2008 PLP 425 (MLD)

MUHAMMAD FARRUKH MAHMUD, J.

This judgment will dispose of Criminal Appeal No.23/J of 2002 filed by Muhammad Anwar, who faced trial in case F.I.R. No. 183, registered at Police Station Depalpur, on 6-5-2000, for offences under section 302, P.P.C., before learned Additional Sessions Judge, Depalpur, who after conclusion of trial, vide his judgment; dated 17-4-2002 convicted the appellant under section 302(b), P.P.C. and sentenced him to Death.

2. Murder Reference No.282 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.

3. Brief facts of the case as mentioned in F.I.R. No. PA/1 are that on the fateful day at about 7-00 A.M. while the complainant Muhammad Iqbal and his brother Muhammad Irshad along with Talib and Liaqat Ali were present at the agricultural land of Iqbal Mughal, Muhammad Anwar armed with .12 bore gun came there and while raising Lalkara fired at Muhammad Irshad, which landed on his right shoulder. Muhammad Irshad succumbed to the injury at the spot. The P.Ws. tried to apprehend the accused but he fled away from the spot extending threats.

4. The motive behind the occurrence was the altercation which took place few days earlier to the occurrence over cutting of fodder.

5. After registration of formal F.I.R., the investigation of the case was taken over by Liaqat Ali, S.-I./P.W.11, who conducted thorough investigation, arrested the accused and after effecting recovery of .12-bore gun P-3, sent the accused to face trial.

6. At the trial, the prosecution in order to prove its case produced 11 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PM. and that of Forensic Science Laboratory. Exh.PN closed its case. The accused in his statement recorded under section 342, Cr.P.C. pleaded his innocence and false implication. In reply to question No.5 he replied as under:-- "I do not know why I have been involved in this case by the complainant party. I have no enmity with the Irshad deceased nor with the P.Ws. The deceased used to cultivate land of Iqbal Mughal two years prior to this occurrence. Deceased used to help the widow sister of Iqbal Mughal namely Nasreen alias Sheeno for putting to the fodder to the cattle and milking her buffalos. I was also employee of said Iqbal Mughal and had left his employment 3/4 months prior to this occurrence, due to his maltreatment. Upon which said Iqbal Mughal was annoyed with me. Said Iqbal Mughal also suspected illicit liaison of Irshad with his sister Mst. Nasreen alias Sheeno. Irshad deceased 15/16 days prior to this occurrence had also fired during the midnight at the house of Iqbal Mughal to harass him and pressurise him. The said fact was told by mother of said Iqbal Mughal, in the morning to me. Thereafter, I had gone to Lahore for labour work there and remained at Lahore for about 10 days. Then I returned back for harvesting of wheat crop on labour, on the day of occurrence I was working as labourer on the thresher of Ghulam Muhammad Maitla of my village and remained present at the said thresher since 8 AM in the morning up to evening that day, when the police came to my house and arrested me in this case. The P.Ws. were not present at the spot and they have deposed falsely against me at the instance, of Iqbal Mughal/landlord. I am innocent." He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court convicted and sentenced the appellant as stated above.

7. The learned counsel for the appellant having read the entire prosecution evidence statement of they appellant recorded under section 342, Cr.P.C. and other relevant material available on record in support of this appeal has contended that both the witnesses were related to the deceased and were chance witnesses; that both the. witnesses have contradicted each other on all the material points, as one witness has stated that at the time of receiving fire-arm injury the deceased was sitting while the other said that he was standing; that none of the two witnesses tried to apprehended the accused after the fire had been caused; that according to medical evidence the fire was caused from a very close range while according to P.Ws. the fire was caused from a distance of 20 feet; that the medical evidence reveals that the deceased lost his life much earlier than mentioned in the F.I.R.; that the learned trial Court has rightly disbelieved the recovery and motive; that in any case it was not a case of capital punishment, as motive though set in the F.I.R. could not be proved; that it is a case of single shot on non-vital part of the body and there is no evidence that the appellant tried to repeat the fire; and that the deceased and the appellant were the Labourers and no serious enmity or grudge existed between them prior to the occurrence.

8. On the other hand, the learned Additional Prosecutor General submits that the witnesses were natural, as they were present at the spot; that ocular account is' fully supported by the medical evidence; that the direct evidence was sufficient to record conviction and that insufficiency of motive or weakness of motive would not be enough to alter the sentence. He supports the judgment passed by the learned trial Court.

9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.

10. The occurrence took place at 7-00 a.m. in the month of May, so the daylight was available and the assailant could easily be identified. The appellant and the deceased had been working for one Iqbal Mughal and the parties knew each other very well. So question of mistaken identity is 'not involved in this case. Muhammad Iqbal-complainant is brother of the deceased while Liaqat P.W.2 married with sister of Muhammad Iqbal. Both the witnesses though related to the deceased had no previous ill will or grudge against the appellant, so as to involve him in a false case. The assembly of P.Ws. at the place where Muhammad Irshad was working is also not an unusual circumstance, as the complainant lived at a distance of four Acres. On the fateful day Muhammad Irshad-deceased was gathering wheat chaff in the land belonging to Muhammad Iqbal Mughal. It was early morning and so if the P.Ws. were gossiping nearby it cannot be said that they were chance witnesses. Their presence at the spot was not unnatural. The occurrence took place at 7-00 a.m. while the case was registered at Police Station, which was at a distance of 17-1/2 Km at 9-00 a.m. The prompt lodging of case suggests that the P.Ws. were present. No earthly reasons existed for the complainant to substitute the killer by an innocent man. The minor contradictions referred to by the learned counsel for the appellant are not material. It cannot be lost sight of the fact that the deceased and the P.Ws. were taken by surprise by the assailant, who suddenly emerged, caused fire and ran away from the scene of occurrence. The occurrence lasted for hardly a minute, so all the witnesses could see was coming of the assailant at the spot and his firing upon the deceased.

