PLJ 2021 Cr.C. (Note) 56
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Sentence--Challenge to--Quantum of sentence--Mitigating circumstances--Recovery of weapon--No allegation of repetition of fire-arm injury--Therefore, in our view death sentence awarded to appellant is harsh one--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--Considering above, 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--Benefit of Section 382-B, Cr.P.C. is given to appellant--Appeal was dismissed. [Para 19 & 21] A & B
M/s. Nasir Mehboob Tiwana and Ch. Nasir Hussain, Advocates for Appellant.
Raja Faisal Hayat Janjua, Advocate for Respondents/ Complainant.
Mr. Tariq Javed, DPP for State.
Date of hearing: 10.5.2018.
PLJ 2021 Cr.C. (Note) 56
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
versus
STATE etc.--Respondents
Crl. A. No. 913/J & M.R. No. 361 of 2015, heard of 10.5.2018.
Judgment
Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 913/J of 2015 filed by Muhammad Islam appellant (against his conviction) and Murder Reference No. 361 of 2015 sent by the learned trial Court for confirmation of death sentence of Muhammad Islam (appellant) or otherwise as both the above mentioned matters have arisen out of the same judgment dated 06.10.2015 passed by learned Sessions Judge, Khushab according to which the appellant was convicted and sentenced as under:
Muhammad Islam appellant
U/S. 302(b), PPC | Sentenced to death with compensation of Rs. 10,00,000/-to the legal heirs of the deceased under Section 544-A, Cr.P.C. which shall be recoverable as arrears of land revenue and in default whereof to undergo S.I. for six months. |
in case FIR No. 84 dated 30.06.2014 under Section 302, PPC, Police Station Naushehra, District Khushab.
2. The facts of the case have been stated by Hafiz Habib Elahi complainant P.W.5 (real son of Mst. Ishra Bibi deceased) in his statement before the learned trial Court which is hereby reproduced for narration of the facts:
"I am electrician at Lahore and on 30.6.2014, 1st Ramzan-ul-Mubarak I came at Naushera to attend the funeral ceremony of my Chachi Mst. Rasool Bibi. At about 3.00 p.m. her funeral ceremony was completed. After the funeral ceremony the dead body of my Chachi Mst. Rasool Bibi was kept at the roadside for seeing of women folks of the village. Meanwhile accused Mohammad Islam present in the Court armed with rifle .7-MM came there and made a fire upon my mother Mst. Ishra Bibi on her right flank and made exit through the left flank. The occurrence was witnessed by Fazal Elahi and Marghoob Elahi who were present there. Accused while brandishing his rifle fled away towards the southern side of the mountain. We took our mother to Civil Hospital Naushera in injured condition. Upon reaching the hospital, she succumbed to the injuries. While leaving Fazal Elahi and Marghoob Elahi alongwith the dead body I went to police station to report the matter. I made statement before Basharat Hussain S.I on the basis of which FIR Ex.PF was recorded which was read over and explained to me and I put my signatures on it as token of its correctness.
Motive behind the occurrence was that the accused and his father had a suspicion that the mother of accused Mst. Nasreen Akhtar had filed a suit for dissolution of marriage at Sialkot on the asking of my mother Ishra Bibi. Due to that grudge accused murdered my mother."
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 28.11.2014 against the appellant under Section 302, PPC to which he pleaded not guilty and prosecution evidence was summoned.
5. The prosecution produced following witnesses during the trial before the learned trial Court:
Muhammad Islam | P.W.1 |
Mirza Muhammad Saeed Draftsman | P.W.2 |
Muhammad Mumtaz | P.W.3 |
Lady Dr. Safoora | P.W.4 |
Hafiz Habib Elahi (complainant) | P.W.5 |
Marghoob Elahi | P.W.6 |
Liaqat Hayat | P.W.7 |
Basharat Hussain S.I. | P.W.8 |
Habib Ullah | P.W.9 |
whereas P.Ws. namely Fazal Elahi and Mohammad Yaqoob were given up being unnecessary and while tendering certain documents i.e. Ex.P.A. to Ex.P.M closed its evidence.
