PLJ 2021 Cr.C. (Note) 18
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324 & 337-F(iii)--Conviction and sentence--Challenge
to--Acquittal of co-accused--Non-proving of motive--Non-believable PFSA report of crime emptor--Mitigating circumstances--Alternation of sentence--Benefit of Section 382, Cr.P.C.--Admittedly real daughter of Complainant PW-4 wife of appellant has not been produced to establish motive--Further injured PW-5 real son of PW-4 while making his statement (examination in chief) before trial Court did not utter even a single word regarding motive--Prosecution has failed to prove motive--Possibility of manufacturing of crime empties before their dispatch to said laboratory to obtain positive report cannot be ruled out of consideration, hence, positive report regarding matching of crime empties with weapon of offence is not believable and is hereby discarded--It is not determinable in this case as to what was real cause of occurrence and as to what had actually happened immediately before occurrence which resulted into present unfortunate incident--Held: It is well recognized principle by now that accused is entitled to benefit of doubt as an extenuating circumstance while deciding his question of sentence as well-- Conviction of appellant in offence under Section 302 (b), PPC for committing murder of deceased is maintained but his sentence is altered from death to imprisonment for life--Compensation and sentence in default whereof awarded by trial Court through impugned judgment are maintained and upheld--Conviction and sentences of appellant on other heads in offences under Sections 324 and 337-F(iii), PPC awarded by trial Court are maintained--All these sentences of appellant shall run concurrently--Appeal was dismissed. [Para 15, 16, 19 & 21] A, B, C & D
Malik Sarood Ahmad, Defence counsel at State expense for Appellant.
Mr. Tariq Javed, DPP for State.
Mr. Shah Nawaz Khan Niazi, Advocate by Complainant.
Date of hearing: 15.11.2017.
PLJ 2021 Cr.C. (Note) 18
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
versus
STATE--Respondents
Crl. A. No. 591-J of 2014 & M.R. No. 23 of 2015, heard on 15.11.2017.
Judgment
Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 591-J of 2014 filed by Gulzar Ahmad appellant (against his conviction) and Murder Reference No. 23 of 2015 sent by the learned trial Court for confirmation of the death sentence of Gulzar Ahmad appellant or otherwise as both the above mentioned matters have arisen out of the same judgment dated 26.11.2014 passed, by learned. Addl. Sessions Judge, Shakargarh according to which the appellant was convicted and sentenced as under:-
U/S. 302(b), PPC
sentenced to death as Tazir with compensation of Rs. 5,00,000/- to the legal heirs of the deceased under Section 544-A, Cr.P.C. and in default whereof to further undergo six months S.I
U/S. 324, PPC
10-years R.I with fine of Rs. 10,000/-, in default thereof 3-months S.I.
U/S. 337-F(iii), PPC
3-years R.I. as Tazeer with daman of Rs. 10,000/- to be paid to the injured by the appellant.
Benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant. All the sentences of the appellant shall run concurrently.
in case FIR No. 28 dated 08.02.2013 under Sections 302/324/109, PPC, Police Station Saddar Shakargarh, District Narowal, whereas his co-accused namely Muhammad Ishaq has been acquitted.
2. The facts of the case have been stated by Shukar Din complainant (PW-4) (real father of Anayat Ali deceased and Saif Ali injured PW-5) in his statement before the learned trial Court which is hereby reproduced for narration of the facts:
“On 08.02.2013 at about 09.30 am, I along with my sons Inayat Ali, Saif Ali and Kashif Ali were sitting at my shop at Raiba Morre, Accused Gulzar Ahmad who is my son in law came there and exhorted that he would done to death all the brothers and started firing at my son Inayat Ali deceased with his .30-bore pistol. Fires hit on left side of deceased on his different parts. My son Inayat Ali fell down on the ground. My second son Saif Ali tried to rescue his brother, whereupon accused also made firing at him. He also received two fire shot and fell down on the ground. Third son Kashif Ali fled away from the scene and hid himself in the shop. Hearing the reports of firing and my alarm many people attracted at the scene. Accused decamped from the place of occurrence towards Shakargarh. Both the injured were shifted to THQ Shakargarh. After the medical examination and first aid both the injured were referred to Mayo hospital Lahore. Inayat Ali injured while way to Lahore, succumbed to the injuries. I, Riaz, Kashif, Saif Ali witnessed the occurrence. This occurrence was perpetrated on the abetment of Muhammad Ishaq.
