: (i) motive set up by prosecution has not been believed by us;
(ii) recovery of .12 bore repeater gun (P.2) at instance of (appellant) has not been proved; and
(iii) said appellant made only one fire shot at deceased and there was no allegation of repetition of fire against him-
PLJ 2021 Cr.C. (Lahore) 328 (DB)
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
versus
STATE and another--Respondents
Crl. A. No. 627 & M.R. No. 229 of 2017, heard on 5.11.2020.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Quantum of sentence--Modification in sentence--If any, in reporting crime to police was not conscious or deliberate as in such like cases first and foremost priority of kith and kin of injured is to rush for medical treatment instead of reporting matter to police--In FIR and before trial Court, it was case of prosecution that (appellant) made a fire with .12 bore repeater gun which landed on chest and left hand of deceased--Appellant made second fire shots, hitting (PW.2) on his left leg and (PW.3) on left side of his abdomen--All PWs while appearing before trial Court clarified situation with regard to injury sustained by injured (PW.2) that fire was hit on his right leg--Doctor who conducted post-mortem examination of dead body of deceased and Doctor, who medically examined both injured, appeared before trial Court as PW.12 and PW.15 respectively and furnished medical evidence--Injuries caused by appellants are available in post-mortem examination report and medico-legal reports--Ocular account is fully supported by medical evidence--Even if evidence of motive and recoveries of .12 bore repeater gun (P.2) at instance of appellant and .12 bore single barrel gun (P.3) at instance of appellant are excluded from consideration, there is sufficient incriminating evidence on record against appellants in form of straightforward and confidence inspiring ocular account furnished by complainant (PW.1), injured PWs fully supported by medical evidence i.e. statements of Doctor (PW.12) and (PW.15) to maintain their convictions under Sections 302(b), 324, 337-C and 337-F(i), PPC, which are accordingly maintained--Hence, instant appeal to extent of appellant is dismissed in toto--However, it is not a case of capital punishment in respect of (appellant) because of reasons: (i) motive set up by prosecution has not been believed by us; (ii) recovery of .12 bore repeater gun (P.2) at instance of (appellant) has not been proved; and (iii) said 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, Court alter sentence of (appellant) from death to imprisonment for life--Amount of compensation and punishment in default whereof, as ordered by trial Court, are maintained--Benefit of Section 382-B, Code of Criminal Procedure is extended to both appellants--Appeal in hand to extent of (appellant) stands dismissed with above modification in quantum of sentence--Appeal was dismissed.
[Pp. 332, 333, 334 & 335] A, B, C, D, E & F
2009 SCMR 1188 and 2014 SCMR 1227.
Mr. Babar Hussain Warraich, Advocate appointed as Defence counsel at State expense for Appellant.
Mr. Munir Ahmad Sial, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 5.11.2020.
Judgment
Shehram Sarwar Ch., J.-- Tariq Ali and Irfan Ali (appellants) along with their co-accused namely Muhammad Imran were tried by the learned Addl. Sessions Judge, Ferozewala in case FIR No. 759 dated 26.06.2015 offence under Sections 302, 324, 148 and 149, PPC registered at Police Station Factory Area District Sheikhupwa for the murder of Azhar Iqbal (deceased) brother of complainant and launching murderous assault on Ashraf Ali and Asad Ali (injured). Vide judgment dated 02.03.2017 passed by the learned trial Court, Tariq Ali (appellant) has been convicted under Section 302(b), PPC and sentenced to death with a further direction to pay
Rs. 1,00,000/-(rupees one 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 six months. However, Tariq Ali (appellant) was acquitted of the charge under Sections 324, 148 and 149, PPC. Irfan Ali (appellant) has been convicted under Section 324, PPC and sentenced to undergo seven years rigorous imprisonment with fine of Rs. 20,000/- (rupees twenty thousand only) and in default thereof, to further undergo simple imprisonment for two months. He has also been convicted under Section 337-C, PPC and sentenced to seven years R.I. with further direction to pay arsh one third of the diyat amounting to Rs. 5,60,090/- to Asad Ali (injured). He has further been convicted under Section 337-F(i), PPC and sentenced to one year R.I. with payment daman amounting to Rs. 15,000/- to Ashraf Ali (injured). Till payment of amount of arsh as well as daman, he shall remain confined in jail. All the sentences of Irfan Ali (appellant) were ordered to run concurrently. However, he was acquitted of the charges under Sections 302, 148 and 149, PPC. Through the same judgment, Muhammad Imran, co-accused of the appellants was acquitted of the charge and no appeal against his acquittal was filed either by the State or the complainant, as conceded by learned Deputy Prosecutor General. Assailing the above convictions and sentences, the appellants have filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 229 of 2017 for confirmation or otherwise of Tariq Ali, 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.PY) registered on the written application (Ex.PA) of Zafar Iqbal, complainant (PW.1) is that on 26.06.2015 early in the morning, he along with his brother Azhar Iqbal, Muhammad Yousaf and Arif Ali was working at brick kiln of Mian Pervaiz Ahmad situated at Nooray Wala Road. Muhammad Tariq (appellant) who used to work at the same brick kiln tried to pass through bricks, who was forbidden by the complainant party which resulted into an altercation and Muhammad Tariq left the place in anger. After a short while, Muhammad Tariq armed with .12 bore repeater gun, Irfan (appellant) armed with .12 bore gun, Imran, Sahib, Moga and one unknown co-accused arrived there on motorcycles while raising lalkaras and grappled with the complainant party. Muhammad Tariq made a straight fire with .12 bore repeater gun at Azhar Iqbal, which landed on his chest and left hand, who fell down in injured condition. On seeing Ashraf Ali and Asad Ali coming, Irfan Ali fired with .12 bore gun with intent to kill them, hitting Ashraf Ali on his left leg and Asad Ali on left side of his abdomen, who also fell down. Accused Muhammad Tariq etc. along with their weapons fled away from the spot. Muhammad Yousaf and Arif Ali present on the spot witnessed the occurrence. The complainant along with his companions took all the three injured to Mayo Hospital, Lahore for medical aid where Ashraf Ali and Asad Ali were got admitted while Azhar Ali succumbed to the injuries.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellants and their co-accused Muhammad Imran were summoned by the learned Addl. Sessions Judge, Ferozewala to face the trial. Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 302, 324, 148 and 149, PPC was framed against them on 18.2.2015, to which they pleaded not guilty and claimed trial. After the closure of prosecution evidence, statements of the appellants and their co-accused under Section 342, Code of Criminal Procedure were recorded on 3.2.2017, wherein they refuted all the allegations of the prosecution and professed their innocence. The appellants neither opted to appear as their own witnesses, in disproof of the allegations levelled against them, as provided under Section 340(2), Code of Criminal Procedure nor did they produce any defence evidence. However, after conclusion of trial, the learned trial Court convicted and sentenced the appellants and acquitted their co-accused, as detailed above. Hence this appeal and murder reference.
