2003 P Cr (PLP)

KHAWAJA MUHAMMAD SHARIF, J.

This criminal appeal is directed against the judgment of Additional Sessions Judge, Ferozewala, dated 23-6-1997 whereby he convicted Malook Hussain accused/appellant under section 302, P.P.C. and sentenced him to death sentence alongwith a fine of Rs.30,000 or in default in payment of fine he was ordered to further undergo R.I. for six months whereas the accused/Muhammad Ashiq, Muhammad Khalid and Muhammad Younas were acquitted of the charge by giving them the benefit of doubt.

2. The facts briefly for the disposal of this appeal are that Muhammad Ashiq, Malook Hussain, Muhammad Khalid and Muhammad Younas formed an Onlawful assembly and in the prosecution of their common object they committed the murder of Muhammad Iqbal and made murderous assault on Munir Ahmad, Muhammad Yaqub and Manzoor Ahmad P.Ws. On the fateful day the complainant Manzoor Ahmad was sitting in his Haveli situated in the village Marh Bhangwan, Police Station Sharqpur Sharif when at 7-00 a.m. he was told that the aforementioned accused had uprooted the Pippal tree from the land for which civil litigation was pending and status quo was in operation in the civil suit. Accordingly complainant alongwith Muhammad Iqbal went to the Haveli of Muhammad Yaqub where Munir Ahmad was also present. They all decided to go to the scene to know about the real fact. When they reached near the field of Bashir son of Janda near Dek Nullah, Malook Hussain armed with rifle, Ashiq Hussain armed with .12 bore gun, Khalid armed with rifle, Riaz armed with rifle and Younus armed with .12 bore gun emerged at the scene. Muhammad Ashiq raised Lalkara that they be taught a lesson for murdering Riaz upon which Malook Hussain fired upon Muhammad Iqbal hitting on the left side of his chest. On receiving the injury Muhammad Iqbal fell down on the ground. The complainant party rushed towards the village to save their lives. The accused persons ran away from the spot after seeing other persons who were attracted by the firing. Regarding this occurrence F.I.R. No.159, dated 16-6-1993 under sections 302/324/148/149, P.P.C. was recorded at Police Station Sharaqpur Sharif. Muhammad Sadiq, S.-I. (P.W.11) conducted investigation. He sent statement Exh.P.F. of the complainant Manzoor Ahmad to police station and he himself proceeded to the place of occurrence where he prepared the site plan, rough map Exh. P.1, inquest report EXh. P.2 and sent the dead body of Muhammad Iqbal deceased for post-mortem examination through Baqar Hussain and Muhammad Ranjha constables. After the transfer of Muhammad Sadiq, Investigating Officer investigation was transferred to Nazir Ahmad, Inspector. On 22-7-1993 Malook Hussain produced rifle P.1 which was taken into possession vide recovery memo. Exh.P.A. On 22-7-1993 he arrested Muhammad Younas, Muhammad Ashiq, Malook Hussain, Muhammad Khalid and Muhammad Riaz (since dead. On the pointation of Muhammad Ashiq gun P.2 was recovered and was taken into possession vide memo. Exh.P.B. Rifle P.3 was recovered on the pointation of Khalid accused and was taken into possession through memo. Exh.P.B. On 30-7-1993 rifle P.4 was recovered on the pointation of Riaz. On 2-8-1993 challan was submitted in the Court.

3. On 17-6-1993 at 8-00 a.m. Dr. Abdul Majid Mirza conducted post-mortem examination upon the dead body of the deceased and found the following injuries:- (1) A fire-arm wound of entry 5 c.m. in diameter with collar of abrasion on outer and above sides on front of left chest near mid line 6 c.m. below supra sternal notch, making an exit wound 1 c.m. x 8 c.m. on back of right chest mid part 9 c.m. from mid line. According to opinion of the doctor death occurred due to injury which was sufficient to cause death in the ordinary course of nature. Probable time between death and injury was immediate. On the completion of the investigation challan initially was submitted in the Court of Ilaqa Magistrate, Ferozewala who sent up the same to the Court of Session. Upon receipt of challan charge was framed under sections 302/149, P.P.C. and 324/149, P.P.C. to which the accused pleaded not guilty and claimed to face trial. The prosecution led evidence and exhausted 11 witnesses. The learned D.D.A. tendered in evidence the report of the Chemical Examiner Exh.P.M. whereas Zulfiqar Ali, Muhammad Yaqub, Muhammad Aslam, Munawar Ahmad, constables were given up as unnecessary.

4. Bashir Ahmad P.W.1, Munir Ahmed P.W.2 Dr. Abdul Majid Mirza P.W.3 Manzoor Ahmad complainant (P.W.4) Munir Ahmed son of Nawab Din (P.W.5) Muhammad Ranjha (P.W.6) Baqar Hussain (P.W.7) Abdul Majeed (P.W.8) Nazir Ahmed Inspector (P.W.9) Zafar Ahmad Patwari (P.W.10) and Muhammad Sadiq S.-I (Investigating Officer) were produced in support of prosecution case.

5. At the conclusion of the prosecution evidence the statements of accused under section 342, Cr.P.C. were recorded. The accused denied the, allegation and attributed the case to enmity. The accused refused to produce any defence evidence and also refused to make statements under section 340(2), Cr.P.C. After the completion of the trial the accused were convicted and sentenced as mentioned above. Hence this appeal.

