2011 SCMR 664 (PLP)

IJAZ-UL-HASSAN, J.

This Criminal Appeal bearing No.304 of 2000 with leave of the Court, is directed against the judgment dated 20-4-1999 passed by a Division Bench of the Lahore High Court, Lahore dismissing, Criminal Appeal No. 628 of 1994, filed by appellants challenging the judgment dated 22-4-1993 handed down by Special Judge, Speedy Trials, Lahore, whereby appellants were convicted and sentenced to death on three counts, under section 302(b), P.P.C. and to pay Rs.50,000 as fine each, or in default thereof to undergo two years' R.I. The amount of fine, on realization, was directed to be paid to legal heirs of the deceased as compensation under section 544-A, Cr.P.C.

2. The prosecution story as reflected in the in brief is, that on the fateful day i.e. 28-8-1991 at about 5-30 a.m. Mubarik Ali and his sons Muhammad Yousaf and Muhammad Ajmal, deceased left the village to attend the hearing in their bail matter fixed in the Court of Additional Sessions Judge, Nankana Sahib. Complainant Sooba, Muhammad Hussain and Nasir, P.Ws. were following them at a distance of 30/35 karms. The victims boarded the wagon at bus stop of Q.B Link Canal of Miraj Colony, at about 5-30 or 5-45 a.m. In the meanwhile, eight persons including the appellants, duly armed emerged from the nearby `khokhas'. Khalid Mehmood and his brother Abid Hussain alias Mehaba were armed with rifle and gun respectively and Zahid alias Javed Iqbal was carrying a carbine on his person. The appellants entered in the wagon. The driver, conductor and passengers of the wagon, came out of the wagon and ran away due to fear. The accused started firing at the deceased, as a result of which Mubarak and Muhammad Yousaf died there and then and Muhammad Ajmal succumbed to the injuries in Civil Hospital Nankana Sahib. After accomplishing the mission accused made good their escape. The motive leading to the tragedy, was stated to be previous enmity between the two groups. Leaving Muhammad Hussain to guard the dead bodies, P.W. Sooba went to Police Station Mandi Faizabad, District Sheikhupura and lodged the F.I.R. (Exh.PJ/1) which was recorded by P.W. Muhammad Yaqoob S.I.

3. The Investigating Officer on reaching the spot, took into possession Wagon bearing registration No.FDL-3611 (Exh.P/12) vide memo. (Exh.PN), blood stained piece of cover of the seat and sealed the same into parcel vide memo. Exh.PM, two pieces of blood stained 'rubber' and blood-stained piece of plastic vide memos. (Exh.PM/1) and (Exh.PM/2), respectively. He also took into possession four empty cartridges (Exh.P.13/A/1-4) and one empty of .7 mm (Exh.P/14) from inside the wagon vide memo, (Exh.PN). He recorded the statements of P.Ws. Khalid Mehmood and Zahid alias Javed Iqbal appellants were arrested on 29-8-1991 by Muhammad Ashiq ASI Police Station Sharqpur Sharif. He also got recovered .12 bore gun (Exh.P.13) from Zahid appellant on the same day along with 27 live cartridges (P.1'4/1-27) vide memo. (Exh.PP). He got recovered .7 mm rifle P.15 along with 15 live bullets (Exh.P.16/1-15) vide memo.' (Exh.P.R.) According to the report of Fire-Ann Expert (Exh.PAA), one empty cartridge matched with the gun recovered from Zahid alias Javaid Igbal appellant while one of the empties of .7 mm rifle matched with .7 nun rifle recovered from Khalid Mehmood appellant. However, no weapon of offence was recovered from Abid Hussain alias Mehaba appellant.

4. Nine prosecution witnesses were examined at the trial and at conclusion of the prosecution evidence the statements of the accused were recorded under section 342, Cr.P.C. who denied the prosecution allegations and claimed to have been falsely implicated on account of previous enmity. The plea of alibi was also taken by them. However, neither any of the accused opted to make a statement on oath in terms of section 340(2), Cr.P.C. nor any one of them produced any evidence in defence.

5. Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, appearing , on behalf of appellants, after having taken us through the prosecution evidence, statement of the accused recorded under section 342, Cr.P.C. and other material available on the record, contended that statement of C.W. Muhammad Javed, conductor of the wagon, represent an entirely different picture, totally negating the prosecution version, which tends to suggest that material facts have been concealed and the occurrence had not taken place in the manner as alleged. The learned counsel reiterated that Sooba complainant and Nasir Ahmad P.Ws. were closely related to the deceased therefore, their testimony should not have been accepted without corroboration from some independent and unimpeachable source which was not forthcoming; that the eye-witnesses of the occurrence had not been able to provide plausible explanation for their presence on the place of occurrence; that the medical evidence was not in accord with the eye-witness account; that the empties recovered from the spot were not immediately sent to the Fire-Arm Expert but later on sent along with crime weapons; that motive setup in the F.I.R. has not been satisfactorily established and that the prosecution evidence qua acquitted co-accused has not been believed whereas the same set of evidence has been utilized and made basis of convictions of the appellants. Concluding the arguments, learned counsel submitted that prosecution case is full of glaring defects, legal infirmities and material irregularities. The impugned judgment has not been recorded after careful and proper consideration of the attendant relevant facts and circumstances, therefore, the same has to be reversed.

