2001 SCMR 1363 (PLP)

Ch. Muhammad Akram, Advocate Supreme Court for the State. Date of hearing: 21st February, 2001.

2. The appellant was tried alongwith his brother Muhammad Asif alias Accha, father Muhammad Sadiq and three others, namely, Muhammad Shaf, Mushtaq Ahmed and Muhammad Sharif by a learned Additional Sessions Judge, Okara for offences under sections 302/324/109/34 P.P.C. arising from the murder of Altaf Hussain and murderous assault on his brother Muhammad Hassan. The learned trial Court, vide judgment dated 5‑6‑1993, acquitted Muhammad Sadiq, Muhammad Shati and Mushtaq Ahmed and convicted the appellant, Muhammad Asif and Muhammad Sharif under sections 302/34, P.P.C. and while the former was awarded sentence of death, Muhammad Asif and Muhammad Sharif were sentenced to imprisonment for life with benefit of section 382‑B, Cr.P.C. The appeal tiled by the appellant and his co‑convicts was disposed of by a learned Division Bench of, the Lahore High Court, vide judgment dated 17‑6‑1999, in the manner that the conviction of the appellant under section 302, P.P.C. was maintained and the sentence of death awarded to him was confirmed and his brother Muhammad Asi.f and Muhammad Sharif were given the benefit of doubt and acquitted.

3. Leave to appeal was granted to the appellant to reappraise the evidence on record for safe administration of criminal justice.

4. The occurrence had taken place on 4‑6‑1991 at about 10/11 a.m. and the F.I.R. was dodged at Police Station Saddar, Okara at 12‑30 a.m. by Muhammad Hassan, brother of the deceased. The allegations made in the F.I.R. were to the effect that sometime in the year 1985 wife of Sadiq accused (appellant's mother) was murdered for which the deceased and the complainant alongwith six other persons were charged. The accused nominated in that case were acquitted owing to composition but the legal heirs of the deceased did not forget the incident and bore grudge in them hearts against the complainant party. The complainant alongwith his brother Altaf Hussain deceased were taking rest under the shadow of trees on the Western Watt of Killa No.12 after working in their fields. Complainant's brother Abbas and Muhammad Bashir were grazing cattle at a distance o1 about four Kanals. In the meantime three persons, namely, Noor Elahi alias Kala, armed with a double‑barrel shot‑gun, Muhammad Asif alias Accha, armed with a .12 bore shot‑gun, and Muhammad Sharif, armed with a carbine, came there on a motorcycle. Noor Elahi on seeing Altaf Hussain exclaimed that he will avenge the murder of his mother. The Lalkara was followed by a shot fired by Muhammad Sharif which hit Altaf Hussain on his right thigh. Muhammad Asif fired a shot which hit Altaf Hussain on his bicep. Noor Elahi then fired on Altaf Hussain hitting him on the right side of his chest. The complainant tried to run away but sustained an injury on his right arm as a result of the shot fired by Noor Elahi. Thereafter, the assailants bolted away from the spot. Altaf Hussain succumbed to his injuries while he was being taken 'to the village on a cot. On the way Muhammad Ali and Mohabat Ali informed the complainant that a short while ago they were present in the Baithak of Sadiq Malah in Chak No.22/GD and within their view Sadiq Malah, Muhammad Shafi and Mushtaq Ahmed had supplied arms and ammunition to the assailants and directed them to take revenge of the murder of their mother/aunt by killing Altaf Hussain and should not come back without completing the mission.

5. The appellant was arrested on 3‑7‑1991 and on his pointation a .12 bore DB shot‑gun alongwith 8 live cartridges was recovered from his residential Kotha which was sent to the Fire‑Arms Expert who returned a positive report.

6. At the trial the prosecution examined as many as nineteen witnesses and the accused in their statements under section 342, Cr.P.C. denied the accusation levelled against them and professed innocence. However, no evidence was produced in defence.

7. Learned counsel for the appellant referred to the statement of Muhammad Khalil (P.W.5) to contend that the F.I.R. was recorded on the spot after preliminary investigation. Criticising the ocular evidence he contended that the occurrence was unwitnessed and the eye‑witnesses were trumped‑up; the injury on the person of the complainant was caused by a friendly hand in order to establish his presence on the spot; had the complainant been present on the spot at the time of occurrence and sustained a fire‑arm injury the police would have prepared his injury sheet and he would have also been medically examined on the very day of occurrence but he was medically examined after six days of the occurrence and his injury sheet was not prepared at all; all the three eye‑witnesses being closely related to the deceased and inimically disposed towards the appellant were interested witnesses; the ocular evidence was belied by the medical evidence vis‑a‑vis the number of shots tired by the accused; all the eye‑witnesses were one on the point that the shot fired by the appellant had hit the deceased on his right flank whereas it was specifically alleged in the F.I.R. that the shot fired by him had hit the deceased on the right side of his chest and the testimony of the eye‑witnesses having been disbelieved qua majority of the accused was not sustainable against the appellant. He also contended that the corroborative evidence had not come from an unimpeachable source as the recovery of the incriminating articles was not only doubtful but the shotgun and the crime empties etc. were also not despatched to the Fire‑Arms Expert promptly. It was lastly contended that in view of the motive set up in the F. I. R. and the undisputed fact standing out prominently from the prosecution evidence that the appellant had avenged the murder of his mother under the influence of his father and elder brother the sentence of death awarded to him was harsh.

