1999 PLP 562 (MLD)

ASIF SAEED KHAN KHOSA, J.

Asghar Ali son of Fazal Din, aged 22 years, was convicted by the learned Additional Sessions Judge, Faisalabad vide judgment dated 15-4-1993 and was sentenced to death as Ta'zir. It was further ordered that he shall pay a sum of Rs.10,000 to the theirs of Mehtab Din deceased by way of compensation or in default thereof to suffer six months R.I. Asghar Ali accused has challenged his conviction and sentence before this Court through Criminal Appeal No.280 of 1993 which has been heard by us along with Murder Reference No.144 of 1993 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters through the present consolidated judgment.

2. The prosecution case unfolded in the F.I.R. was that after offering their Fajr prayer in the morning of 7-7-1991 Noor Muhammad complainant, Mehtab Din, Muhammad Sharif and Muhammad Ahmad P.Ws. had emerged from the village mosque at about 5.00 a.m. Mehtab Din was walking ahead of others when, only a few steps away from the said mosque, Asghar Ali accused approached Mehtab Din and told him that he (the accused) was a heroin addict and that Mehtab Din should give him Rs.50 in the name of God Almighty so that he (the accused) could purchase heroin in order to save his life. In response to that Mehtab Din told the accused that he (Mehtab Din) was a religious person who used to offer his prayers and, therefore, he could not commit a sin by giving the accused money for that purpose. Mehtab Din further told the accused that he could not care less if the accused died. Upon that Asghar Ali accused, who was armed with a wooden Sota, suddenly flew into rage and within the view of the witnesses started giving forceful blows with his Sota on the head of Mehtab Din. Thereafter, Asghar Ali accused gave further Sota blows to Mehtab Din at various parts of the latter's body. Thereupon all the P.Ws. rushed towards Mehtab Din and the accused and apprehended the accused alongwith his Sota. Mehtab Din succumbed td those serious injuries at the spot. Leaving the dead body at that place Noor Muhammad complainant proceeded to report the matter before the local police when he met Sadiq Ali, SI/SHO (P.W.9) at mauza Sadhar and made a statement (Exh.PD) before him in respect of the occurrence. Subsequently a formal F.I.R. No. 225 (Exh.PD) was recorded at Police Station Thikriwala, District Faisalabad by Zafarullah, Moharrir Head Constable (P.W.2) at 7.50 a.m. on the same day for an offence under section 302, P.P.C.

3. After recording the statement of Noor Muhammad complainant (P.W.8) Sadiq Ali, SI/SHO (P.W.9) took the investigation of this case in his hands, arrested Asghar Ali accused and secured Sota (P.4) from his possession vide recovery memo Exh.PG. On the same day he proceeded to the place of occurrence, recovered blood-stained earth vide recovery memo. Exh.PH, prepared the injury statement (Exh.PB) and inquest report (Exh.PC) regarding the dead body of Mehtab Din and despatched the dead body to the mortuary for autopsy. After the post-mortem examination he also took into possession the last-worn clothes of the deceased vide recovery memo. Exh.PF of the place of occurrence, Subsequently he got prepared a formal site-plan (Exh.PE) of the place of occurrence, completed his investigation of this case and submitted a challan in that respect.

4. Dr. Aziz Ahmad (P. W .1) had conducted the post-mortem examination , (Exh. PA) on the dead body Mehtab Din at 2.00 P.M. on 7-7-1991. He found six injuries on the person of the deceased all of which had been caused by a blunt-weapon. In his opinion injuries Nos. l, 2, 3 and 4 were sufficient to cause death in the ordinary course of nature collectively and individually. The cause of death was given to be haemorrhage and shock due to the said injuries. It was further opined by him that the probable time that had elapsed between the injuries and death was a few minutes and that between the death and post?-mortem examination was about seven hours.

5. At the commencement of the trial the learned trial Court framed the charge under section 302, P.P.C against Asghar Ali accused on 28-3-1993. The accused pleaded not guilty and claimed a trial.

