time, venue and the mode of the occurrence. There has not been found any significant or material discrepancy in them as regards these particulars of the prosecution case.

19. Suba is the real brother of the deceased. It is his version that he along with him was going towards their Dhari from the house. He is a cultivator. The accompanying of him to his deceased brother to their Dhari for such purpose at that time of the day i.e. 7-00 a.m. was not an abnormal thing. He belonged to the village where the incident had taken place. His explanation for his presence at the spot along with the deceased, thus is there and the same seems satisfactory. It so, is hard to discredit him on any reason available from the evidence on the record. It, therefore, cannot be said with legitimacy that he has not seen the occurrence.

20. It was a daylight occurrence. The appellant Muhammad Iqbal has been nominated by him as the only person, who c had fired with gun at deceased. He did not attribute any such role to the acquitted accused. There hardly seems any reason with him to substitute an innocent person for real accused.

21. P.W. Zafar is also resident of that very village. He too has given the explanation of his presence at the spot at the relevant time. According to him, he along with Mansabdar P.W. was going to their Dhari when he happened to see the occurrence. He too is a cultivator. His, thus going to his Dhari at that time too was not an abnormal thing. The explanation of his presence at the spot, thus too seems to be satisfactory. There has been found no reason with us to discredit him in this behalf.

22. He is consistent with the complainant Suba in the above indicated material particulars of the prosecution case completely. There has hardly been pointed out any material discrepancy in them on any important/material aspect of the prosecution case.

23. The unanimity in their deposition has convinced us that they had seen the occurrence. We, therefore, have found no force in the contention that they were the chance witnesses and have not witnessed the occurrence. The same therefore, is repelled.

24. The incident as is obvious from the above position had taken place at about 7-00 a.m. on 10-9-1997. The report regarding the same was made to the police just within two hours of the same particularly when the distance between the venue and the police station was five miles, The report to the police, therefore, could be said to be with promptitude. There has not appeared to us any striking delay in the same. It has contained all the necessary details of the incident. It, therefore, could safely be used to corroborate P.W.8 Suba.

25. The eye-witnesses have mentioned that the appellant with .12 bore gun had fired at the deceased which hit him on his right thigh. The above named doctor has found the following injury on the dead body of the deceased:-- "Multiple small lacerated oval wounds of entry in an area of 6 x 5 ,1/2 c.m. on back, inner part of right upper thigh with lacerated wounds of exit in an area of 7 x 6 c.m. on front of thigh. A grazing lacerated wound 2 x 1 c.m. on inner side of left thigh was also present." He has given the time of occurring of the death of the deceased within half to one hour and between death and post-mortem within 6 to 10 hours.

26. It is in the eye-witnesses account that the deceased after sustaining of the injuries was removed to the hospital and he expired in the way to the same. The time of death of the deceased thus, has fully tallied with such version of the eye-witnesses.

27. The doctor has conducted autopsy on the dead body of the deceased at 2-30 p.m. on the same day. It, thus was within the time of the same as had appeared in the ocular testimony. The medical evidence, thus has completely commensurated with the position of these events in the evidence of the eye-witnesses.

28. Although, the eye-witnesses have mentioned that the fire-shot made by the appellant had hit the deceased at this right thigh and according to the evidence of the doctor, the above injury was on the back inner part of the right thigh with lacerated exit wounds on front of thigh, but there is no much difference in the same. The injury was on the back inner upper part of the right thigh with an exit on the front of the same. This might have been suffered by the deceased when about to turn to avoid the hitting of the fire to him. This injury, however, suggests that the fire had hit the deceased on his right thigh. As regards the grazing lacerated wound on the left thigh of the deceased, the same might have been caused by hitting of a pellet after striking the right thigh. So we have not found any much difference in between the ocular F account and the medical evidence in that regard. The contention raised on behalf of the appellant, thus has been found to be without any force.

29. The evidence regarding the motive with the appellant to kill the deceased has been furnished by P.W.8 Suba, He has has prepared the scaled plan Exh.PJ has expired. He, so could not be brought to the witness-box to elicit from him that how he has shown the presence of the eye-witnesses at the spot at the relevant time. He unless could be confronted with the position of the presence of the eye-witnesses at the spot in Exh.PJ it is not correct to say in any way that it is in conflict with the one shown by the I.O. in his said plan without scale. It in such circumstances, when the Patwari has not been produced to prove the same could not be used to contradict or discredit the evidence of the witnesses. Even otherwise site-plan is not a substantive piece of I evidence. In this regard reference can be made to the case of Taj Ali Khan v. The State (1999 SCMR 2444). The contention raised by the appellant's side in this regard therefore, is without any relevance and so of no legal significance. The same, therefore, is repelled.

30. The evidence regarding the recovery of crime weapon gun P.3 has been furnished by P.W.6 Muhammad Nawaz, constable and P.W.11 Muhammad Sharif, A.S.-I. The learned trial Court has not relied upon such recovery for want of collection of empty from the spot. This was right approach towards that aspect of the matter as admittedly no crime empty was recovered from the spot and so no matching report of the expert was available to the prosecution to show that in fact the said gun was used during the occurrence. This recovery, therefore, was inconsequential and the same was rightly discarded by the learned trial Court.