Motive behind the occurrence was domestic dispute. I moved an application for the registration of the case Exh.PB which bears my signatures. I moved another application on 14.02.2013 before the I.O. with the narration that this occurrence was perpetrated on the asking of Ishaq. My statement was recorded by the I.O. on the said date.”
3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.C. was submitted in the trial Court.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 20.03.2014 against Gulzar Ahmad appellant and his co-accused namely Muhammad Ishaq (since acquitted) under Sections 302/324/109, PPC to which they pleaded not guilty and prosecution evidence was summoned.
5. The prosecution produced following witnesses during (the trial before the learned trial Court:
Umar Draz | P.W.1 |
Mukhtar | P.W.2 |
Muhammad Khalid | P.W.3 |
Shukar Din (complainant) | P.W.4 |
Saif Ali | P.W.5 |
Muhammad Riaz | P.W.6 |
Muhammad Arfaq | P.W.7 |
Shahid Hussain | P.W.8 |
Dr. Muhammad Tariq | P.W.9 |
Dr. Shahid Irfan | P.W.10 |
Muhammad Afzal ASI. | P.W.11 |
Muhammad Rafique | P.W.12 |
Mirza Tahir Tasleem Draftsman | P.W.13 |
Muhammad Hussain S.I | P.W.14. |
whereas P.Ws. Kashif Ali and Waqas 412/C were given up being unnecessary and while tendering certain documents i.e. reports of PFSA, Lahore Ex.P.S and Exh.PT closed its evidence.
6. Medical evidence was furnished by Dr. Muhammad Tariq (P.W. 9) and Dr.Shahid Irfan (PW-10). Dr. Muhammad Tariq Medical Officer THQ, Hospital conducted post-mortem examination on the dead body of Anayat Ali deceased and observed as under:
INJURY
1. A semi circler wound of 1 x 1. cm was present on the left side of abdomen in the interior axillary line, It is 6 cm of above the interior superior iliac spine. Margins were inverted with bleeding from the wound (entry wound)
2. A semi circular wound of 1.1 x 1.3 cm was present on the back of left side of chest. It is 2 cm on the left side from the mid line and 35 cm below the nap of neck. Margins were averted with bleeding from the wound, (exit wound).
3. A lacerated wound measuring 6x2 cm was present on the left side in mid axillary line in the mid of the chest. It was slanting wound.
OPINION:
After the post-mortem examination I was of the opinion the cause of death in this case was the injuries to the major blood vessels of chest and spleen which led to hemorrhage shock and death secondary to the fire-arm injuries. The injury were ante-mortem in nature and were caused by fire-arm and were sufficient to caused death in ordinary course of life.
After the post-mortem examination well stitched dead body, signed clothes, police papers and carbon copy of post-mortem report were handed over to Shahid 553/C. The carbon copy of post-mortem report is Exh.PE which is in my handwriting and it bears my signatures. The pictorial diagrams Exh.PE/1 and Exh.PE/2 also bears my signatures Exh.PF application for conducing post-mortem examination, Exh.PG injury statement, Exh.PH inquest report are also bears my signatures.”
Dr. Shahid Irfan, PW-10 firstly conducted medical examination on 08.02.2013 on the person of deceased Inayat Ali in injured condition and observed the following injuries:-
Injuries
1. 1 x 1 cm lacerated wound DNP on the left flank, with inverted margins., Blackening was present. No tattooing. Wound was profusely bleeding with corresponding holes on the Kameez and Banyan.
2. A lacerated wound measuring 6 x 2 cm on left mid axillary line. A kissing wound which was bleeding.
3. A lacerated wound measuring 1 x 1 cm on back 2 cm lateral outer, on left side from midline. Corresponding hole present. Wound was profusely bleeding DNP. Injured was referred to Mayo Hospital Lahore after surgeons consultation resuscitation and after the haemodylamically stable. Final opinion would be given after receiving the treatment, operation notes from concerned hospital.