6. During the trial the prosecution produced as many as nine witnesses in support of its case against Asghar Ali accused. Dr. Aziz Ahmad (P.W.1) provided the medical evidence in this case. Zafarullah Head Constable had recorded formal F.I.R in this case and had kept a sealed parcel blood-stained earth in the Mal Khana of the Police Station for safe Aurangzeb, Draftsman (P.W.3) had prepared the formal site-plan of the place of occurrence. Mukhtar Ahmad (P.W.4) had identified the dead body of Mehtab Din at the time of autopsy. Muhammad Ayyub, constable (P.W.5) had taken a sealed parcel containing blood-stained earth to the office of the Chemical Examiner, Lahore. Habibullah, Constable (P.W.6) had escorted the dead body of Mehtab Din to the mortuary for its post-mortem examination. He had also produced the last-worn clothes of the deceased before the Investigating Officer after the post-mortem examination. The ocular account in this case had been furnished by Muhammad Ahmad (P.W.7) and Noor Muhammad complainant (P,W.8). Both of them had also deposed about apprehending the accused person at the spot and his arrest by the Investigating Officer as well as recovery of Sota from him. Sadiq Ali, SI/SHO (P.W.9) deposed about recording of the statement (Exh. PD) Noor Muhammad complainant (P.W. 8) and also about various steps taken by him during the investigation of this case.

7. In his statement recorded under section 342, Cr.P.C. Asghar Ali accused denied all the allegations of fact levelled against him and in answer to a question as to why he had been implicated in this case he stated as follows:- "I was a heroin addict. I have been falsely implicated in this blind murder. The P.Ws. have made false statements against me.' He, however, opted not to make any statement on oath under section 340(2), Cr.P.C. and also did not produce any witness in his defence.

8. At the conclusion of the trial, as observed above, the learned Additional Sessions Judge, Faisalabad, vide judgment dated 15-4-1993 convicted Asghar Ali accused for an offence under section 302, P.P.C. and to pass a sentence of death against him as Ta' zir. It was further ordered that he was to pay a sum of Rs.10,000 to the heirs of Mehtab Din deceased by way of compensation or in default thereof he shall suffer R.I. for six months. Hence, the present appeal as well as the Murder Reference.

9. We have heard the learned counsel for the appellant as well as the State and have also gone through the entire record of this case. .

10. The learned counsel for the appellant has not seriously contested the conviction under section 302, P.P.C. recorded against the appellant but has instead pressed for reduction of the sentence passed against Asghar Ali appellant. He has argued that there was no background of enmity or ill-will between the appellant and the deceased and that the present occurrence had taken place all of a sudden when the appellant flew into a fit of rage at a time when he was suffering from a desperate urge for heroin. He has, therefore, maintained that in the absence of any motive or premeditation the sentence of death passed against the appellant was unwarranted. As against that the learned counsel for the State has maintained that as long as the conviction of the appellant was not being challenged he was not in 'any position to say anything on the question of sentence which lies exclusively within the discretion of the Court.

11. We have no hesitation in observing that the prosecution had proved its case against the appellant beyond reasonable doubt. The appellant had been caught red-handed at the spot and the eye-witnesses produced by the prosecution had no animosity against the appellant so as to implicate him falsely on a capital charge. The recovery of Sota from the appellant immediately after the occurrence and the medical evidence produced by the prosecution lend ample corroboration and support to the statements of these eye-witnesses. Therefore, we feel that the learned counsel for the appellant is quite justified in not seriously challenging the conviction of the appellant recorded by the learned trial Court.

12. We have given our anxious consideration to the question of sentence to be passed against the appellant. We have noticed that the appellant had nursed no motive against the deceased and there was no background of ill-will or animosity between the appellant and the deceased. Even according to the prosecution itself there was no premeditation on the part of the appellant and that the occurrence in question took place when the appellant flew into a fit of rage at the spur of the moment when he was feeling a desperate urge for heroin. It can well be imagined that the appellant, who was admittedly a heroin-addict, must not be in a normal state of mind at the time when he reacted so violently and unusually upon a refusal by the deceased to lend the appellant a sum of Rs.50. Even the, Investigating Officer has deposed that during his interrogation of the appellant soon after the occurrence he found the appellant to be incoherent and disoriented. In this view of the matter, keeping in view the state of mind of the appellant at the time of occurrence and the lack of premeditation on his part, we do not consider this to be a fit case to pass a sentence of death against the appellant.

13. For what has been observed above this appeal is dismissed to the extent of the appellant's conviction under section 302, P.P.C. but the sentence of death passed against the appellant is reduced to imprisonment for life under section 302(b), P.P.C. The order passed by the learned trial Court in respect of the compensation payable by the appellant to the heirs of Mehtab Din deceased is maintained with the modification that in default of payment of that compensation he shall suffer six months S.I. instead of six months R.I. The benefit under section 382-B, Cr.P.C. shall also be extended to the appellant. As the sentence of death passed against the appellant has been converted by us into imprisonment for life, therefore, Murder Reference No.144 of 1993 has to be answered in the negative. Death sentence Not Confirmed. N.H.Q/A.278/L/????????????????????????????????????????????????????????????????????????????????? Sentence reduced.