31. Anyway, on the basis of the ocular testimony supported by the medical evidence and the motive, the charge of Qatl-e-Amd of the deceased against the appellant stood proved to the hilt. He, mentioned that the accused had committed the murder of one Nazar Musalli and the deceased was a witness to the same and so they have committed his murder. Although, the complainant in the F.I.R. Exh.PB has mentioned the motive behind the occurrence to be previous enmity between them and the accused but the factum of existence of enmity between the parties has not been denied by the appellant's side itself. The appellant himself in his statement under section 342, Cr.P.C. has attributed his involvement in the case to enmity. He has produced Exh.DC, the copy of F.I.R. No.72 registered at the above said police station on 27-2-1996. It was from deceased Muhammad Aslam against Altaf, the son of the complainant and others. It, thus was much prior to the present occurrence. All this establishes that the parties were on inimical terms with each other even prior to the occurrence. The existence of enmity between the parties, thus is a proven fact on the record. It, therefore, has no much effect upon the veracity of the complainant's testimony, if he had stated at the trial that the accused had murdered the deceased due to the murder of Nazar Musalli. It is in fact in the same background of enmity between the parties. The motive set up by the prosecution, thus stands proved on the record satisfactorily. The contention raised by the appellant's side in this regard is therefore, repelled.

30. As regards the contention regarding the difference between the site-plan without scale Exh.PH prepared by the I.O. and Exh.PJ in scale by the Patwari, the same has no much relevance in facts and circumstances of the case. There is no doubt that the I.O. in the plan without scale has mentioned the place of presence of the eye-witnesses at the relevant time towards the South of the same but the Patwari, who has prepared the scaled plan Exh.PJ has expired. He, so could not be brought to the witness-box to elicit from him that how he has shown the presence of the eye-witnesses at the spot at the relevant time. He unless could be confronted with the position of the presence of the eye-witnesses at the spot in Exh.PJ it is not correct to say in any way that it is in conflict with the one shown by the I.O. in his said plan without scale. It in such circumstances, when the Patwari has not been produced to prove the same could not be used to contradict or discredit the evidence of the witnesses. Even otherwise site-plan is not a substantive piece of I evidence. In this regard reference can be made to the case of Taj Ali Khan v. The State (1999 SCMR 2444). The contention raised by the appellant's side in this regard therefore, is without any relevance and so of no legal significance. The same, therefore, is repelled.

31. The evidence regarding the recovery of crime weapon gun P.3 has been furnished by P.W.6 Muhammad Nawaz, constable and P.W.11 Muhammad Sharif, A.S.-I. The learned trial Court has not relied upon such recovery for want of collection of empty from the spot. This was right approach towards that aspect of the matter as admittedly no crime empty was recovered from the spot and so no matching report of the expert was available to the prosecution to show that in fact the said gun was used during the occurrence. This recovery, therefore, was inconsequential and the same was rightly discarded by the learned trial Court.

32. Anyway, on the basis of the ocular testimony supported by the medical evidence and the motive, the charge of Qatl-e-Amd of the deceased against the appellant stood proved to the hilt. He, therefore, was rightly convicted. We, therefore, maintain his conviction.

33. However, as regards the question of quantum of sentence to him, we have found that he has caused solitary fire-shot to the deceased. He never repeated the shot to him. He has chosen the non-vital part of the body in causing him fire-arm injury. These reasons have constituted the mitigation in his case. We, therefore, exercising our discretion in the matter of sentence to him, reduce his sentence to imprisonment for life from death.

34. The learned trial Court did not order the appellant to pay compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. This was an omission on its part. We, therefore,- direct him to pay Rs.50,000 as compensation to the legal heirs of the deceased and in default to suffer six months S.I. He shall be given the benefit of section 382-B, Cr.P.C. Inasmuch as that the period of detention suffered by him as undertrial shall be counted towards his sentence.

35. With the above reduction in his sentence, we dismiss his appeal. The murder reference is answered in the negative. The death sentence awarded to him is not confirmed.

36. As regards the Appeal (No.376 of 2000) of complainant Suba, nobody has come forward to pursue the same.

37. We have found that no overt act qua the deceased has been ascribed to Nasir Ali acquitted accused. He has been attributed the only role of informing appellant Muhammad Iqbal of the arrival of L the complainant and the deceased at the site. Complainant Suba in the cross-examination has admitted that his uncle Haq Nawaz had abducted his sister Ghulam Fatima. It, thus cannot be lost sight of the fact that there is tendency in our people to rope in maximum number of family members of adversary to wreak vengeance. The learned trial Court, thus in the above circumstances of the case, has rightly exercised abundant precaution in the matter of his acquittal. There has been found no reason to take any legitimate exception to the same. We, therefore, dismiss his appeal being devoid of force. N.H.Q./M-1318/L?????????????????????????????????????????????????????????????????????????????? Order accordingly.