There was no possibility of fabrication and probable duration of injuries were within three hours and injuries were caused by fire-arm. Exh.PJ carbon copy of original medial legal certificate which is in my handwriting and bears my signatures. I delivered the copy of MLC to Muhammad Shahid 553/LHC. Injury statement Exh.PK is also bears my signatures.
On the same day, Dr. Shahid Irfan (PW-10) medically examined Saif Ali injured (PW-5) and observed the following injuries on his person:
1. A lacerated wound 1 x 1 cm. 2 cm above anterior superior iliac, supine on its left side. Margins were inverted with bleeding, blacking were present DNP.
2. A lacerated wound 3x2 cm on lateral side of left hip. 7 cm away from Injury No. 1 which was profusely bleedings.
OPINION
Injured was referred to Mayo Hospital Lahore after surgeons consultation. After receiving the operational notes I have given the final opinion and declared the injuries as such.
Vide reference from operational notes, received from Mayo hospital Lahore dated 18.08.2013, 1.5 cm x 1.5 cm superficial wound in upper outer quadrant of left buttock. .5 x .5 cm , 6 cm blow superior iliac supine superficial puncture wound in upper letter part of left thigh, so injury 1 and 2 declared as Ghair Jafia Muthlimiah. Corbin copy of. MLC of Saif Ali is in my handwriting and bears my signatures which was handed over to Muhammad Shahid 553/LHC. Copy of MLC, with operation notes Exh.PL/1 is also in my handwriting and bears my signatures. Injury statement of Saif Ali also bears my signatures.
7. On the other hand, statements of Gulzar Ahmad appellant and his co-accused namely Muhammad Ishaq (since acquitted) were recorded under Section 342, Cr.P.C. in which they refuted the allegations leveled against them by the prosecution. Gulzar Ahmad appellant neither opted to appear as witness under Section 340(2), Cr.P.C. nor produced any defence evidence. In reply to the question “Why this case against you and why the PWs deposed against you? Gulzar Ahmad appellant replied as under:
“Since my marriage I was living with my in-laws and there were minor skirmishes between the spouses, resulted into difference with the in-laws, therefore, I and my wife decided to live separately in my own house. Complainant party was not happy with our this decision. Owing to that reason complainant falsely involved me in this case. I have not committed the murder of Inayat Ali deceased even I have not injured Saif Ali. All the PWs are related inter-se, were not present at the place of occurrence and have deposed falsely”.
8. After conclusion of the trial, learned trial Court while acquitting co-accused namely Muhammad Ishaq, convicted the appellant with above stated sentence. Hence this appeal.
9. Learned counsel for Gulzar Ahmad appellant has contended that:-
i. the judgment of the trial Court dated 26.11.2014 is against law and facts and is liable to be set-aside;
ii. it is submitted that the story of the prosecution is improbable and not believable;
iii. it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial Court wrongly convicted appellant in surmises and conjectures;
iv. and lastly submitted for the acceptance of the appeal of the present appellant and his acquittal.
10. On the other hand, learned DPP assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that the prosecution has proved its case beyond any shadow of doubt against Gulzar Ahmad appellant with solid evidence and pray ed for the dismissal of the present appeal.
11. We have heard the learned counsel for the appellant as well as learned DPP assisted by learned counsel for the complainant and perused the record.
