PLJ 2021 Cr.C. 1511 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-i-amd--Benefit of doubt--Sentence altered--Modification in impugned judgment--Appellant has denied his involvement in present occurrence in his statement recorded under Section 342, Cr.P.C. and stated that he is innocent--He did not opt to appear as witness u/S. 340(2), Cr.P.C. and also did not produce any defence evidence to prove his defence plea which has rightly been discarded by trial Court with sufficient reason--If evidence of motive and recovery is excluded from consideration, even then prosecution has proved its case beyond shadow of doubt against appellant through evidence discussed earlier--Coming to quantum of sentence, we have noted some mitigating circumstances--Positive report of PFSA has been discarded with reasons mentioned in para 10 of this judgment, secondly single fire shot has been attributed to appellant thirdly motive has been disbelieved by Court with reasons mentioned in para 9 of this judgment--Held: 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, 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 u/S. 302), PPC for committing murder of deceased but his sentence is altered from death to imprisonment for life--Appeal was dismissed with modification in sentence. [P. 1516] A, B, C & D
2009 SCMR 1188 and 2014 SCMR 1227.
M/s. Sheikh Muhammad Raheem, Muhammad Ajmal Kanju and Syed Athar Hassan Shah Bokhary, Advocates with Appellant.
Mr. Asif Kamal Noon, Prosecutor General for Complainant /State.
Date of hearing: 15.6.2021.
PLJ 2021 Cr.C. 1511 (DB)[Lahore High Court, Multan Bench]Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.FAZAL HUSSAIN SHAH and anothers--AppellantsversusSTATE and another--RespondentsCrl. A. Nos. 974, 812 & M.R. No. 113 of 2016, heard on 15.6.2021.
Judgment
Sadaqat Ali Khan, J.--Appellants (Fazal Hussain Shah and Qaiser Shah) along with their Co-accused i.e. Ramzan Shah, Iqbal Shah and Manzoor Shah (since acquitted) have been tried by learned trial Court in case FIR No. 79 dated 23.02.2014 offences under Sections 302, 324, 337-F(V), 148, 149, PPC registered at Police Station Saddar Kehror Pacca, District Lodhran and were convicted and sentenced vide judgement dated 19.09.2016 as under:-
Fazal Hussain Shah (appellant)
u/S. 302(b)PPC Sentenced to DEATH as Tazir’ for committing Qatl-i-Amd of Nasir Shah (deceased) with compensation of Rs. 2,00,000/- payable to ,legal heirs of the deceased u/S. 544-A Cr.P.C. which was ordered to be recovered as arrears of land revenue in default whereof to further undergo simple imprisonment for 6-months.
Benefit of Section 382-B Cr.P.C. was also extended in his favour.
Qaiser Shah (appellant)
u/S. 324, PPC Sentenced to imprisonment for 5-years R.I, for attempting to commit Qatl-i-Amd of Fayyaz Shah/Fayyaz Hussain Shah (injured PW-8) with fine Rs. 50,000/- in default whereof to further undergo simple imprisonment for 6-months.
u/S. 337-F(v), Sentenced to imprisonment for 5-years R.I,
PPC for causing injuries to Fayyaz Shah/Fayyaz Hussain Shah (injured PW-8) with Daman Rs. 1,00,000/- payable to the injured.
Sentences of the appellant (Qaiser Shah) were ordered to be run concurrently with benefit of Section 382-B, Cr.P.C.
2. Appellants have filed these criminal appeals against their convictions and learned trial Court has sent Murder Reference for confirmation of death sentence of the appellant (Fazal Hussain shah) or otherwise, which are being decided through this single judgment.