11. The direct evidence is supported by the medical evidence, as undoubtedly the deceased lost his life due to fire-arm injury. Furthermore the post-mortem was conducted at 4-30 p.m. on the very date of occurrence. The Doctor was cross-examined merely on the point as to when rigor mortis sets in and sets out. It was not even suggested to him that the deceased died much earlier than the time of death mentioned in the inquest report or in the F.I.R. The argument of the learned counsel for the appellant that according to Doctor, the fire was caused from close range while according to site-plan the fire was caused from a distance of 20 feet, is without force, as the site-plan was not a substantive piece of evidence and no question was put to the witnesses about the distance from where the fire was caused. It may be noted here that the doctor did mention in his report that he observed blackening around each of the wound vis-a-vis injury No.1. At the same hand, according to the doctor, injury No.1 consisted of five fire-arm entry wounds in an area measuring 12 cm x 11 cm x going deep over the top of right shoulder; each wound measured 75 c.m. x. 75 c.m. x going deep. The description shows that the pellets spread and it happens only when the injury is caused from distance and not from close range.

12. The learned trial Court for valid reasons held that the evidence of recovery of gun was of no consequence in this case.

13. Non coming to the evidence of .motive, both the P.Ws. stated that altercation took place between the deceased and appellant over cutting of barseen few days prior to occurrence. However, the complainant conceded that he was not present when the altercation took place. Similarly Liaqat Ali P.W.2 stated that he was not present at the time of altercation and he had only heard about it. He further stated that the accused simply fired at Irshad deceased and murdered him over annoyance of cutting of barseen and there was nothing else-. Statements of the P.Ws. clearly show that there was no serious background of any quarrel or enmity between the deceased and the appellant. The story put forward by the appellant in his statement before the learned trial Court and through cross-examination is not supported by any evidence. According to appellant, Iqbal Mughal suspected illicit liaison of Irshad with his sister Mst. Nasreen alias Sheeno and he was roped in this false case on the instance of Iqbal Mughal, who was landlord of the complainant party. Only a bald allegation has been levelled against the deceased and sister of Iqbal Mughal. The P.Ws. admitted that Mst. Nasreen; sister of Iqbal Mughal, along with her children was living in the Haven of Iqbal Mughal but they also stated that the lady was widow and her father-in-law also stayed with her. The witnesses stated that Irshad used to help Mst. Nasreen in daily chores. It was very natural conduct on the part of the deceased as he was working for Iqbal Mughal but it would not mean that he developed illicit relationship with Mst. Nasreen. The defence was put to the complainant but the same was not put to P.W.2. No evidence is available on record, whatsoever, about the illegal intimacy between deceased and Mst. Nasreen. Perusal of statement of appellant reveals that in one breath he said that Iqbal Mughal was annoyed with him and due to his maltreatment he left Iqbal Mughal 3/4 months prior to the occurrence, while in the second breath he stated that mother of Iqbal Mughal informed him that Irshad-deceased had also fired during midnight at the house of Iqbal Mughal to harass and pressurize him, 15/16 days prior to the occurrence. Iqbal Mughal, who according to appellant was annoyed with him, would now tallow the appellant to enter his Haveli and talk with his mother. The defence plea being baseless is rejected.

14. In our considered view the prosecution has proved its case through reliable confidence inspiring direct evidence, which is corroborated by the circumstances of the case.

15. After coming to this conclusion we have given our considerate thought to the quantum of sentence in the circumstances of the case. It has been noticed by us that though the motive was set in the F.I.R. yet it could not be proved during trial as no serious enmity existed between the deceased and the appellant over trivial matter the appellant; who was of the age of 20 years at the time of occurrence, got annoyed and caused a single fire, which landed on the back of shoulder of the deceased; there is no allegation that the appellant in order to ensure the death of Irshad even tried to repeat the fire; and recovery evidence as well as evidence of motive have been disbelieved by the learned trial Court. In these circumstances, we feel that it would be safer to reduce the sentence of the appellant. Hence, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C. we alter his sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C. is given to the appellant. The learned trial Court had not imposed compensation upon the appellant. In our view the provisions of section 544-A, Cr.P.C. are mandatory, therefore, notice was given to the learned counsel of the appellant on that regard, who accepted it. Thus, the appellant is directed to pay compensation amounting to Rs.50,000 to the legal heirs of the deceased, in default of realization or payment thereof the appellant would suffer six months' S.I.

16. Murder Reference is answered in the negative and the sentence of death is not confirmed. N.H.Q./M-97/L Sentence reduced.