PLJ 2024 Cr.C. (Note) 91
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and Farooq Haider, JJ.
SHAHNAWAZ--Appellant
versus
STATE & another--Respondents
Crl. A. No. 56558 & M.R. No. 258 of 2019, heard on 9.10.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Sentence altered--Mitigation--Quantum of sentence--Eye-witnesses stated during their cross-examination that their houses were situated at a distance of about 7 acres from place of occurrence--No suggestion was put to said witnesses during their cross- examination that their houses were not situated at abovementioned distance from place of occurrence--The appellant was arrested in this case whereas, abovementioned empties recovered from spot, were deposited in office of PFSA i.e., after 12 days from arrest of appellant therefore, possibility cannot be ruled out that fake empties were prepared from pistol allegedly recovered on pointation of appellant and sent to office of PFSA while showing recovery of pistol through mentioning a fake date of recovery therefore, it is not safe to rely upon abovementioned pieces of evidence--Now coming to quantum of sentence, we have noted some mitigating circumstances in favour of appellant--Firstly, three other co-accused were also implicated in this case by prosecution however, they were acquitted of charge by trial Court by extending them benefit of doubt--Secondly, recovery of pistol 9 mm on pointation of Shahnawaz appellant vide recovery memo. and positive report of PFSA have been disbelieved by us due to reasons mentioned in para No. 15--Under circumstances, death sentence awarded to Shahnawaz appellant is quite harsh and sentence of imprisonment for life shall meet ends of justice--Appeal dismissed.
[Para 12, 15 & 17] A, B & C
Mr. Kamran Javed Malik, Advocate for Appellant.
Mr. Munir Ahmad Sial, Deputy Prosecutor General for State.
c, Advocate for Complainant.
Date of hearing: 9.10.2023.
Judgment
Malik Shahzad Ahmad Khan, J.--This judgment shall dispose of Criminal Appeal No. 56558 of 2019 filed by Shahnawaz (appellant) against his conviction and sentence and Murder Reference No. 258 of 2019 sent by the learned trial Court for confirmation or otherwise of the sentence of Death awarded to Shahnawaz (appellant) by the learned trial Court. We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 13.07.2019 passed by the learned Addl. Sessions Judge, Pasrur.
2. Shahnawaz (appellant), along with Sharafat Ali, Asif Abbas and Muhammad Sufyan (co-accused since acquitted) was tried in case FIR. No. 133 dated 01.07.2017 registered at Police Station Badiana District Sialkot in respect of offence under Sections 302/114/148/149 of PPC. After conclusion of the trial, the learned trial Court vide its judgment dated 13.07.2019 has convicted and sentenced Shahnawaz appellant as under:--
Under Section 302(b) PPC to ‘Death as tazir’ for committing Qatl-i-Amd of Waqas (deceased). He was also ordered to pay Rs. 500,000/- (Rupees five hundred thousand only) to the legal heirs of Wagas deceased as compensation under Section 544-A of Cr.P.C. and in default thereof to undergo simple imprisonment for six months.
3. Brief facts of the case as given by the complainant Muhammad Amin (PW-7) in the complainant (Exh.PK) on the basis of which formal FIR (Exh.PA), was chalked out, are that he (complainant) was resident of Mauza Fatehpur Police Station Badiana District Sialkot and used to deal with the business of cattle. On 01.07.2017 at about 03:30 p.m., he (complainant) along with his son, namely, Muhammad Waqas (deceased) was present at his ‘Dera’ situated at MauzaFatehpur. Muhammad Waqas (deceased) proceeded to his house from the ‘Dera’ and when he (Muhammad Waqas deceased) reached near the shop of one Faiz Ahmad, Shahnawaz (appellant) armed with pistol 9 mm, Sharafat Ali (co-accused since acquitted) armed with pistol 30 bore, Muhammad Sufyan (co-accused since acquitted), accused with the Nick name Nomi armed with pistol 30 bore, Arif and Asif co-accused, who were ambushed there, forcibly stopped Muhammad Waqas (deceased) at gun point. Accused persons raised ‘lalkaras’ and Shahnawaz (appellant) shouted that Muhammad Waqas (deceased) be taught a lesson and be killed for lodging the case against them (accused party). Muhammad Waqas (deceased) raised hue and cry upon which Muhammad Irfan (PW-8) and Muhammad Yaseen (PW-9) attracted to the spot however, the accused persons told that if any one would come near, he shall be done to death and in their (PWs) view, Shahnawaz made fire shots with his 9 mm pistol which landed at different parts of both legs, thighs and knees of Muhammad Waqas (deceased) who fell down. Accused persons fled away from the spot while brandishing their weapons. Muhammad Waqas (deceased) was taken to the hospital in injured condition however, he succumbed to the injuries in the way to the hospital.
