2023 PLP 56 (YLRN)

SHEHRAM SARWAR CH., J.

Ashar Abbas alias Ashera (appellant) was tried by the learned Addl. Sessions Judge, Multan in case FIR No. 440 dated 27.06.2016, offence under sections 302, 324, 337-F(i), 337-F(ii), 337-F(v), P.P.C., registered at Police Station Qutabpur District Multan for the murder of Khizar Abbas and launching murderous assault upon the complainant party. Vide judgment dated 31.03.2017 passed by the learned trial court, the appellant has been convicted and sentenced as under:-- A. Under Section 302(b), P.P.C. and sentenced to death with a further direction to pay Rs.5,00,000/- (rupees five lakh only) as compensation under Section 544-A, Code of Criminal Procedure, to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. B. Under Section 337-F(v), P.P.C. for causing injury to Ghulam Mujtaba and sentenced to undergo for three years R.I. as Tazir with Daman of Rs.50,000/-. C. Under section 337-F(ii) for causing injuries to Ghulam Mujtaba and sentenced to undergo for one year R.I. as Tazir with Daman of Rs.20,000/-. D. Under Section 337-F(ii) or causing injuries to Ghulam Mujtaba and sentenced to undergo for one year R.I. as Tazir with Daman of Rs.20,000/-. E. Under Section 337-F(i) for causing injuries to Ghulam Mujtaba and sentenced to undergo for six months R.I. as Tazir with Daman of Rs.10,000/- F. Under Section 337-F(i) for causing injuries to Mst. Sifat Elahi and sentenced to undergo for six months R.I. as Tazir with Daman of Rs.10,000/-. G. Under Section 337-F(i) for causing injuries to Mst. Nighat Elahi and sentenced to undergo for six months R.I. as Tazir with Daman of Rs.10,000/-. H. Under Section 337-F(i) for causing injuries to Muhammad Jamshaid and sentenced to undergo for six months R.I. as Tazir with Daman of Rs.10,000/-. I. Under Section 324, P.P.C. for attempting to cause Qatl-i-amd of Ghulam Mujtaba and sentenced to undergo five years R.I. with fine of Rs.20,000/- and in default thereof to further undergo simple imprisonment for two months. In case of non-payment of Daman, the convict will be kept under simple imprisonment till the realization of Daman. All the above sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.55 of 2017 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Ex.PJ) registered on the written application (Ex.PE) of Ghulam Mujtaba, complainant (PW.7) is that on 26.06.2016 at around 08:30 p.m. (night) he had come to the house of his hamzulf Malik Aslam, where Khizar Abbas, Muhammad Jamshaid, Malik Imam Bakhsh, Mst. Sifat Elahi and Mst. Nighat Bibi were present inside the house. Ashar Abbas alias Ashera (appellant) came there along with one ill-reputed woman namely Shehla. Khizar Abbas objected on arrival of said woman, upon which the appellant became furious and a quarrel took place between them. The appellant took out the churri and started inflicting its blows to Khizar Abbas. When the complainant, Muhammd Jamshaid, Mst. Sifat Elahi and Mst. Nighat Bibi tried to rescue Khizar Abbas, the appellant attacked them with churri. The appellant caused injuries with churri on the right arm of the complainant, right arm of Muhammad Jamshaid, right side of chest of Sifat Elahi and right side of chest of Mst. Nighat Bibi. The appellant while accompanying Shehla decamped from the place of occurrence with churri. Khizar Abbas, who was seriously injured, was attended to by the complainant party and was being shifted to Nishtar Hospital on rescue 1122, but he succumbed to the injuries in the way. Motive behind the occurrence as alleged in the FIR was that Ashar Abbas alias Ashera (appellant) wanted to marry with one Shehla whereas Khizar Abbas (deceased) was a hurdle in the said marriage and the appellant being annoyed committed this incident.

3. We have heard learned counsel for the appellant as well as learned A.P.G. for the State and gone through the record with their able assistance.

4. This unfortunate incident wherein Kizar Abbas was done to death and Ghulam Mujtaba (PW.7), Muhammad Jamshaid (PW.8), Sifat Elahi (PW.10) and Nighat Perveen (PW.11) sustained injuries, as per prosecution, took place on 26.06.2016 at about 08:30 p.m. in the area of Muhammad Pur Ghoota situated within the territorial jurisdiction of Police Station Qutabpur District Multan. The distance between the police station and the place of occurrence is fourteen kilometers. The matter was reported to the police through written application (Exh.PE) of Ghulam Mujtaba, complainant (PW.7) on the same day at 11:50 p.m. Admittedly, there is a delay of about three hours and twenty minutes in reporting the matter to the police but the said delay is not fatal to the prosecution because in the FIR as well as before the learned trial Court it was the case of prosecution that soon after the incident Khizar Abbas (deceased) was being shifted to the hospital in injured condition. Therefore, we hold that matter was reported to the police with due promptitude which rules out the chances of concoction and fabrication on the part of complainant.