6. Syed Ali Imran, learned Deputy Prosecutor-General, Punjab, on the other hand, opposed the arguments of learned counsel for the appellants and supported the impugned judgment maintaining that findings of conviction and sentence of the appellants were recorded concurrently by the High Court as well as by the trial Court after appraisal of the evidence', warranting no interference by this Court.

7. We have heard at length the arguments of learned counsel for the parties. We have also perused the record in minute details with their assistance.

8. The crime in question is alleged to have been taken place on 28-8-1991 at about 5-30 a.m. in a Wagon near Behal Q.B. Link Canal, Mehraj Colony, Jamalpur. The matter was reported to the Police the same day at 6-00 a.m. by complainant Sooba. The distance between the site of occurrence and Police Station being 7 kilometers. Appellants Khalid Mehmood and Zahid alias Javed Iqbal were arrested on 29-8-1991 by Muhammad Ashiq ASI Police Station Sharqpur Sharif. He also got recovered .12 bore gun from Zahid appellant on the same day along with 27 live cartridges, vide memo. (Exh.PP). He got recovered .7 nun rifle P.15 along with 15 live bullets (Exh.P16/1-15) which were taken into possession vide memo. Exh.P.R. The empties recovered from the spot and the crime weapons were sent to Forensic Science Laboratory for comparison. According to the report (Exh.PAA) of the Fire-Arm Expert, one empty matched with the Gun recovered from Zahid appellant and one empty matched with .7 mm rifle recovered from Khalid Mehmood appellant.

9. There is an old enmity between the parties. It is a day time occurrence. The F.I:R. has been lodged with promptness. All the P.Ws. and the deceased were to attend the Court of Additional Session Judge at Nankana Sahib and it was known to every body that they were to board a wagon or bus in order to reach the Court in time.

10. Insofar as the motive is concerned, it has been vehemently argued by learned counsel for the appellants that the motive for occurrence as stated in the F.I.R. could not be proved at the trial. We are afraid the contention of the learned counsel is without any basis. The accused in their statements recorded under section 342, Cr.P.C. have not denied or refuted the existence of criminal litigation between the parties. There is no cavil with the proposition that even if there is no motive, murder can be committed in the absence of one as the move relates to the state of mind of a criminal. There is no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged and proved. If the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If normal sentence is not be awarded, the Court is to make out a case for reduction of sentence on the basis of mitigating circumstances. It is not a fit case where this Court should interfere with the imposition of the sentence by the two Courts below Waris Khan v. The State (2001 SCMR 387), Talib Hussain v. State (1995 SCMR 1776), State/Government of Sindh v. Sobharo (1993 SCMR 585), Mushtaq Ahmad v. Muhammad Siddique (PLD 1975 SC 160), Manzoor Ahmad v. The State (PLD 1983 SC 197), Sardar Ali v. State (1969 SCMR 542), Ahmad Nisar v. State (1977 SCMR 175), Sher Ali v. State (1980 SCMR 291), Ghulam Nazir v. State (1981 SCMR 805), Sher Daraz Khan v. State (1983 SCMR 266), Arif v. State (1984 SCMR 124), Mati-ur-Rehman v. State (1985 SCMR 489), Ahmad Khan v. State (1985 SCMR 975), Faqir Masih v. Mubarik Masih (1987 SCMR 320), Roheeda v. Khan Bahadur (1992 SCMR 1036), Muhammad Ishaque Khan v. State (PLD 1994 SC 259), Zulfiqar v. State (1995 SCMR 1668), Intizar Hussain v. Muhammad Sarwar (1996 SCMR 872), Ghuncha Gul v. State (1971 SCMR 368) and Muhammad Nazir v. State (1985 SCMR 507).

11. From the above discussion, it is manifest that the prosecution has proved its case beyond a reasonable doubt against Khalid Mehuood and Zahid alias Javed Appellants by producing at the trial ocular testimony, recovery of weapons of offence, positive report of the Fire- I Arm Expert motive and medical evidence.

12. Adverting to the case of Abid Hussain appellant, it may be observed that no weapon of offence has been effected from his possession. He was found innocent by different police agencies including Ch. Akhtar Hussain, DSP, CIA, Sheikhupura and got discharged from the Court of the Magistrate, which order was not challenged by the complainant. We entertain serious doubt in our minds, regarding participation of appellant Abid Hussain in the commission of crime. The evidence of the complainant and Nasir Ahmad P.Ws. qua appellant Abid Hussain is not credible and trustworthy. The following observations were made by this Court in Ayub Masih v. The State (PLD 2002 SC 1048):-- "It is hereby necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there be an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to hint. The doubt of course must be reasonable and not the imaginary or artificial. The rule of benefit of doubt, which described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent person be convicted. In simple words it means that utmost care should be taken by the court in convicting the accused. It was held in The State v. Mushtaq Ahmad, (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and that is enforced rigorously in view of the saying of the Holy Prophet (PBUH) that the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."

13. In view of the above discussion, Criminal Appeal No.304 of 2009, qua Khalid Mehmood and Zahid alias Javed Iqbal appellants, is dismissed and conviction and sentences awarded to them are maintained and upheld. However, the appeal, to the extent of Abid Hussain appellant is allowed and conviction and sentence awarded to him is set aside. He shall be released forthwith if not required in any other case. N.H.Q./K-12/SC Order accordingly.