PLJ 2021 Cr.C. (Lahore) 339 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Death sentence--Modification in quantum of sentence--Even if evidence of motive and alleged recovery of .30 bore pistol at instance of appellant is excluded from consideration, there is sufficient incriminating evidence on record against appellant in form of straightforward and confidence inspiring ocular account furnished by complainant and P.W. fully supported by medical evidence i.e. statement Doctor of (PW.8) and post-mortem examination report to maintain his conviction under Section 302(b), PPC, which is accordingly maintained--However, it is not a case of capital punishment because of reasons: (i) motive set up by prosecution has not been believed by us; (ii) recovery of .30 bore pistol (P.8) at instance of appellant has not been proved; and (iii) appellant made only one fire shot at deceased and there was no allegation of repetition of fire against him--There are extenuating circumstances, on basis of which (appellant) could not be made liable to maximum punishment provided under Section 302(b), PPC, rather ends of justice would be met, if his death sentence is converted into imprisonment for life--Therefore, while maintaining conviction under Section 302(b), PPC, alter sentence of (appellant) from death to imprisonment for life--Amount of compensation, as ordered by trial Court, is maintained, however, in case of default, appellant shall undergo simple imprisonment for six instead of one year, as observed by trial Court--Benefit of Section 382-B, Code of Criminal Procedure is extended to appellant--Appeal in hand stands dismissed with above modification in quantum of sentence.
[P. 344] A, B & C
2009 SCMR 1188 and 2014 SCMR 227.
Mr. Amin Ashraf Khan and Ms. Nighat Saeed Mughal, Advocates for Appellant.
Rai Akhtar Hussain, Deputy Prosecutor General for State.
Ch. Aqeel Ahmad Gondal, Advocate for Complainant.
Date of hearing: 11.11.2020.
PLJ 2021 Cr.C. (Lahore) 339 (DB)Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.AKHTAR ABBAS--AppellantversusSTATE--RespondentCrl. A. No. 503-J of 2018 & M.R. No. 83 of 2017, heard on 11.11.2020.
Judgment
Shehram Sarwar Ch., J.--Akhtar Abbas (appellant) was tried by the learned Addl. Sessions Judge, Sahiwal in case FIR No. 321 dated 8.7.2015 offence under Section 302, PPC registered at Police Station Harappa District Sahiwal for the murder of Mst. Sumera Bibi (deceased) daughter of complainant. Vide judgment dated 29.4.2017 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to death with a further direction to pay Rs. 2,00,000/- (rupees two lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for one year. Assailing the above conviction and sentence, the appellant has filed, the appeal in hand whereas the learned trial Court has sent Murder Reference No. 83 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, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PB) registered on the statement (Ex.PD) of Mst. Fouzia Bibi, complainant (PW.6) is that about eight years ago, marriage of Mst. Sumera daughter of complainant was solemnized with Akhtar Abbas (appellant) but no issue was born-out of the said wedlock and due to that reason, the spouses used to quarrel with each other. About three months prior to the incident, daughter of complainant left the house of her husband (appellant) and came to the house of complainant at Basti Bhattian. The complainant party filed a suit for dissolution of marriage of Mst. Sumera Bibi in the Family Court at Sahiwal wherein the next date of hearing was fixed as 04.08.2015. Akhtar Abbas extended threat to the daughter of complainant to teach her a lesson for filing the said suit and owing to that revenge, the appellant got a criminal case bearing FIR No. 305 dated. 04.06.2015 under Section 496-A, PPC registered at Police Station Saddar Chichawatni against Zahoor Ahmad second husband of complainant regarding abduction of Mst. Sumera Bibi daughter of complainant, which was cancelled on her statement. This act of Mst. Sumera Bibi offended Akhtar Abbas. On the intervening night of 07/08.07.2015, the complainant her husband Zahoor Ahmad, brother-in-law (dewar) Abdul. Shakoor, daughter Sumera Bibi and other family members were sleeping in the,-Courtyard of house. The electric bulb was lit. At around 1.15 a.m. The complainant and other inmates of house woke up on hearing din of main gate. Akhtar Abbas armed with pistol was present in the house, who was identified by the complainant party in the light of bulb. The appellant while pointing his weapon extended threat that whoever came near would not be let alive and made a fire at Mst. Sumera Bibi, lying on the cot, by putting his pistol on right side of her chest, which went through and through. The complainant party tried to apprehend the appellant but he fled away while brandishing his pistol. Daughter of complainant succumbed to the injuries on the spot.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant was summoned by the learned Addl. Sessions Judge, Sahiwal to face the trial. Copies of relevant documents were provided to him, as required under Section 265-C, Code of Criminal Procedure and formal charge under Section 302, PPC was framed against him on 09.01.2016, to which he pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under Section 342, Code of Criminal Procedure was recorded on 27.04.2017, wherein he refuted all the allegations of the prosecution and professed his innocence. 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 did he produce any defence evidence. However, after conclusion of trial, the learned trial Court convicted and sentenced the appellant, as detailed above. Hence this appeal and murder reference.
