2011 SCMR 824 (PLP)

TASSADUQ HUSSAIN JILLANI, J.

Appellant along with two others were tried in the case (registered vide F.I.R. No. 29 dated 11-2-1997 at Police Station Dijkot, Faisalabad). In terms of the judgment of the learned trial Court dated 30-3-2002, all the three accused were convicted and sentenced as under: (i) Azmat @ Lambru under section 302(b)/34, P.P.C. Sentence to death with a compensation of Rs. 50,000 payable to the legal heires of the deceased Tariq Farooq or in default of payment thereof to under,go S.I. for six months. (ii) Akhtar under section 302(b)/34, P.P.C. Sentence to life imprisonment with a compensation of Rs.50,000 payable to the legal heirs of the deceased or in default of payment thereof to undergo S.I. for six months. (iii) Arshad under Section 302(b)/34 PPC. Sentence to life imprisonment with a compensation of Rs.50,000 payable to the legal heirs of the deceased or in default of payment thereof to undergo S.I. for six months.

2. The learned High Court vide the impugned judgment dated 21-2-2007 while acquitting two co-accused confirmed the sentence of death of the appellant and dismissed his appeal.

3. The prosecution story as given in the impugned judgment is as under:-- "

3. The brief facts as narrated in the F.I.R. (Exh.PJ/1.) by Muhammad Rafique (P.W.5) real father of the deceased Tariq Farooq are that he was resident of Chak No.270/ RB Majhiwal and cultivator by profession. His son Tariq Farooq was employed in Punjab Police and posted at Police Station Rail Bazar, Faisalabad. On 10-2-1997 at about 5-30 p.m. his son was present in the village and coming back to hone from Transformer Chowk. In the meanwhile Azmat Ali appellant armed with .222 bore rifle. Arshad and Akhtar appellants empty-handed were present in the street near the house of the complainant. Then his son came near them, Arshad and Akhtar appellants raised a lalkara that Tariq should not go alive, he be finished and taught a lesson for, restraining them to stand in the street. At this Azmat Ali appellant fired with his gun which hit on the left hand and second fire hit in the abdomen on left side due to which his son fell down on the ground. On his hue and cry P.Ws. Saad Ullah and Zafar Iqbal attracted to the spot. On seeing them and other persons of the village, the accused/appellants fled away. They took the inured to Allied Hospital, Faisalabad where the doctor admitted him for treatment and issued MLC No.297 of 1992. Till that day he was in tense condition. He was going to lodge the report to P.S. but Thanadar met him in the way at Adda Lorri MLC was presented. Proceedings were taken. The injured Tariq Farooq expired after one month and four days of the occurrence in the hospital.

4. The motive behind the occurrence was alleged that the appellants used to stand in the street near the house of the complainant and cut jokes to women-folk upon which his son forbade them. Due to this grudge, the appellant committed this occurrence."

4. During trial the prosecution examined four witnesses including the Doctor and Investigating Officer. The accused when examined under section 342, Cr.P.C. denied the prosecution story and attributed false implication to mala fide on the part of police. He, however, did not opt to examine himself in terms of section 340(2), Cr.P.C.

5. Learned counsel for the appellant in support of this appeal submitted that it was an un-witnessed occurrence; that although the time of the occurrence given in the F.I.R. is 5:30 but in likelihood it had happened latter in the evening; that there is a delay of 24 hours in lodging the F.I.R.; that the police station is at distance of 13 kin; that the deceased died in hospital after about 33 days and as per the medical evidence he died of Septicaemia which is reflective of the fact that the death may not have been the result of the injury caused. He contended that the deceased had died on account of the criminal negligence. He lastly submitted that it is not a case of extreme penalty and this Court may reduce/alter the sentence of death/same into life imprisonment in the alternative.

6. Learned counsel for the State defended the impugned judgment by submitting that although the accused is specifically named having armed himself with .222 bore rifle; that he fired twice; that both the eye-witnesses namely, (P.W.5) Muhammad Rafique and (P.W.7) Zafar Iqbal remained consistent on the role attributed to the appellant; that although there was delay in lodging the F.I.R. yet it was duly in the F.I.R. inasmuch as the deceased was in precarious condition and the first anxiety of the complainant being the father of Tariq Farooq deceased to provide him first aid with a view to save his life and there no reason as to why these witnesses falsely deposed against the appellant.

7. In these circumstances, we are of the view that the concurrent findings of guilt and conviction are unexceptionable. However, coining to the question of sentence we note `that although the delay in lodging the F.I.R. was attempted to be explained in the F .I.R. itself. Yet this but the fact that the police station was at a distance of 13 km and deceased Tariq was a Head Constable, the delay of 24 hours was rather strange and the explanation may not be tenable. Another circumstance which would adversely reflect on the prosecution case is the non-recovery of any crime empty from the spot and the fact that Tariq Farooq deceased remained in hospital for more than 33 days and only one attempt was made by (P.W.9) Mushtaq Elahi, SI to record his statement on 12-2-1997 whereas he had remained alive till 16-3-1997. During the interregnum no attempt was made to record the statement.

8. In view of the above, we partly allow the appeal and while upholding the conviction, we convert the sentence of death into life imprisonment. He shall also be entitled to the benefit of section 382-B, Cr.P.C. N.H.Q./A-70/SC Sentence reduced.