Motive behind the occurrence was that Muhammad Waqas (deceased) had lodged FIR No. 125 of 2017 at Police Station Badiana for offences under Sections 337 A(ii)/34 of PPC against Shahnawaz accused etc in which Shahnawaz accused etc were on interim pre-arrest bail and due to this grudge, the accused persons committed the murder of Muhammad Waqas (deceased) with their common intention.
4. Shahnawaz appellant was arrested in this case on 08.07.2017, by Muhammad Nadeem Ashraf Sub Inspector/I.O (PW-12) who on 22.07.2017 recovered pistol 9 mm (P-5) from his possession vide recovery memo. (Exh.PD). After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused on 12.05.2018, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced thirteen witnesses during the trial and also produced documentary evidence in the shape of (Exh.PA to Exh.PAH).
6. The statements of the appellant, as well as, his co-accused under Section 342 of Cr.P.C., were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to a question that ‘Why this case against you and why the PWs have deposed against you” the appellant Shahnawaz replied as under:--
“PWs are co-related and inimical to me. PWs have deposed against us with malafide intention just due to previous litigation with their family.”
The appellant neither opted to make his statement on oath as envisaged under Section 340 (2), Cr.P.C., nor produced any evidence in his defence.
The learned trial Court vide its judgment dated 13.07.2019 found Shahnawaz appellant guilty, convicted and sentenced him as mentioned and detailed above however, acquitted Sharafat Ali, Muhammad Sufyan and Asif Abbas co-accused while extending them the benefit of doubt.
7. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant being in league with the police; that there is delay of more than seven hours in reporting the matter to the police and there is delay of ten hours in conducting the post-mortem examination on the dead body of Muhammad Waqas (deceased) which has created doubt about the truthfulness of the prosecution story; that the prosecution’s eye-witnesses are chance witnesses and they could not prove any reason of their presence at the spot at the relevant time; that the alleged recovery of pistol 9 mm (P- 5) vide memo. (Exh.PD) has been planted against the appellant and the empties were sent to the office of PFSA after the arrest of the appellant; that the motive was also not proved in this case against the appellant through any reliable evidence. It is therefore, prayed that the appeal filed by Shahnawaz (appellant) may be allowed and the appellant may be acquitted of the charge by extending him the benefit of doubt.
8. On the other hand, it is contended by the learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant that the occurrence in this case took place on 01.07.2017 at 03:30p.m., and the matter was promptly reported to the police on the same day at 10:35 p.m., i.e., within a period of 07 hours and 05 minutes from the occurrence, whereas, the distance between the place of occurrence and police station was 10- kilometers and the minor delay in lodging the FIR has plausibly been explained by the PWs who stated that they first took Muhammad Waqas in injured condition to the hospital; that it was a broad day light occurrence therefore, there was no possibility of any misidentification of the appellant by the prosecution eye-witnesses; that the prosecution eye-witnesses were residents of the same locality where the occurrence took place therefore, they cannot be termed as chance witnesses and they have also explained their presence at the spot at the relevant time; that the prosecution case against the appellant is fully supported by the medical evidence furnished by Dr. Ali Haider Awan (PW-2) & post-mortem examination report of Muhammad Waqas deceased (Exh.PB); that the prosecution case is further corroborated by the recovery of pistol 9 mm (P-5) from the possession of the appellant vide recovery memo. (Exh.PD) and positive report of PFSA (Exh.PAH); that motive has also been proved in this case against the appellant through reliable and confidence inspiring evidence of the prosecution witnesses and documentary evidence (Exh.PAF); that the prosecution has proved its case against the appellant beyond the shadow of any doubt therefore, his appeal may be dismissed, Murder Reference be answered in the positive and the sentence of death awarded to the appellant by the learned trial Court may be upheld & maintained.