4. Learned counsel for the appellant, in support of this appeal, contends that the matter was reported to the police with due deliberation and consultation on the part of the complainant; that the appellant has falsely been implicated in this case; that the story of prosecution is highly improbable and presence of witnesses of ocular account namely Mst. Fouzia Bibi, complainant (PW.6) and Zahoor Ahmad (PW.7) at the place of occurrence at relevant time is of doubtful nature; that a vague motive has been set out in the FIR and brought before the learned trial Court, which has not been proved; that the ocular account is not in line with the medical evidence; that the alleged recovery of .30 bore pistol (P.8) at the instance of appellant is inconsequential; that the version of the appellant is more probable, convincing and even gets full support from prosecution's own case; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that there was no conscious or deliberate delay in reporting the crime to the police; that Mst. Fouzia Bibi, complainant (PW.6) and Zahoor Ahmad (PW.7) have no enmity with the appellant to falsely implicate him in this case; that the eye-witnesses have reasonably explained their presence at the spot at relevant time which is quite natural and probable; that the prosecution has also proved motive part of the occurrence; that the medical evidence is in line with the ocular account; that the prosecution has proved its case to the hilt against the appellant, which is further corroborated by the recovery of .30 bore pistol (P.8) at the instance of appellant and positive report of Punjab Forensic Science Agency (Ex.PP); that the version of the appellant is nothing but an afterthought, therefore, the appeal filed by the appellant merits dismissal.
6. We have heard arguments of learned counsel for the parties as well as learned Deputy Prosecutor General for the State to their entire satisfaction, given our serious consideration to their respective submissions and also perused the record.
7. This unfortunate incident wherein Mst. Sumera Bibi (deceased) daughter of complainant lost her life, as per prosecution, took place on the intervening night of 07/08.07.2015 at about 1.15 a.m. in the area of Chak No. 102/6AR Basti Bhattian situated within the territorial limits of Police Station Harappa District Sahiwal The distance between the place of occurrence and the police station is about three kilometers. The matter was reported to the police through statement (Ex.PD) of Mst. Fouzia Bibi, complainant (PW.6) on the same night at 3.30 a.m. and formal FIR (Ex.PB) was got registered at 3.50 a.m. The post-mortem examination of the dead body of deceased was also conducted on the same day at 11.15 a.m. We have noted that the deceased was daughter of complainant (PW.6) and Zahoor Ahmad (PW.7), complainant's second husband. In a situation of grief and shock, response of every person viz to report the incident to the police with promptitude or to join his/her mourning family is different, therefore, after considering the relevant circumstances, we are of the view that no adverse inference for not reporting the matter to the police promptly by the complainant's side, can be drawn against the prosecution. Hence, we hold that the delay, if any, in reporting the matter to the police was not conscious or deliberate.
8. The ocular account has been furnished by Mst. Fouzia Bibi, complainant (PW.6) and Zahoor Ahmad (PW.7). Both the eye-witnesses have reasonably explained their presence on the spot at relevant time by stating that they along with other family members were sleeping in the Courtyard of house where the appellant arrived and committed the murder of deceased. The occurrence took place in the Courtyard of house of complainant party, which has not been disputed by the defence. Both the witnesses are residents of same house where the incident took place, therefore, their presence at the place of occurrence is quite natural or probable. 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. Though the eye-witnesses are closely related to the deceased being her parents but merely because of their close relationship with the deceased, their evidence cannot be discarded. The witnesses of ocular account have no enmity with the appellants to falsely implicate him in this case by letting off the real culprit. Even it is a case of single accused and substitution in such like cases is a rare phenomenon. Therefore, we hold that the witnesses of ocular account namely Mst. Fouzia Bibi, complainant (PW.6) and Zahoor Ahmad (PW.7) were present at the spot and had witnessed the occurrence.