3. Brief facts of the case have been stated by Qaim Ali Shah (PW-10) in his statement before the learned trial Court, which is hereby reproduced as under for narration of the facts:
“On 23.02.2014 around 3:30 noon I alongwith Nasir Shah and Fayyaz Shah were going for shopping as we reached near the house of Raziq Nai at Mouchi Wala. Suddenly accused persons (present in the Court) Fazal Shah, Qaiser Shah, Manzoor Shah, Iqbal Shah and Ramzan Shah aggressively approached from the front and Fazal Shah raised lalkara that let us teach a lesson to Nasir Shah for exchange of hot words with us. Fazal Shah armed with riffle, Qaiser Shah armed with riffle, Iqbal Shah, Manzoor Ahmad and Ramzan Shah armed with sotas. Fazal Shah made a direct gunshot at Nasir Shah which hit Nasir Shah under his neck on the right side of the chest. Qasir Shah made a direct gun shot at Fayyaz Shah which hit his left hand on the fingers. He fired second shot which hit Fayyaz Shah on his right thigh. Nasir Shah and Fayyaz Shah fell on the spot. We rescued and escorted the injured persons to the hospital. On our way to hospital Nasir Shah succumbed to injuries.
The motive behind the occurrence was that the accused Fazal Shah had altercation with Nasir Shah some time before this occurrence.
I left Shabir Shah, Irshad Shah and Baqir Shah near the dead body for safely and left for the police station for the registration of the crimina case. On my way near City Chowk Kehror Pacca I met Falaksher SI who recorded my statement as Ex.PK. I signed the same as Ex.PK/1 as a token of its correctness.”
4. Arguments heard, record perused.
5. Nasir Shah was done to death, Fayyaz Hussain Shah (FW-8) sustained injuries during the occurrence took place in the street on 23.02.2014 at 3:30 p.m., FIR was lodged on the same evening at 4:40 p.m. (23.02.2014) on the statement of Qaim Ali Shah (PW-10 /father of Nasir Shah deceased), who, Muhammad Irshad Shah (PW-9) and Fayyaz Hussain Shah (PW-8) claim themselves to be the eye-witnesses of the occurrence. The role of Qaiser Shah (appellant) is distinguishable from that of Fazal Hussain Shah (appellant), firstly we would like to take up the case of Qaiser Shah (appellant) who has not been attributed any injury on the person of Nasir Shah (deceased) and has not been convicted in common intention for the murder of Nasir Shah (deceased), his co-accused i.e. Ramzan Shah, Iqbal Shah and Manzoor Shah who were also not attributed any injury on the person of Nasir Shah .(deceased) have been acquitted through the impugned judgment. Appellant (Qaiser shah) is deemed to be acquitted in common intention as prosecution has failed to prove common intention between the appellants also. Appellant (Qaiser shah) has been convicted under Section 324, PPC with the sentence of 5-years R.I. with fine of Rs. 50,000/- in default of fine 6-months S.I. and under Section 337-F(v), PPC with sentence of 5-years R.I. and Daman Rs. 1,00,000/- for causing fire-arm injuries on the person of Fayyaz Hussain Shah (injured PW-8) supported by medical evidence. Learned counsel for the appellant (Qaiser shah) at the very outset submits that he does not press the conviction of the appellant (Qaiser shah) in offences under Sections 324 and 337-F(v), PPC but has requested for the reduction of the sentence of imprisonment and instalments of Daman. Considering the peculiar circumstances of this case discussed above and agony of trial faced by the appellant (Qaiser shah) while maintaining the conviction of the appellant (Qaiser shah) in offences under Sections 324 and 337-F(v), PPC, his sentences are reduced from 5-years R.I. to 3-years R.I. in each offence. Fine of Rs. 50,000/- in offence under Section 324, PPC is also maintained but sentence in default of fine is reduced from 6-months to 1-month S.I. Daman
Rs. 1,00,000/- is also maintained but appellant (Qaiser shah) is directed to deposit the same in trial Court within a period of 1-year in equal instalments starting from 1st July, 2021 in view of Section 337-Y, PPC failing which he shall be kept in jail and dealt with in the same manner as if was sentenced to simple imprisonment Until Daman amount is paid in full (provided in the above section). Fayyaz Hussain Shah (injured PW-8) would be at liberty to receive the same from the trial Court on its realization in accordance with law. All the sentences of the appellant (Qaiser shah) shall run concurrently with benefit of Section 382-B, Cr.P.C. Appellant (Qaiser shah) is present on bail, his bail bonds shall remain intact during above said period.