4. Learned counsel for the appellants, 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 appellants have falsely been implicated in this case; that the story of prosecution is highly improbable and presence of witnesses of ocular account namely Zafar Iqbal, complainant (PW.1), Ashraf Ali, injured (PW.2), Asad Ali, injured (PW.3), Muhammad Yousaf (PW.4) and Muhammad Arif (PW.5) 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 recoveries of .12 bore repeater gun (P.2) at the instance of Tariq Ali (appellant) and .12 bore gun (P.3) at the instance of Irfan Ali (appellant) are inconsequential as the report of Punjab Forensic Science Agency (Ex.PZ/3) is in the negative; that the versions of the appellants are more probable, convincing and even get full support from prosecution's own case; that viewing from all angles, the prosecution case is doubtful in nature and the appellants are 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 for the State vehemently opposes this appeal on the grounds that there was no conscious or deliberate delay in reporting the crime to the police; that Zafar Iqbal, complainant (PW.1), Ashraf Ali, injured (PW.2), Asad Ali, injured (PW.3), Muhammad Yousaf (PW.4) and Muhammad Arif (PW.5) have no enmity with the appellants to falsely implicate them in this case and even Ashraf Ali and Asad Ali are the injured PWs of the occurrence; 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 appellants, which is further corroborated by the recovery of .12 bore repeater gun (P.2) at the instance of Tariq Ali (appellant) and .12 bore gun (P.3) at the instance of Irfan Ali (appellant) and the report of Punjab Forensic Science Agency (Ex.PZ/3); that the versions of the appellants are nothing but afterthought, therefore, the appeal filed by the appellants merits dismissal.
6. We have heard arguments of learned counsel for the appellants 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.
8. The ocular account has been furnished by Zafar Iqbal, complainant (PW.1), Ashraf Ali, injured (PW.2), Asad Ali, injured (PW.3), Muhammad Yousaf (PW.4) and Muhammad Arif (PW.5). The occurrence took place at the brick kiln of Mian Pervaiz Ahmad situated at Nooray Wala Road, which has not been disputed by the defence. All the eye-witnesses have reasonably explained their presence on the spot at relevant time as they were residents of the same area and used to work at the said brick kiln, therefore, their presence at the place of occurrence cannot be considered unnatural or improbable. Even Ashraf Ali (PW.2) and Asad Ali (PW.3) were injured witnesses of this case and no suggestion was put to medical officer Dr. Yahya Iftikhar (PW.15) that the injuries on their person were self inflicted. 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. The witnesses of ocular account have no enmity with the appellants to falsely implicate them in this case by letting off the real culprits. Therefore, we hold that the witnesses of ocular account namely Zafar Iqbal, complainant (PW.l), Ashraf Ali, injured (PW.2), Asad Ali, injured (PW.3), Muhammad Yousaf (PW.4) and Muhammad Arif (PW.5) were present at the spot and had witnessed the occurrence.
9. No specific motive was as set out in the FIR or brought before the learned trial Court and it was simply mentioned in the FIR and stated before the learned trial Court that Tariq Ali (appellant) passed through the raw bricks/place of work of complainant, who was forbidden by Azhar Iqbal (deceased) and a scuffle took place between the deceased and Tariq Ali (appellant). After a short while, the said appellant left the place and came back along with his co-accused and committed the present incident. Admittedly, no convincing evidence qua motive was produced before the investigating officer (PW.9) during the course of investigation. Even no independent witness in support of the motive was brought in the witness box at the time of trial. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence.
11. So far as the alleged recoveries of .12 bore repeater gun (P.2) at the instance of Tariq Ali (appellant) and .12 bore single barrel gun (P.3) at the instance of Irfan Ali (appellant) are concerned, the same are of no avail to the prosecution because of the simple reason that the report of Punjab Forensic Science Agency (Ex.PZ/3) in this regard is in the negative.
12. Now we take up the versions of the appellants disclosed by them in their statements recorded under Section 342, Code of Criminal Procedure. The appellants neither opted to appear as their own witnesses in disproof of the prosecution allegations as provided under Section 340(2), Code of Criminal Procedure nor did they produce any defence evidence. Considering the above circumstances, it is concluded that the appellants have failed to prove their versions and learned trial Court has rightly discarded the same with sufficient reasons.
Muhammad alias Miro vs. The State" (2009 SCMR 1188) and "Zafar Iqbal and others v. The State" (2014 SCMR 1227).
17. Murder Reference No. 229 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Tariq Ali (convict) is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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