6. Learned counsel for the appellant in support of this petition submits that in all there were 5 accused including the appellant. Riaz had died before the trial while three of them namely Muhammad Ashiq, Muhammad Khalid and Muhammad Younas were acquitted. Manzoor Ahmad complainant and Munir Ahmad P.W. are closely related to deceased. Manzoor Ahmad was also uncle of the deceased and father-in -law of Munir Ahmad P.W. while Muhammad Yaqub was also an interested witness. In this way it is evident that no independent witness was produced. There was a long-standing enmity between the parties. No crime-empty was recovered from the spot. There was no independent corroboration of the statements of these interested and inimical witnesses. He submits that since all the eye-witnesses were involved in the earlier murder case of Riaz in which Ashiq acquitted accused was complainant and Younus was injured witness. Malook Hussain appellant is the real brother of the complainant in the earlier F.I.R. Learned counsel submits that the land in dispute was in possession and under cultivation of the appellant party and this fact has been proved by Patwari (P.W.10). He further submits that Muhammad Sadiq P.W.11 (Investigating Officer) had stated that according to his knowledge during the investigation it came to light that for the purpose of taking possession of the land in dispute of Muhammad Ashiq the firing started at night till next day and according to secret information the firing was adopted by the complainant party for taking possession of the suit property. Learned counsel further adds that this is a case of single shot and the fire was not repeated. He has also stated about the compromise which was filed by Mian Ghulam Rasul, Advocate on behalf of the complainant party and application alongwith affidavits of Muhammad Sadiq father of the deceased while there is affidavit of Mst. Kaneez Bibi mother of the deceased and widow of the deceased to the effect that they had entered into a compromise and had pardoned the appellant in the name of Allah Almighty. He further submits that an amount of Rs.1,36,300 was also deposited in Habib Bank on 4-8-1999 in the name of Nisar Ahmad and Bilal Ahmad minor sons of the deceased, but unfortunately later on the complainant party backed out from the said compromise. He further submits that he has in his possession certified copies of the documents which show that in the earlier murder case Muhammad Ashiq was complainant of F.I.R. No.84 dated 12-4-1993, in which the accused person from the side of the complainant party was acquitted. He submits that this compromise took place on 4-1-1999 while application for compromise was submitted on 5-7-1999. Learned counsel submits that this is also a mitigating circumstance in favour of the appellant. He submits that if his submissions on merits do not find favour with this Court for the acquittal of the present appellant then the above said facts do constitute mitigating circumstances for the lesser sentence.

7. On the other hand learned State Counsel submits that it was a broad daylight occurrence. The appellant caused fatal injury on the person of the deceased. She supports the judgment of the trial Court.

8. We have heard counsel for the parties. The motive is double edged weapon. The murder of Iqbal was committed in order to take revenge of the murder of Muhammad Riaz who was earlier murdered by the complainant party in this case. In such-like cases no person from the vicinity appears as eye-witness because no body is ready to jump into the fire of others. The occurrence took place in the broad daylight at 9-00 a.m. The matter was reported on the same day at 12-30 p.m. There was no question of false implication. The accused who have been acquitted by the trial Court was for the reason that no injury was attributed to them. The learned trial Court was right in acquitting them. The ocular account in this case is fully corroborated by medial evidence. We are of the opinion that there are some mitigating circumstances in favour of the appellant and this is the reason that Legislature has provided two sentences under section 302(b), P.P.C. i.e. death sentence and life imprisonment. This is the case in which death sentence is not called for and this is a case of life imprisonment for the following reasons:-- "That this is a case of single shot, fire was not repeated Reliance is placed on PLD 1996 SC

122. The second more important fact in favour of the appellant is that there was compromise filed before this Court by Mian Ghulam Rasul. Advocate on 5-7-1999. We have gone through the said compromise, affidavits of the legal heirs of the deceased. Then there is original receipt dated 4-1-1999 of Habib Bank through which Rs.1,36,300 were deposited in the name of Nisar Ahmad and Bilal Ahmad minor sons of the deceased. Unfortunately for the reasons best known to the complainant party in this case, after filing of the compromise they did not appear before this Court, so compromise could not be completed. Another factor which goes in favour of the appellant for lesser sentence is the statement of Zafar Ahmad Patwari (P. W.10) who had admitted that the land in dispute was in possession of the present appellant party. Then there is a statement of Muhammad Sadiq, S.-I. (Investigating Officer) which he made during cross-examination is as under: When I reached the place of occurrence numerous persons were present there. The statements which were recorded by me are on the file of the P.Ws. and in such-like circumstances the vicinity people do not go for recording their statements usually so they do not want to create any enmity. Except the P. Ws. no other witness was produced before me by the complainant who otherwise supported his version. I have also investigated the matter secretly and interrogated the local persons. It has come to my knowledge during investigation that for the purpose of taking possession of the land in dispute of Ashiq accused the firing has started in the night and it continued till 8-00 a.m. till the next day and according to my secret investigation I came to know that the firing was adopted by the complainant party for taking possession over the suit property."

9. After hearing learned counsel for the parties and going through the evidence recorded by the trial Court and discussion which we have made in the earlier paragraphs we maintain the conviction of the appellant under section 302(b), P.P.C. but convert the same to life imprisonment with benefit of section 382-B, Cr.P.C. Murder. Reference is replied in negative. Death sentence is not confirmed. We have gone through the impugned judgment of the learned trial Court. The fine of the appellant is not permissible under the law and more over he has not awarded any compensation as required under section 544-A, Cr.P.C. which is mandatory provision. We set aside the fine awarded to the present appellant and direct that the amount of Rs.1,36,300 which has already been deposited will be received as compensation by the legal in heirs of the deceased. Murder reference and criminal appeal are disposed of. H.B.T./M-1821/L Order accordingly.