6. With the above said modification in the impugned judgment, this criminal appeal filed by appellant (Qaiser shah) is hereby disposed of.
7. So far as Fazal Hussain Shah (appellant) is concerned, all the three witnesses i.e. Fayyaz Hussain Shah (PW-10), Muhammad Irshad Shah (PW-9) and Qaim Shah (PW-IO) have specifically stated in their statements before learned trial Court that Fazal Hussain Shah (appellant) made fire shot with his rifle hitting on the right side of the chest of Nasir Shah (deceased). These three witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated one another 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.
8. Medical evidence has been furnished by Dr. Ehsan Ali
(PW-6) who during post-mortem examination on the dead body of Nasir Shah (deceased) observed fire-arm injury on his person attributed to appellant (Fazal Hussain shah) which was ante-mortem in nature and was sufficient to cause death in ordinary course of nature, therefore, medical evidence has fully supported the ocular account furnished by the above mentioned eye-witnesses.
9. Motive of the occurrence narrated by Fayyaz Hussain Shah (PW-8) and Muhammad Irshad Shah (PW-9) before learned trial Court is that accused persons (including the accused who have been acquitted discussed above) had altercation with Nasir Shah (deceased) sometime before this occurrence. Contrary to this, Qaim Shah (PW-10) stated that Fazal Shah (appellant) had altercation with Nasir Shah sometime before the occurrence but all the three witnesses did not give any Specific time, date and place of altercation, hence, this motive is not believable.
10. Falak Sher, SI (pw-13) stated in his statement before learned trial Court that on 21.03.2014, he arrested Fazal Hussain Shah (appellant) who whereafter got recovered rifle 8MM (p-6) from his house. Report (Exh. PP) of Punjab Forensic Science Agency shows that crime empties recovered from the place of occurrence were received in the office on 17.04.2014 after the arrest of the appellant Fazal Hussain Shah (21.03.2014), in such eventuality, possibility of manufacturing of the crime empties before their dispatch to obtain positive report cannot be ruled out, hence, positive report of PFSA (Exh. PP) in this respect is not believable which is hereby discarded.
Description: BDescription: A11. Fazal Hussain Shah (appellant) has denied his involvement in the present occurrence in his statement recorded under Section 342, Cr.P.C. and stated that he is innocent. He did not opt to appear as witness under Section 340(2), Cr.P.C. and also did not produce any defence evidence to prove his defence plea which has rightly been discarded by learned trial Court with sufficient reason. In view of above if evidence of motive and recovery is excluded from consideration, even then the prosecution has proved its case beyond shadow of doubt against appellant (Fazal Hussain Shah) through the evidence discussed earlier.
Description: DDescription: C12. Coming to the quantum of sentence, we have noted some mitigating circumstances. Positive report of PFSA (Exh.( pp) has been discarded with the reasons mentioned in para 10 of this judgment, secondly single fire shot has been attributed to the appellant (Fazal Hussain shah), thirdly motive has been disbelieved by us with the reasons mentioned in para 9 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. Reliance is placed on case titled “Mir Muhammad alias Miro vs. The State” (2009 SCMR 1188) and case titled “Zafar Igbal and others v. The State” (2014 SCMR 1227).
13. Considering above, conviction of appellant (Fazal Hussian shah) in offence under Section 302(b), PPC for committing the murder of Nasir Shah (deceased) is maintained but his sentence is altered from
death to imprisonment for life. The compensation and sentence in default whereof awarded by learned trial Court are also maintained. Benefit of Section 382-B, Cr.P.C. is extended to him.
14. Consequently, with the above said modification in the impugned judgment, instant Criminal Appeal filed by the appellant (FazaL Hussain shah) is hereby dismissed. Murder Reference is answered in NEGATIVE and death sentence of Fazal Hussain Shah (appellant) is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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