12. The detail of prosecution case has been given in para 2 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.
13. According to the FIR, occurrence took place on 08.02.2013 at about 9.30 am whereas FIR was registered on the same day i.e. on 08.02.2013 at 12.45p.m., on the written application Exh.P.B made by Shukur Din complainant P.W.4, (real father of Inayat Ali deceased and Saif Ali injured PW-5). Place of occurrence is passage in front of the shop of complainant Shukur Din complainant PW-4. Prosecution has introduced following accused in this case:-
1. Muhammad Ishaq | (This accused has been acquitted by the learned trial Court through the impugned judgment and the complainant/State has not filed any appeal against his acquittal, as stated by learned DPP.) |
2. Gulzar Ahmad | (Appellant) |
It is important to mention here that appellant-Gulzar Ahmad is son in law/داماد of Shukur Din complainant PW-4. Shukar Din complainant (PW-4) (real father of Anayat Ali deceased and Saif Ali injured PW-5), Saif Ali injured PW-5 and Muhammad Riaz PW-6 claim themselves to be the eye-witnesses of the occurrence. They stated in their statements (examination-in-chief) to the extent of role of Gulzar Ahmad appellant that on 08.02.2013 at about 9.30 am, Gulzar Ahmad appellant came at the shop of Shukur Din-complainant PW-4 and started firing with his pistol 30-bore upon Anayat Ali deceased which hit on different parts of his body. Saif Ali injured PW-5 tried to rescue his brother Anayat Ali deceased whereupon appellant also made firing upon him who received two fire shots. All these three PWs/eye-witnesses have absolutely no grudge or ill-will to falsely implicate Gulzar Ahmad appellant in the present case. They were cross-examined at length but their evidence could not be shaken during the process of cross-examination to the extent of Gulzar Ahmad appellant. They corroborated one another on all material aspects of the case to the extent of Gulzar Ahmad appellant. They have established their presence at the time of occurrence at the place of occurrence with their stated reasons. Their evidence is straightforward, trustworthy and confidence inspiring.
14. Medical evidence has been furnished by Dr. Muhammad Tariq PW-9 who conducted post-mortem examination on the dead body of Inayat Ali deceased and Dr. Shahid Irfan PW-10 who conducted medical examination on the persons of Anayat Ali deceased in injured condition and Saif Ali injured PW-5, detail of which has been given in para 6 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition. However, both the medical officers have observed fire-arm injuries on the person of Inayat Ali deceased as well as on the person of Saif Ali injured PW-5 attributed to Gulzar Ahmad appellant which were ante-mortem in nature and were sufficient to cause death in ordinary course of nature, therefore, we are of the view that medical evidence has fully supported the ocular account furnished by the above mentioned eye-witnesses.
15. Shukar Din complainant (PW-4) (real father of Anayat Ali deceased and Saif Ali injured PW-5) stated in his statement (examination-in-chief) that motive behind the occurrence was domestic dispute. Shukur Din complainant PW-4 stated in his cross- examination that domestic dispute was between accused Gulzar Ahmad and his daughter Yasmeen who was wife of the appellant. Admittedly Yasmin real daughter of Shukur Din Complainant PW-4 wife of the appellant has not been produced to establish the motive. Further Saif Ali injured PW-5 real son of Shukur Din PW-4 while making his statement (examination in chief) before the trial Court did not utter even a single word regarding motive. Considering above, we are of the view that prosecution has failed to prove the motive.
16. Muhammad Hussain S.I/I.O of this case (PW-14) stated in his statement (examination-in-chief) that on 15.02.2013 he arrested Gulzar Ahmad appellant who on 19.02.2013 during the interrogation disclosed and got recovered pistol 30- bore P5 from his residential house which was taken into possession through recovery memo Exh.PM. Perusal of report of Punjab Forensic Science Agency Exh-PT shows that crime empties recovered from the place of occurrence, received in the office of PFSA on 15.02.2013 on the same day when appellant was arrested as mentioned above. Considering this, possibility of manufacturing of the crime empties before their dispatch to the said laboratory to obtain positive report cannot be ruled out of consideration, hence, positive report Exh.P.T regarding matching of crime empties with the weapon of offence is not believable and is hereby discarded.
17. Adverting to the defence plea of Gulzar Ahmad appellant, he stated in answer to question “why this case against you and why the PWs made statements to involve you?” as under:-
“Since my marriage I was living with my in-laws and there were minor skirmishes between the spouses, resulted into difference with the in-laws, therefore, I and my wife decided to live separately in my own house. Complainant party was not happy with our this decision. Owing to that reason complainant falsely involved me in this case. I have not committed the murder of Inayat Ali deceased even I have not injured Saif Ali. All the PWs are related inter-se, were not present at the place of occurrence and have deposed falsely.”
Gulzar Ahmad appellant has neither opted to appear as a witness under Section 340(2), Cr.P.C. nor produced any defence evidence. Considering above, it is concluded that Gulzar Ahmad appellant has failed to prove his defence plea and learned trial Court has rightly discarded his defence plea with sufficient reasons.
