2011 SCMR 905 (PLP)

M. A. SHAHID SIDDIQUI, J.

The appellant Muhammad Yaseen was convicted by a learned Additional Sessions Judge at Faisalabad in case F.I.R. No.369 dated 24-9-1997 Police Station Dijkot, Faisalabad for committing Qatl-e-amd of Pervaiz Iqbal deceased. He was sentenced to death and directed to pay Rs.50,000 as compensation to the legal heirs of deceased or in default of payment thereof to suffer further imprisonment for six months vide judgment dated 30-1-2001. A learned Division Bench of the Lahore High Court, Lahore while answering Murder Reference No. 135 of 2001 in the affirmative confirmed the death sentence passed by the learned trial Court and dismissed Criminal Appeal No.192-J of 2001. Leave to appeal was granted by this Court to re-appraise the entire evidence in detail for the safe administration of criminal justice.

2. The occurrence took place on 24-9-1997 at 1200 hrs in the area of Chak No.274/RB at a distance of 18 kilometres from Police Station Dijkot. According to the prosecution Pervez Iqbal, at the relevant time was on his way back to his home after purchasing ice from the shop of Ashraf Butt. When he reached near the corner of the house of one Riaz, Muhammad Yaseen while carrying a double barrel .12 bore gun with him suddenly emerged from the chowk of the village. He challenged Pervaiz Iqbal saying that he would give him a taste for insulting him and opened fire hitting Pervaiz Iqbal on his back. The occurrence was witnessed by P.W.8 Muhammad Iqbal father of the deceased and two others, namely, P.W.9 Muhammad Rafique and one Obaidullah who was given up at the trial. The accused then decamped.

3. The motive for the offence was that the woman folk of the village used to go to the complainant's land falling near the village and appellant Muhammad Yaseen used to cut jokes with them. He was forbidden many a times by the deceased due to which he got annoyed.

4. P.W.8 Muhammad Iqbal leaving the dead body of his son at the spot, left for the police station. He met P.W.13 Mushtaq Elahi, S.-I. who was on patrol duty at pull Aliwal, and made statement Exh.PG which formed basis of the formal F.I.R. Exh.PG/1. The police after usual investigation, recording the statements of the witnesses and having recovered rifle P.4 from the house of the accused on 24-8-1998, submitted its report under section 173, Cr.P.C.

5. The prosecution produced in all 13 witnesses in order to substantiate the charge. P.W.8 Muhammad Iqbal complainant and P.W.9 Muhammad Rafique furnished ocular account of the occurrence. P.W.7 Dr. Capt. Muhammad Anwar provided medical evidence. The accused in his statement under section 342, Cr.P.C. denied the allegation and pleaded innocence. He maintained that Pervaiz Iqbal deceased was not a man of good character and had enmity with different people. He further stated that his Bhanja Muhammad Asif was murdered by Mukhtar Ahmed, Sultan and Shahzad and that case was still pending in the Court. In this background of enmity, the instant case was got registered falsely against him.

6. The learned trial Court has not relied upon the evidence of motive and held the recovery of .12 bore gun P.4 of no consequence. Both the learned Courts below relying upon ocular account of the occurrence furnished by P.W.8 Muhammad Iqbal and P.W.9 Muhammad Rafique supporting medical evidence, held the appellant responsible for committing Qatl-e-amd of Pervaiz Iqbal and awarded him death sentence.

7. We have heard the learned counsel for the parties and have perused the record.

8. The learned counsel for the appellant argued that P.W.8 Muhammad Iqbal is father of the deceased whereas P.W.9 Muhammad Ratique though not related to the deceased but resides on the other side of the village. P.W.8 Muhammad Iqbal was not required to wait for his son outside his house whereas P.W.9 Muhammad Rafique has not given any reason for being present at the scene of occurrence. In this way, P.W.9 may be termed as a chance witness and the ocular account of the occurrence furnished by these witnesses alone cannot be considered sufficient for conviction. Learned counsel for the appellant has referred to the case of Mehmood Rashid and others v. The /State (2003 SCMR 581).

9. The occurrence took place in a broad-daylight on a thoroughfare when Pervaiz Iqbal was on his way back to his house after purchasing ice, therefore, the story of substitution propounded by learned counsel for the appellant cannot be accepted. In the absence of any corroboration, the Courts are expected to follow the rule of abundant care and caution in the matter of sentence. It is not denied that no resident of the lane in which the occurrence took place appeared and supported the prosecution story. The prosecution has failed to prove the motive for the offence. The appellant allegedly fired only one shot and decamped from the place of occurrence. The P.Ws. were at a considerable distance from the place where Pervaiz Iqbal was done to death. Therefore, in the above circumstances, we consider it just and proper to convert the sentence of death into imprisonment for life.

10. Resultantly, this appeal is partly allowed while maintaining the conviction under section 302(b), P.P.C. the appellant is sentenced to rigorous imprisonment for life and directed to pay Rs. 50,000 as compensation in the above terms. The appellant is also held entitled to have the benefit of section 382-B, Cr.P.C.

11. The above are the reasons of our short order of even date. N.H.Q./M-61/SC Appeal partly allowed.