2019 PLP 95 (YLRN)

SADAQAT ALI KHAN, J.

This single judgment shall dispose of Criminal Appeal No. 490 of 2014 filed by Nazir Ahmad appellant (against his convictions) and M.R. No. 79 of 2014 sent by Trial Court for confirmation of his death sentence or otherwise, as both the above stated matters have arisen out of the same judgment dated 7.11.2014 passed by learned Sessions Judge, D.G. Khan, whereby appellant was convicted and sentenced as under:-- Nazir Ahmad appellant:

1. He was convicted under section 302(b), P.P.C. and sentenced Death as Ta'zir along with compensation Rs. 5,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.C., failing which same were ordered to be recoverable from him as arrears of land revenue, failing which, he has to further undergo S.I. for six months.

2. He was also convicted under section 324, P.P.C. and sentenced 5-years RI on two counts along with fine Rs. 10,000/- each payable to Muhammad Suleman and Muhammad Ismail injured, failing which he has to further undergo S.I. for one month each.

3. He was convicted under section 337-F(iii), P.P.C. and sentenced 1-year R.I. along with Daman Rs. 30,000/- payable to Muhammad Ismail injured.

4. He was also sentenced to pay Rs. 50,000/- as Daman to Muhammad Suleman injured and 2 years R.I. under section 337-F(vi), P.P.C. All the sentences were ordered to be run concurrently. Benefit of Section 382-B, Cr.P.C. was given to the appellant/convict." In case FIR No. 804 dated 16.10.2010 under section 302/ 324/34, P.P.C. Police Station Saddar Didtrict D.G. Khan.

2. The facts of the case have been stated by Muhammad Ismail son of Juma Khan complainant (PW6) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts: "Stated that on 16.10.2010 at about 3.30 P.M (noon) I along with my brother Abdul Majeed were present outside our house. Abdul Hameed my brother, Muhammad Ismail son of Ghulam Shabbir and Suleman were coming towards house on foot on a kacha way in front of us. In the meanwhile Nazir accused present in Court along with Aslam emerged before Abdul Hameed etc. Both accused having Kalashnikovs. Aslam made firing with his Kalashnikov which hit on the different parts of legs of Muhammad Ismail son of Ghulam Shabbir. He fell down. Nazir accused present in Court made firing with his Kalashnikov which hit Abdul Hameed brother on the different parts of his body and some bullets were hit to Suleman. Both fell down. I along with Abdul Majeed reached at the spot. In our view accused persons fled away from the spot along with their respective weapons. We attended the injured persons and took them through 1122 to the DHQ Hospital, D.G. Khan. The motive behind the occurrence is that few days prior to the occurrence dogs of Basit of Nazir and Hameed fight with each other. Hot words were exchanged between Nazir and Hameed at the fight of their dogs. Both the accused with their common intention fired on Hameed, Ismail and Suleman. Police met me at the hospital where injured persons were present. Police recorded my statement Ex.PH which was read over to me and I thumb marked on the same as a token of its correctness."

3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.C. was submitted in the trial Court.

4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge against the appellant, to which he pleaded not guilty and prosecution evidence was summoned.

5. The Prosecution produced 13 PWs (PW1 to PW13) and after tendering certain documents Exh.PA to Exh.PV, closed its evidence.

6. Medical evidence has been furnished by Dr. Ghulam Abid Hussain PW-4, who conducted post-mortem examination on the dead body of Abdul Hameed deceased and Dr. Shamas-ud-Din PW-11, who medically examined Abdul Hameed deceased (in injured condition), Suleman injured PW-8 and Muhammad Ismail son of Shabbir Hussain injured PW-7.

7. On the other hand, statement of the appellant was recorded under Section 342, Cr.P.C. who refuted the allegations so levelled against him. The appellant neither opted to appear as witness under Section 340(2), Cr.P.C. nor produced any oral defence evidence, however, he produced document Exh.DA in his defence.