5. The ocular account in this case has been furnished before the learned trial court by Ghulam Mujtaba, complainant/ injured (PW.7), Muhammad Jamshaid, injured (PW.8), Imam Bakhsh (PW.9), Sifat Elahi, injured (PW.10) and Nighat. Perveen, injured (PW.11). Admittedly, the occurrence took place in the house of the deceased as well as appellant situated at Muhammad Pur Ghoota, whereas Sifat Elahi (PW.10) and Nighat Perveen (PW.11) are inmates of the house, therefore, their presence in their own house at the time of incident is quite natural and probable. So far as the presence of Muhammad Jamshaid, injured (PW.8) and Imam Bakhsh (PW.9) at the place of occurrence is concerned, they are resident of the same area i.e. Mauza Muhammad Pur Ghoota and as such their presence on the spot at the time of incident cannot be doubted. In the FIR as well as before the learned trial court, the complainant (PW.7) explained his presence at the place of occurrence stating that he went to the house of his Hamzulf Muhammad Aslam to inquire about his health condition as he was not feeling well, therefore, his presence on the spot at the relevant time cannot be considered unnatural and improbable. Moreover, the eye-witnesses i.e. Ghulam Mujtaba, complainant (P.W.7), Muhammad Jamshaid (PW.8), Sifat Elahi (PW.10) and Nighat, Perveen (PW.11) sustained injuries during the incident at the hand of the appellant and their medico legal reports (Ex.PL, Ex.PK, Ex.PC and Ex.PD) are available on the record. The place of occurrence has not been disputed by the defence. The eye-witnesses were subjected to lengthy cross-examination but they remained consistent on material aspects of the case and nothing favourable to the defence could be extracted. The discrepancies in the statements of the PWs pointed out by learned counsel for the appellant, are minor and general in nature, occur in every case when witnesses are cross-examined after a long time of the occurrence as in present case, are not fatal to the prosecution. The witnesses of ocular account have no deep rooted enmity with the appellant to falsely implicate him in this case by letting off the real culprits. In the FIR as well as before the learned trial Court it was the case of prosecution that the appellant was sole perpetrator for causing injuries on the person of the deceased as well as injured persons. Therefore, we hold that the evidence of above eye-witnesses was consistent, truthful and confidence inspiring.

6. In the FIR as well as before the learned trial Court it was the case of prosecution that the appellant gave churri blows to Khizar Abbas (deceased); the appellant also caused injuries with churri on the right arm of the complainant, right arm of Muhammad Jamshaid, right side of chest of Sifat Elahi and right side of chest of Mst. Nighat Bibi. Dr. Muhammad Younis Ansari (PW.5), Dr. Mehreen Bukhari (PW.6) and Dr. Mukhtar Ahmad (PW.12), who conducted postmortem examination on the dead body of the deceased and medical examination of the injured persons, noted the above said injuries on the person of the deceased as well as the injured persons. Therefore, we hold that ocular account is fully supported by medical evidence.

7. Motive behind the occurrence as alleged in the FIR and brought before the learned trial court was to the effect that the appellant wanted to marry with one Shehla whereas Khizar Abbas (deceased) was a hurdle in the said marriage. No cogent/convincing evidence qua motive part of incident was produced by the prosecution during the trial. Moreover, no independent witness qua motive was joined by police in investigation. In the FIR as well as before learned trial court, it was the case of the prosecution that the appellant came in the house along with one ill-reputed woman namely Shehla and on objection of deceased on arrival of said woman, a quarrel took place between the appellant and deceased and being annoyed the appellant committed this incident. After considering over all circumstances of the case, it can safely be concluded that there was no premeditation on the part of the appellant and the occurrence took place at the spur of moment because of arrival of one Shehla with the appellant. Therefore, we hold that the prosecution has failed to prove motive against the appellant.

8. So far as the alleged recovery of churri (P.5) at the instance of the appellant is concerned, the same are immaterial because the occurrence allegedly took place on 26.06.2016, the appellant was arrested in this case on 01.07.2016 and got recovered the alleged churri on 08.07.2016 whereas the same was received in the office of Punjab Forensic Science Agency on 15.07.2016 i.e. about nineteen days after the incident, therefore, there was remote possibility of blood being present on the churri.

9. Now we will discuss the version of the appellant which was taken by him in his statement recorded under Section 342, Cr.P.C. The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor produce any witness in his defence. Therefore, we are of the view that the appellant has not been able to substantiate his version, which is hereby discarded out-rightly.

10. From the above circumstances, we are of the considered view that even if the evidence of motive and recovery of churri (P.5) are excluded from consideration, there is sufficient incriminating evidence on the record against him in the form of straight-forward and confidence inspiring ocular account furnished by Ghulam Mujtaba, complainant/injured (PW.7), Muhammad Jamshaid, injured (PW.8), Imam Bakhsh (PW.9), Sifat Elahi, injured (PW.10) and Nighat Perveen, injured (PW.11) fully supported by the medical evidence furnished by Dr. Muhammad Younis Ansari (PW.5), Dr. Mehreen Bukhari (PW.6) and Dr. Mukhtar Ahmad (PW.12) to maintain his conviction under Section 302(b) which is accordingly maintained. However, it is not a case of capital punishment because of the reasons:- (i) motive as set up by the prosecution has not been believed by us and (ii) recovery of churri (P.5) at the instance of the appellant is inconsequential.

11. The above said facts lead us to the conclusion that there are sufficient extenuating circumstances, on the basis of which the appellant could not be made liable to the maximum punishment provided under Section 302(b), P.P.C., rather the ends of justice would be met, if his death sentence is converted into imprisonment for life. Reliance is placed on case law titled as "Mir Muhammad alias Miro v. The State" (2009 SCMR 1188) and "Zafar Iqbal and others v. The State" (2014 SCMR 1227). Therefore, while maintaining the conviction under Section 302(b), P.P.C., we alter the sentence of the appellant from death to imprisonment for life. The convictions and sentences under Sections 324, 337-F(i) 337-F(ii) and 337-F(v), P.P.C. and the amount of compensation, fine as well as Daman and the punishments in default whereof as ordered by the learned trial court are also maintained. All the sentences shall run concurrently. Benefit of Section 382-B, Code of Criminal Procedure, is extended to the appellant. In view of the above, the appeal in hand is dismissed with the above modification in the quantum of sentence.

12. Murder Reference No.55 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Ashar Abbas alias Ashera (convict) is NOT CONFIRMED. JK/A-102/L Order accordingly.