9. Arguments heard. Record perused.
10. Prosecution story as set forth in the complainant (Exh.PK) on the basis of which formal FIR (Exh.PA) was chalked out, has already been reproduced in para No. 3 of this judgment therefore, there is no need to repeat the same.
11. It is true that there is delay of 07 hours and 05 minutes in lodging of the FIR but we have noted that the said delay has plausibly been explained by the prosecution witnesses in the contents of the FIR, as well as, in the statements of the prosecution eye-witnesses. They categorically stated that initially Muhammad Waqas (deceased) was injured during the occurrence therefore, they (PWs) shifted him to the Civil Hospital, Sialkot but on the way, he succumbed to the injuries sustained by him at the hands of Shahnawaz (appellant). It was quite natural conduct of the prosecution eye-witnesses who were closely related to the deceased, to take him to the hospital in order to save his life instead of rushing towards the police station for lodging the FIR against the appellant and his co-accused. We are therefore, of the view that the abovementioned delay in reporting the matter to the police has plausibly been explained by the prosecution witnesses and the said delay is not fatal to the prosecution case.
12. Ocular account of the prosecution in this case has been produced through the evidence of Muhammad Imran alias Irfan (PW-8) and Muhammad Yasin (PW-9). The occurrence in this case took place in the village Fatehpur District Sialkot. Both the abovementioned prosecution eye-witnesses are also residents of the same village and their houses were situated close to the place of occurrence therefore, their presence at the spot at the relevant time can neither be termed as unnatural nor improbable. The abovementioned eye-witnesses stated during their cross-examination that their houses were situated at a distance of about 7 acres from the place of occurrence. No suggestion was put to the said witnesses during their cross- examination that their houses were not situated at the abovementioned distance from the place of occurrence. Relevant parts of their statements are hereby reproduced hereunder for ready reference:-
Muhammad Imran alias Muhammad Irfan (PW-8),
“My house is at a distance of 7 acres from the place of occurrence.”
Muhammad Yasin (PW-9),
“My daira is located at the distance of 5/7 acres from the shop owned by Haji Fiaz Ahmad towards eastern side.”
Both the abovementioned eye-witnesses are the natural eye-witnesses of the occurrence. The occurrence in this case took place in the broad day light i.e., on 01.07.2017 at 03:30p.m. The appellant was resident of the same village and he had previous enmity with the complainant party therefore, he was earlier known to the abovementioned prosecution eye-witnesses and as such, there was no chance of any misidentification of the appellant. Abovementioned eye-witnesses were cross-examined at length but their evidence could not be shaken. They corroborated each other on all material aspects of the case. Their evidence is confidence inspiring and trustworthy.
13. Ocular account of the prosecution furnished through Muhammad Imran alias Irfan (PW-8) and Muhammad Yasin (PW-9) has fully been supported by the medical evidence brought on record by the prosecution through the evidence of Dr. Ali Haider Awan (PW-2). It was the case of abovementioned prosecution eye-witnesses that on 01.07.2017 at 03:30p.m the appellant while armed with 9 mm pistol made fire shots which landed on the legs, thighs and knees of Muhammad Waqas (deceased). As per evidenc of Dr. Ali Haider Awan (PW-2) and post-mortem report of MuhammadiWaqas (deceased) (Exh.PB), there were five entry and five exit wounds on the both legs of the deceased. According to the evidence of abovementioned Medical Officer, he conducted post-mortem examination on the dead body of Muhammad Waqas (deceased) on 02.07.2017 at 12:40 a.m., and the probable time that elapsed between injuries and death was within two hours, whereas, the time that elapsed between the death and post-mortem examination was 9 to 12 hours, which coincides with the time of occurrence as mentioned by the abovementioned prosecution eye-witnesses. Medical Officer further stated that all injuries were caused by the fire-arm weapon. He further noted tattooing around the entry wounds of Muhammad Waqas (deceased) and according to the site-plan (Exh.PN), Shahnawaz appellant was at a distance of only 4-feet from Muhammad Waqas (deceased) at the time of occurrence. We are therefore, of the view that the medical evidence has fully supported the ocular account of the prosecution.