6. Medical evidence was furnished by Lady Dr. Safoora P.W.4 who conducted post-mortem examination on the dead body of Mst. Ishra Bibi deceased and observed as under:
"INJURIES
1-A. A fire-arm wound of entry inverted margins 1 x 1 cm. No blackening, no burning seen, wound 7 cm above and lateral to the right iliac spine. Corresponding hole in Dhoti seen. Dhoti profusely bloodstained and blooding coming out of the wound.
1-B. A fire-arm wound of exit 1 x 1 cm everted margins on left lumber region outer abdomen at left iliac spine.
Corresponding hole in Dhoti present.
OPINION.
Ante-mortem Injury No. 1 causing damage to large and small gut and mesentery leading to profuse haemorrhage, leading to haemorrhage and shock and leading to cardio pulmonary arrest, were sufficient in ordinary course of nature to cause death.
Probable time between injuries and death was 10 minutes and between death and post-mortem two hours."
7. On the other hand, statement of the appellant was recorded under Section 342, Cr.P.C. in which he refuted the allegations levelled against him by the prosecution. The appellant has not opted to appear as witness under Section 340(2), Cr.P.C. However, he produced Muhammad Yaqoob D.W. 1 in his oral defence evidence. No documentary defence evidence has been produced by him. In reply to the question "Why this case against you and why the PWs deposed against you?" Muhammad Islam appellant replied as under:
"The complainant got registered a false case against me. The reason to implicate me in this case is that Mst. Rukhsana wife of Fazal Elahi was abducted by Mian Mohammad. The compromise proceeding were in progress between the complainant and the PW Fazal Elahi and Marghoob Elahi but I was hurdle in that compromise. As Mian Mohammad offered a huge amount of money to complainant and the PWs of this case to get compromise which could not be effected due to my interference. Due to that grudge the complainant and PWs have falsely implicated me in this case."
8. After conclusion of the trial, learned trial Court convicted the appellant with above stated sentence. Hence this appeal.
9. Learned counsel for the appellant has contended that:--
i. the judgment of the trial Court dated 06.10.2015 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 the appellant with solid evidence and prayed 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 complainant and perused the record.
12. The detail of prosecution case has already 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 30.06.2014 at 3:00 p.m. whereas FIR was registered on the same day i.e. 30.06.2014 at 3:50 p.m. on the statement Ex.P.F. made by Hafiz Habib Elahi complainant P.W.5, real son of Mst. Ishra Bibi deceased, who was murdered on the passage. Hafiz Habib Elahi complainant P.W.5 being eye-witness stated in his statement (examination-in-chief) before the learned trial Court as under:
"I am electrician at Lahore and on 30.6.2014, 1st Ramzan-ul-Mubarak I came at Naushera to attend the funeral ceremony of my Chachi Mst. Rasool Bibi. At about 3.00 p.m. her funeral ceremony was completed. After the funeral ceremony the dead body of my Chachi Mst. Rasool Bibi was kept at the roadside for seeing of women folks of the village. Meanwhile accused Mohammad Islam present in the Court armed with rifle .7-MM came there and made a fire upon my mother Mst. Ishra Bibi on her right flank and made exit through the left flank. The occurrence was witnessed by Fazal Elahi and Marghoob Elahi who were present there. Accused while brandishing his rifle fled away towards the southern side of the mountain. We took our mother to Civil Hospital Naushera in injured condition. Upon reaching the hospital, she succumbed to the injuries. While leaving Fazal Elahi and Marghoob Elahi alongwith the dead body I went to police station to report the matter, I made statement before Basharat Hussain S.I on the basis of which FIR Ex.PF was recorded which was read over and explained to me and I put my signatures on it as token of its correctness."