8. After conclusion of the trial, learned trial Court convicted the appellant with above said sentences. Hence this appeal.

9. Learned counsel for the appellant has contended that:- (i) the impugned order judgment of the trial Court is against law and facts on the file and is liable to be set-aside; (ii) that the prosecution has failed to prove its case against the appellant/convict as there are many major discrepancies in the statements of the PWs and the learned trial Court has convicted the appellant on the basis of surmises and conjectures; (iii) it is contended that the impugned judgment of the trial Court is not maintainable in the eyes of law; (iv) lastly submitted that instant appeal may be accepted and the impugned judgment of the trial Court may kindly be set aside and appellant / convict may be acquitted.

10. On the other hand, learned D.P.G assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that:-- (i) the prosecution has proved its case beyond any shadow of doubt against the appellant/convict with solid evidence and prayed for the dismissal of the appeal.

11. We have heard the learned counsel for the appellant as well as learned D.P.G assisted by learned counsel for the complainant, on perusing the record with their assistance, observed as under:-- (i) The detail of prosecution. case has already been given in para-2 of this judgment, therefore, there is no need to repeat the same to avoid the duplication and repetition. (ii) According to the FIR, Abdul Hameed was done to death on 16.10.2010 at 3:30 p.m. in the street of his house, regarding which FIR Exh.PH/1 was registered on 16.10.2010 at 6:05 p.m. on the statement Exh.PH made by his real brother Muhammad Ismail son of Juma Khan complainant PW

6. The prosecution has introduced following accused in this case.

1. Muhammad Aslam This accused is still P.O. as stated by learned D.P.G.

2. Nazir Ahmad Appellant (iii) Mohammed Ismail son of Jumma Khan complainant PW6, Mohammed Ismail son of Shabbir Hussain (Ghulam Shabbir) injured PW7 and Mohammed Suleman injured PW8 while claiming themselves to be the eye-witnesses of the occurrence, stated in their statements (examination-in-chief) regarding role of the appellant and his co-accused that on 16.10.2010 at about 3.30-pm Aslam accused (since P.O.) while armed with Kalashnikov made firing which hit on both the legs of Ismail son of Ghulam Shabir PW

7. Nazir Ahmad appellant made firing with Kalashnikov which hit on different parts of the body of Abdul Hamid deceased. Muhammad Suleman PW8 also sustained fire-arm injury during the occurrence on his right foot. All these three eye-witness were cross-examined at length, but their evidence could not be shaken during the process of cross-examination. They have corroborated one another on all material aspects of the case. They have also established their presence at the time of occurrence at the place of occurrence with their stated reasons. Their evidence is straight forward, trustworthy and confidence inspiring. (iv) Medical evidence has been furnished by Dr. Shamas-ud-Din PW11, who earlier had medically examined Abdul Hameed deceased in injured condition, Muhammad Suleman injured PW8, Muhammad Ismail son of Shabbir Hussain (Ghulam Shabbir) injured PW7 and observed fire-arm injuries on their persons. Dr. Ghulam Abid Hussain PW4 conducted post-mortem examination on the dead body of Abdul Hameed deceased and observed fire-arm injuries on his person attributed to the appellant, which were ante-mortem in nature and were sufficient to cause death in ordinary course of nature. Therefore, medical evidence has fully supported the ocular account furnished by above mentioned eye-witnesses. (v) Mohammed Ismail son of Jumma Khan complainant PW6 stated regarding motive of the occurrence in the FIR that few days prior to the present occurrence, Nazir Ahmad appellant and Abdul Hamid deceased had an altercation. He (Mohammed Ismail complainant PW6) while making improvement in his statement before the trial Court stated regarding motive of the occurrence that few days prior to the occurrence dogs of Basti of Nazir (appellant) and Hameed (deceased) fought with each other, hot words were exchanged between Nazir Ahmad appellant and Abdul Hameed deceased at the fight of their dogs. Muhammad Suleman injured PW8, did not utter even a single word regarding above said motive. Even otherwise, Muhammad Ismail complainant PW6 and Muhammad Ismail son of Ghulam Shabbir PW7 did not give any specific time, place and date of altercation allegedly took place between Nazir Ahmad appellant and Abdul Hameed deceased. Considering this, we are of the view that the prosecution has failed to prove motive. (vi) Recovery of Kalashnikov P8 on pointing out of Nazir Ahmad appellant in presence of negative report of P.F.S.A. Exh.PU is inconsequential in the present case. (vii) Adverting to the defence plea of Nazir Ahmad appellant, he stated in answer to question "why this case has been made against you as under:-- "I am innocent. I have been falsely implicated in this case due to enmity. I have eight daughters and cannot imagine to commit such an occurrence. On the fateful day my daughters were present in the fields of paddy to help while padding the rice crop. Abdul Hameed deceased, Suleman and Ismail attempted to outrage modesty of my daughters and due to said reason accused Muhammad Aslam (since P.O.) made firing at the spot under grave and sudden provocation on the deceased as well as injured persons. Being father of Aslam accused I am involved falsely in this case." The appellant neither opted to appear as witness under section 340(2), Cr.P.C. nor produced any oral defence evidence, however, he produced document Exh.DA in his defence. Considering above, it is concluded that the appellant has failed to prove his defence plea and learned trial Court has rightly discarded his defence plea with sufficient reasons.