18. In view of the above discussion, if evidence of recovery of Pistol 30-Bore P-5 and motive is excluded from consideration even then, the prosecution has proved its case beyond shadow of doubt against Gulzar Ahmad appellant through ocular account furnished by the eye-witnesses mentioned above supported by medical evidence discussed earlier.
19. Coming to the quantum of sentence, we have noted some mitigating circumstances in this case. Firstly, positive report of Punjab Forensic Science Agency, Lahore regarding matching of crime empties with the weapon of offence has been discarded with the reasons mentioned in Para 16 of this judgment and recovery of pistol 30-bore P5 has become inconsequential, secondly story of the prosecution regarding motive has also been disbelieved by us with the reasons mentioned in para 15 of this judgment. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which resulted into present unfortunate incident. It is well recognized principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. In this regard we respectfully refer the case titled “Mir Muhammad alias Miro vs. The State” (2009 SCMR 1188) wherein the Hon’ble Supreme Court of Pakistan has observed at page 1191 as under:
“It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence.”
20. Further reliance is placed on case reported as “Zafar Iqbal and others v. The State” (2014 SCMR 1227) in which Hon’ble Supreme Court of Pakistan has observed at pages 1235 & 1238 as under:
“The question of awarding of sentence is required by law to be adverted to in every criminal case and it is the duty of the Court to always consider this aspect of the matter while awarding sentence. In the present case, trial Court has awarded death sentence to the appellants, which has been maintained by the High Court and the murder reference has been answered in positive. On examination of the record certain facts have come to light, which needs to be given serious consideration and they probably have in them material on the basis of which the case of mitigation in sentences could be found. Although in the ocular account, it is alleged that appellant Iftikhar has fired with a rifle at Jaffar Hussain deceased on his head and he has also fired at Abdaal Hussain deceased on the left side of his chest but the prosecution has not been able to secure or recover any fire-arm from this appellant. At the same time appellant Asghar Iqbal is alleged to have fired with his rifle at Abdaal Hussain deceased on his left ear with his rifle. Although 7 mm rifle was recovered on the pointation of this appellant but no recovery of empty of this rifle was made from the place of incident and there is no report of Forensic Science Laboratory (FSL) of connecting the recovered 7 mm rifle with the two crime empties recovered from the place of incident. It is also noted that the real motive as propounded in the prosecution version was against deceased Jaffar Hussain in that he was the one, who has beaten appellant Iftikhar. The motive being against deceased Jaffar Hussain, it is not understandable as to why the appellants after having murdered Jaffar Hussain will proceed covering distance and murder Jaffar Hussain’s two sons, namely, Abdaal Hussain and Abrar Hussain. This will go to show that something very obnoxious may have happened at the place of occurrence of which neither the prosecution has given any evidence nor the same has come out from the side of defence. Thus the immediate circumstance or cause for the happening of the events, which culminated into the murder of three persons namely, Jaffar Hussain, Abdaal Hussain and Abrar Hussain are altogether shrouded in mystery.”
“All the above factors in the light of the law laid down by this Court as discussed above lead us to the conclusion that there are sufficient extenuating circumstances, on the basis of which the appellants could not be made liable to the maximum punishment provided under Section 302(b), PPC, rather the ends of justice would be met, if their death sentence is converted into imprisonment for life. While maintaining the conviction of the appellants and modifying the sentence from death to life imprisonment and maintaining other sentences with benefit of Section 382-B, Cr.P.C., this appeal is partially allowed in the above terms”.
21. Considering above, conviction of Gulzar Ahmad appellant in offence under Section 302 (b), PPC for committing the murder of Anayat Ali deceased is maintained but his sentence is altered from death to imprisonment for life. The compensation and sentence in default whereof awarded by the trial Court through the impugned judgment are maintained and upheld. Conviction and sentences of the appellant on other heads in offences under Sections 324 and 337-F(iii), PPC awarded by the trial Court are maintained. All these sentences of the appellant shall run concurrently. Benefit of Section 382-B, Cr.P.C. is given to Gulzar Ahmad appellant.
22. Consequently, with the above said modification in the impugned judgment, Criminal Appeal No. 591-J of 2014 filed by Gulzar Ahmad appellant is hereby dismissed. Murder Reference No. 23 of 2015 is answered in NEGATIVE and death sentence of Gulzar Ahmad appellant is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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