9. The motive behind the occurrence as alleged in the FIR and brought before the learned trial Court was that daughter of complainant Mst. Sumera Bibi (deceased) was living in the house of complainant after dispute with her husband Akhtar Abbas (appellant). Mst. Sumera Bibi also filed a suit for dissolution of marriage against the appellant and due to that grudge, the appellant murdered the deceased. It was alleged in the FIR that the appellant had extended threat to Mst. Sumera Bibi (deceased) to teach her a lesson for filing suit for dissolution of marriage but the complainant party did not move any application to the police with regard to the threat earlier extended to the deceased by the appellant. We may observe here that the quarrel between the spouses is not unusual in our culture. Furthermore, no independent witness in support of the motive was associated during the course of investigation or brought in the witness box at trial. In this view of the matter, we hold that the prosecution has not been able to substantiate the motive part of the occurrence.
10. In the FIR and before the learned trial Court, it was case of the prosecution that Akhtar Abbas (appellant) made a fire at Mst. Sumera Bibi (deceased) by putting pistol on right side of her chest. Dr. Kiran Azhar, who conducted post-mortem examination of the dead body of deceased, appeared before the learned trial Court as PW.8 and furnished medical evidence. The post-mortem examination report showing the said injury on the chest of deceased with tattooing and an exit wound on her back is available on record as Ex.PJ to PJ/2. Therefore, in our view, the ocular account is fully supported by medical evidence.
11. So far as the alleged recovery of .30 bore pistol (P.8) at the instance of appellant, which was taken into possession vide recovery memo. Ex.PN is concerned, the same is of no avail to the prosecution because of the reason that the same was got recovered by the appellant from the bank of LBDC Canal situated in Chak No. 102/6AR, which is an open place, accessible to everyone.
12. Now we take up the version of the appellant disclosed by him in his statement recorded under Section 342, Code of Criminal Procedure. The appellant neither opted to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. Considering the above circumstances, it is concluded that the appellant has failed to prove his version and learned trial Court has rightly discarded the same with sufficient reasons.
Description: A13. From the above circumstances, we are of the considered view that even if the evidence of motive and alleged recovery of
.30 bore pistol (P.8) at the instance of appellant is excluded from consideration, there is sufficient incriminating evidence on the record against the appellant in the form of straightforward and confidence inspiring ocular account furnished by Mst. Fouzia Bibi, complainant (PW.6) and Zahoor Ahmad (PW.7), fully supported by the medical evidence i.e. statement of Dr. Kiran Azhar (PW.8) and post-mortem examination report (Ex.PJ to PJ/2) to maintain his conviction under Section 302(b), PPC, which is accordingly maintained. However, it is not a case of capital punishment because of the reasons: (i) the motive set up by the prosecution has not been believed by us; (ii) the recovery of .30 bore pistol (P.8) at the instance of appellant has not been proved; and (iii) the appellant made only one fire shot at the deceased and there was no allegation of repetition of fire against him.
Description: B14. All the above facts of the case lead us to the conclusion that there are extenuating circumstances, on the basis of which Akhtar Abbas (appellant) could not be made liable to the maximum punishment provided under Section 302(b), PPC, rather the ends of justice would be met, if his death sentence is converted into imprisonment for life. In this regard, reliance may be placed on the case law reported as "Mir Muhammad alias Miro vs. The State" (2009 SCMR 1188) and "Zafar Iqbal and others v. The State" (2014 p SCMR 1227).
Description: C15. Therefore, while maintaining the conviction under Section 302(b), PPC, we alter the sentence of Akhtar Abbas (appellant) from death to imprisonment for life. The amount of compensation, as ordered by the learned trial Court, is maintained, however, in case of default, the appellant shall undergo simple imprisonment for six months instead of one year, as observed by the learned trial Court. Benefit of Section 382-B, Code of Criminal Procedure is extended to
the appellant. The appeal in hand stands dismissed with the above modification in the quantum of sentence.
16. Murder Reference No. 83 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Akhtar Abbas (convict) is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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