Marghoob Elahi P.W. 6 has supported his evidence. Both these eye-witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated each other on all material aspects of the case. They have also 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 Lady Dr. Safoora P.W.4, whose details are mentioned in Para 6 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition. However, medical officer (Lady Dr. Safoora P.W.4) has observed fire-arm injury on the person of Mst. Ishra Bibi deceased attributed to Muhammad Islam appellant which was ante-mortem in nature and was 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 above mentioned eye-witnesses.
15. Hafiz Habib Elahi complainant P.W. 5 stated regarding motive of the occurrence that Muhammad Islam appellant and his father Muhammad Ayub had suspicion that Mst. Naseem Akhtar (mother of Muhammad Islam appellant) had filed a suit for dissolution of marriage at Sialkot on the asking of Mst. Ishra Bibi deceased (mother of Hafiz Habib Elahi complainant P.W.5). Learned DPP submits that Mst. Ishra Bibi deceased was neither witness of the suit for dissolution of marriage filed by Mst. Naseem Akhtar (mother of Muhammad Islam appellant) nor she was pursuing the said case. Considering above, we are of the view that the prosecution has failed to prove the motive.
16. Liaqat Hayat (recovery witness) P.W. 7 stated in his statement (examination-in-chief) that on 08.07.2014, Muhammad Islam appellant during interrogation disclosed and got recovered rifle 7-mm P-4 from bushes of graveyard near Doctor Wali Mosque, Naushera, which is an open place and accessible to everyone, hence, this recovery is not believable. Even otherwise, recovery of rifle 7-mm P-4 is inconsequential in the present case as learned DPP submits that no crime empty has been recovered from the place of occurrence.
17. Adverting to the defence plea of Muhammad Islam appellant, in reply to the question "Why this case against you and why the PWs deposed against you?" he replied as under:
"The complainant got registered a false case against me. The reason to implicate me in this case is that Mst. Rukhsana wife of Fazal Elahi was abducted by Mian Mohammad. The compromise proceeding were in progress between the complainant and the PW Fazal Elahi and Marghoob Elahi but I was hurdle in that compromise. As Mian Mohammad offered a huge amount of money to complainant and the PWs of this case to get compromise which could not be effected due to my interference. Due to that grudge the complainant and PWs have falsely implicated me in this case."
Muhammad Islam appellant has not opted to appear as witness under Section 340(2), Cr.P.C. He produced Muhammad Yaqoob D.W.1 in his oral defence evidence. No documentary defence evidence has been produced by the appellant. Considering above, it is concluded that the 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, we are of the view that if evidence of motive and recovery of rifle 7-mm P-4 is excluded from consideration, even then the prosecution has proved its case beyond shadow of doubt against Muhammad Islam appellant through the evidence discussed earlier.
19. Coming to the quantum of sentence, we have noted some mitigating circumstances. Firstly, recovery of rifle .7-mm P-4 has been discarded by us with the reasons mentioned in Para 16 of this judgment, secondly single fire-arm injury has been attributed to Muhammad Islam appellant on the person of Mst. Ishra Bibi deceased and there is not allegation of repetition of fire-arm injury against him and thirdly motive story has been disbelieved by us with the reasons mentioned in Para 5 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. Therefore, in our view death sentence awarded to Muhammad Islam appellant is harsh one. 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. Reliance is placed on case titled "Mir Muhammad alias Miro vs. The State" (2009 SCMR 1188) wherein the Hon'ble Supreme 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).
21. Considering above, conviction of Muhammad Islam appellant in offence under Section 302(b), PPC for committing the murder of Mst. Ishra Bibi deceased is maintained but his sentence is altered from death to imprisonment for life. The compensation and sentence in default whereof awarded by the learned trial Court through the impugned judgment are maintained and upheld. Benefit of Section 382-B, Cr.P.C. is given to Muhammad Islam appellant.
22. Consequently, with the above said modification in the impugned judgment, the instant criminal appeal is hereby dismissed. Murder Reference is answered in NEGATIVE and death sentence of Muhammad Islam (appellant) is NOT CONFIRMED.
(R.A.) Appeal dismissed
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