PLJ 2022 Cr.C. 448 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Medical evidence--Motive of occurrence--Abduction and murder--Qatl-e-amd--Quantum of sentence--Modification in sentence--If evidence of motive and recovery is eluded from consideration, even then prosecution has proved its case beyond shadow of doubt against appellants through evidence Quantum of sentence, we have noted some mitigating circumstances--Firstly, recovery has been disbelieved by us with reasons mentioned in para 4 (iv) of this judgment, secondly motive has also been disbelieved by us with reasons mentioned in para 4 (iii) of this judgment--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 appellants in offence Under Section 302(b), PPC for committing murders of (deceased) are maintained but their sentences are altered from death to imprisonment for life each--Compensation and sentences in default whereof awarded by trial Court are also maintained--Appeal dismissed. [P. 452] B, C, D & E
2009 SCMR 1188 and 2014 SCMR 1227.
Recovery of crime weapon--
----Recovery of rifles in presence of negative report of Punjab Forensic Science Agency is inconsequential and not fatal to prosecution case.
[P. 452] A
2021 SCMR 104.
M/s. Ch. Umer Hayat, Ch. Daud Ahmad, Wains Mian Yasir Hameed Bhatti and Ch. Muhammad Saeed Machra, Advocates for Appellants.
Rana Muhammad Nasir Noon, Advocate for Complainant.
Ch. Muhammad Akbar, APG for State.
Date of hearing: 28.9.2021.
PLJ 2022 Cr.C. 448 (DB)
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
SHAUKAT HUSSAIN and another--Appellants
versus
STATE and another--Respondents
Crl. A. No. 344 & M.R No. 176 of 2017, heard on 28.9.2021.
Judgment
Sadaqat Ali Khan, J.--Appellants (Shaukat Hussain and Qaisar Abbas @ Jhangvi) have been tried by learned trial Court in case FIR No. 612 dated 10.11.2009 offences under Sections 34, PPC registered at Police Station City Shujabad District Multan, and were convicted and sentenced vide judgement dated 29.03.2017 as under:
Shaukat Hussain and Qaisar Abbas (a), Jhangvi (appellants)
u/S. 302(b), PPC Sentenced to DEATH as Tazir each for committing Qatl-i-Amd of Manzoor Ahmad and Ghulam Abbas (deceased) with compensation of Rs. 3,00,000/- each payable to legal heirs of each deceased in default whereof to further undergo simple imprisonment for 6-months each.
2. Appellants have filed this Criminal Appeal against their convictions and learned trial Court has sent Murder Reference for confirmation of their death sentence or otherwise, which are being decided through this single judgment.
3. Brief facts of the case have been stated by the Complainant Muhammad Sharif (PW-1) in his statement before learned trial Court, which is hereby reproduced for narration of the facts as under:
“Stated that on 10.11.2009 at about 9.30 am, I along with Mushtaq, Muhammad Farooq, Ghulam Abbas and Manzoor, was present at the shop situated at Mouza Khanpur Qazian. Manzoor stated that he wanted to eat rice and grains. Then he started to eat rice and grains. Ghulam Abbas entered into the shop. I, Mushtaq and Farooq remained present outside the shop. Meanwhile, a motor cycle came from the side of river, which was stopped near Manzoor. Accused Shoukat and Qaisar present in the Court along with one unknown accused person (all were armed with their respective automatic rifles) were riding on the above stated motor cycle. Shoukat accused has raised a lalkara to Manzoor while stating that he may recite “Kalma-e-Tayyiaba” and then accused Shoukat present in Court, has opened the burst of his rifle upon Manzoor. Qasiasr accused present in Court while armed with his rifle trespassed into the shop and opened the burst of his rifle upon Ghulam Abbas. The unknown accused person has made aerial firing by his rifle, while raising a lalkara to the effect that in case of going to near, he will hit the fire. Then Shoukat accused came back to his motor cycle and started the same, while boarding on the said motor cycle. Accused Qaisar present in the Court boarded on the rear side of Shouak accused present in the Court and then unknown accused person boarded on the said motor cycle while sitting on the rear side of accused Qaisar present in the Court. All the above stated accused persons decamped from the said place, towards North side while opening the fires by their respective weapons and having the same with them. I, Mushtaq and Farooq went to take Manzoor, who succumbed to the injuries, at the spot. Then we rushed towards Ghulam Abbas to take him but he was also succumbed to the injuries, at the spot.
Motive behind the occurrence was that, about 22/23, again stated about 27 days prior to the occurrence, accused Shoukat and Qaisar present in Court, along with their companion namely Kousar, had abducted Arshad, Khizar Abbas and Ghulam Abbas, for which Altaf Hussain has got registered a criminal case against them. Deceased Ghulam Abbas and Manzoor have supported the complainant of that case namely Altaf Hussain, against the accused persons, due to which, the accused persons have a grudge against both the deceased, due to which, the accused Shoukat, Qasiar and unknown person committed Qati-e-Amd of Ghulam Abbas and Manzoor Hussain.
Some one has reported the matter to the emergency 15, due to which, the police reached at the spot, where, I was already present. I made the statement Ex.P.A to the police which was reduced into writing and was read over to me and as a token of its correctness, I signed the same.”
4. After hearing learned counsel for the parties as well as learned APG, and on perusal of record with their able assistance, we have observed as under:
(i) Manzoor Ahmad and Ghulam Abbas were done to death on 10.11.2009 at 9:30 a.m., FIR was lodged on the same day (10.11.2009) at 11:20 a.m. on the statement of Muhammad Sharif (PW-1/maternal uncle/Mamu of both the deceased). Muhammad Farooq (PW-2) is brother of Manzoor Ahmad (deceased) and Muhammad Mushtaq (PW-3) is brother of Ghulam Abbas (deceased). All these three witnesses while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before learned trial Court regarding role of the accused that Shaukat Mohana (appellant) made firing with rifle hitting on different parts of the body of Manzoor Ahmad (deceased). Qaiser Abbas (appellant) also made firing with his rifle hitting on different parts of the body of Ghulam Abbas (deceased). All 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. The discrepancies, in their statements pointed out by learned counsel for the appellants are minors and general in nature, occur in every case when witnesses (who are human being) are cross-examined after a long time of the occurrence as in present case, are not fatal to the prosecution case.
(ii) Medical evidence has been furnished by Dr. Ayaz Ahmad Ghauri (PW-3) who during post-mortem examination on the dead bodies of both the deceased observed firearm injuries on their persons attributed to the appellants (shaukat Hussain and Qaisar Abbas @ Jhangvi) which were ante-mortem in nature and were 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.
(iii) Muhammad Farooq (PW-2) stated in his statement before learned trial Court regarding motive of the occurrence that FIR was got lodged against the appellants and others for the abduction of their three boys by Altaf Hussain. “Both deceased were extending help to Altaf Hussain in this respect but he (Altaf Hussain) has not been produced to prove this motive which is not believable.
(v) Both the appellants have denied their involvement in the present occurrence in their statements recorded under Section 342, Cr.P.C. with their defence plea that they are innocent and have been falsely involved in this case. They have not opted to appear as witnesses under Section 340 (2), Cr.P.C., however, produced some documents in support of their defence plea which has rightly been discarded by learned trial Court with sufficient reasons.
8. Consequently, with the above said modification in the impugned judgment, instant Criminal Appeal filed by the appellants (Shaukat Hussain and Qaisar Abbas @ Jhangvi) is hereby dismissed. Murder Reference is answered in NEGATIVE and death sentences of Shaukat Hussain and Qaisar Abbas @ Jhangvi (appellants) are NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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