12. In view of the above discussion, even if evidence of motive and recovery of Kalashnikov P-8 is excluded from consideration, even then the prosecution has proved its case beyond shadow of doubt against Nazir Ahmad appellant through the evidence discussed earlier.

13. Now, coming to the quantum of sentence, we have noted some mitigating circumstances in this case. Firstly, recovery of Kalashnikov P8 on pointing out of the appellant is inconsequential in presence of negative report of PFSA Exh.PU; Secondly, motive story has been disbelieved with the reasons mentioned in sub para-v of para 11 of this judgment. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which resulted into present unfortunate incident. Therefore, in our view death sentence awarded to the appellant is harsh one.

14. It is well record principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. Reliance is placed on case titled Mir Muhammad alias Miro v. The State 2009 SCMR 1188). Further reliance is placed on case reported as Zafar Iqbal and others v. The State (2014 SCMR 227).

15. Considering above, conviction of Nazir Ahmad appellant in offence under Sermon 302(b), P.P.C. for committing the murder of Abdul Hameed deceased is maintained but his sentence is altered from death to imprisonment for life. The compensation and sentence in default thereof awarded by the trial Court through the impugned judgment are also maintained and upheld. As appellant has not been attributed and injury on the person of Muhammad Ismail injured PW

7. Prosecution has failed to prove common intention between both the accused, thus Nazir Ahmad appellant could not have been convicted in offence under sections 337-F(iii) and 324, P.P.C. for causing injuries on the person of Muhammad Ismail injured PW7; hence, conviction and sentences of the appellant in offences under sections 337 F(iii) and 324, P.P.C. on one count for causing injuries on the person of Muhammad Ismail injured PW7 are hereby set aside. However, conviction and sentences of the appellant on other heads in offences under section 324 (on one count) and 337-F(vi), P.P.C. for causing injuries on the person of Muhammad Suleman injured PW8 are maintained and upheld. All the sentences shall run concurrently. Benefit of Section 382-B, Cr.P.C. is given to the appellant.

16. Consequently, with the above said modification in the impugned judgment, criminal appeal filed by Nazir Ahmad appellant is hereby dismissed. Murder Reference is answered in NEGATIVE and death sentence of Nazir Ahmad appellant is NOT CONFIRMED.

17. Before parting with this judgment, it is observed that Muhammad Aslam co-accused of the appellant is still P.O. His case shall be decided by the learned trial Court on its own merits without being influenced from this judgment whenever he is arrested. SA/N-29/L Sentence reduced.