14. Motive behind the occurrence was the registration of an earlier FIR No. 125 dated 08.06.2017 at Police Station Badiana District Sialkot offences under Sections 337 A(ii)/337 L (ii)/34 of PPC which was lodged by Muhammad Waqas (deceased) against Shahnawaz (appellant). Aforementioned FIR was brought on the record by the prosecution through the statement of Amjad Ali T/ASI (PW-13) and the same was exhibited as (Exh.PAF). Perusal of the aforementioned FIR shows that Shahnawaz (appellant) is a nominated accused in the said FIR which was lodged by Muhammad Waqas (deceased). The abovementioned prosecution witness (Amjad Ali T/ASI PW-13) was not cross-examined though an opportunity for cross-examination was given to the defence. In the light of above, we are of the view that the prosecution has proved the motive alleged against the appellant.
15. Insofar as the recovery of pistol 9 mm (P-5) on the pointation of the appellant vide recovery memo. (Exh.PD) and positive report of PFSA (Exh.PAH) are concerned, we have noted that three empties were recovered from the spot on 02.07.2017. The appellant was arrested in this case on 08.07.2017, whereas, the abovementioned empties recovered from the spot, were deposited in the office of PFSA on 20.07.2017 i.e., after 12 days from the arrest of Shahnawaz appellant therefore, possibility cannot be ruled out that fake empties were prepared from pistol (P-5) allegedly recovered on the pointation of the appellant and sent to the office of PFSA while showing the recovery of pistol (P-5) on 22.07.2017, through mentioning a fake date of recovery therefore, it is not safe to rely upon the abovementioned pieces of evidence. Reference in this context may be made to the judgments reported as Muhammad Amin vs. The State and another’ (2019 SCMR 2057) & Asad Rehmat vs. The State and others’ (2019 SCMR 1156).
16. Though we have disbelieved the prosecution evidence to the extent of recovery of pistol (P-5) on the pointation of the appellant and positive report of PFSA (Exh.PAH) but if the abovementioned prosecution evidence is taken out of consideration even then their remains sufficient incriminating evidence on the record to prove the prosecution case against Shahnawaz appellant, in the shape of confidence inspiring evidence of the prosecution eye-witnesses, namely, Muhammad Imran alias Irfan (PW-8) and Muhammad Yasin (PW- 9). Medical evidence also supports the ocular account and motive is also proved in this case. We are therefore, of the view that prosecution has proved its case against the appellant beyond the shadow of any reasonable doubt.
17. Now coming to the quantum of sentence, we have noted some mitigating circumstances in favour of the appellant. Firstly, three other co- accused were also implicated in this case by the prosecution however, they were acquitted of the charge by the learned trial Court by extending them the benefit of doubt. Secondly, recovery of pistol 9 mm on the pointation of Shahnawaz appellant vide recovery memo. (Exh.PD) and positive report of PFSA (Exh.PAH) have been disbelieved by us due to the reasons mentioned in para No. 15 above. Under the circumstances, the death sentence awarded to Shahnawaz appellant is quite harsh and the sentence of imprisonment for life shall meet the ends of justice.
18. While treating it a case of mitigation, the conviction of Shahnawaz appellant under Section 302(b), PPC awarded by the learned trial Court is maintained but his sentence is altered from death to imprisonment for life. The compensation warded by the learned trial Court against the appellant and sentence in default thereof are maintained and upheld. The benefit of Section 382-B of Cr.P.C. is extended in favour of the appellant.
19. Consequently, with the above said modification in the sentence of Shahnawaz appellant, Criminal Appeal No. 56558 of 2019 filed by Shahnawaz appellant is hereby dismissed. Murder Reference (M.R. No. 258 of 2019) is answered in the negative and death sentence of Shahnawaz appellant is not confirmed.
(A.A.K.) Appeal dismissed
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