8. Learned counsel for the State, on the other hand, supported the impugned judgment by reiterating the reasons recorded therein. As to sentence, he contended with vehemence that death is normal sentence for murder and there was no mitigating circumstance for awarding lesser sentence.

9. The prosecution case against the appellant stands proved beyond any reasonable doubt inasmuch as the ocular evidence qua him is worthy of credence having been corroborated by the established motive and independent evidence of unimpeachable integrity in the shape of recovery of incriminating articles and positive report of the Fire‑Arms Expert. The D.B. shotgun recovered on the pointation of the appellant was not retained for a long period and the crime empties were sent to Fire‑Arms Expert much before its recovery. The evidence of the complainant cannot be brushed aside E merely on the ground of his belated medical examination. The injury sustained by him finds mention in the promptly lodged F.I.R. and its duration worked out by Dr. Muhammad Saeed Sayal (P.W.2) coincides with the time of occurrence. In any case his presence on the spot at the time of occurrence can be conveniently and safely inferred from the promptly lodged F.I.R. The conflict between the medical evidence and the ocular evidence highlighted by the learned counsel for the appellant cannot be pressed into service against the appellant as it vanished after the acquittal of Muhammad Asif and Muhammad Sharif. The improvement with regard to the point of impact of the tiring made by the appellant is too trivial to destroy the prosecution case. As regards the contention that the testimony of the eye‑witnesses having been disbelieved qua majority of the accused was not sustainable against the appellant it would be enough to say that it negates the well‑settled principle of evaluation of evidence i.e. 'sifting grain from chaff' which has replaced the discarded principle 'Falsus in uno falsus in omnibus'.

10. Adverting to the question of sentence we find that a case for taking a lenient view in the matter of sentence is indeed made out. It is evident from the prosecution ‑ evidence and the statement of the appellant under section 342, Cr.P.C. that the appellant's mother was murdered in 1985 and the deceased Altaf Hussain, the complainant and a few others were charged for enacting the tragedy but the matter was patched up in due course. During those days the appellant was about 14 years of age and on the day of occurrence he was about 20 years of age. The prosecution evidence further makes it manifest that the appellant was obsessed with the idea of avenging the murder of his mother, which is not a rare phenomenon, and his obsession was aggravated by the influence of his father and elder brother Muhammad Asif who was acquitted by the High Court. It is thus not a fit case for imposition of extreme penalty. In this context the fo11owing excerpt from Ajun Shah v. The State PLD 1967 SC 185 may be reproduced advantageously: "...Since he was a boy his mind had become obsessed with one thought to do away with the alleged murderer of his father and brother. Such feeling was gaining intensity from day to day and when he saw the deceased in a tonga he lost his balance of mind. The time, place and nature of the attack appear to confirm this. A man is after all a creature of his environment. His action therefore, must be judged in the background of the society to which he belongs. Though he may not be entitled to rely on the doctrine of provocation, still the above circumstances may be taken into account for not imposing the extreme penalty. We would, however, like to make it clear that we. are not suggesting for a moment that private revenge can be regarded as a mitigating circumstance. What we are really pointing out is that the question of sentence in each case muse depend on the facts of the case and that in this particular case the criminality is not of a kind which should be visited with extreme penalty. " In that case the appellant was 8 years old when his father and brother were murdered and at the time of taking revenge he was 28 years of age and the sentence of death awarded to him was reduced to transportation for life. The view was followed in number of other cases including Pervaiz v. The State 1984 SCMR 848 and Muhammad Aslam v. The State PLD 1985 SC

257. For the reasons aforesaid, this appeal is partly accepted and while p the conviction of the appellant under section 302, P.P.C. is upheld, the sentence of death awarded to him is altered to imprisonment for life with benefit of section 382‑B, Cr.P.C. The appellant is also directed to pay a sum of Rs.1,00,000 to the legal heirs of the deceased as compensation within the contemplation of section 544‑A, Cr.P.C. or suffer six months' further S.I. N.H.Q./N‑41 /S Sentence reduced.