PLJ 2022 Cr.C. 806 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Alteration of sentence--Even if evidence of motive and recovery of 30 bore pistol and motorcycle are excluded from consideration, there is sufficient incriminating evidence on record against him in form of straightforward and confidence inspiring ocular account furnished by Muhammad Amin, complainant (PW.1) and Muhammad Waseem Mirza (PW.2) fully supported by medical evidence furnished by Dr. Omer Sabir (PW.8) to maintain his conviction under Section 302(b) which is accordingly maintained--However, it is not a case of capital punishment because of reasons:-
(i) motive as set up by prosecution has not been believed by us, and
(ii) recovery of 30 bore pistol and motorcycle at instance of appellant is inconsequential.
There are sufficient 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.
[P. 810] A & B
2009 SCMR 1188 and 2014 SCMR 1227.
Mrs. Nighat Saeed Mughal and Saiqa Javed, Advocates for Appellant.
Rai Akhtar Hussain, Deputy Prosecutor General for State.
Mr. Tariq Sharif, Advocate for Complainant.
Date of hearing: 8.11.2021.
PLJ 2022 Cr.C. 806 (DB)
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
versus
STATE--Respondent
Crl. A. No. 127167-J of 2017 & M.R. No. 16 of 2018,
heard on 8.11.2021.
Judgment
Shehram Sarwar Ch. J.--Mubashar alias Machar (appellant) along with his co-accused namely Ittefaq Hussain was tried
by learned Addl. Sessions Judge, Arifwala in case FIR No. 568 dated 29.08.2015 offence under Sections 302 and 34, PPC registered at Police Station City Arifwala District Pakpattan for the murder of Muhammad Hafeez, brother of complainant. Vide judgment dated 13.12.2017 passed by learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to death with a further direction to pay Rs. 4,00,000/- (rupees four 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. Through the same judgment learned trial Court acquitted Ittefaq Hussain, co-accused of the appellant and no appeal against his acquittal was filed either by the State or the complainant, as conceded by learned Deputy Prosecutor General and learned counsel for the complainant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 16 of 2018 for confirmation or otherwise of the 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.PA/1) registered on the statement (Ex.PA) of Muhammad Amin, complainant (PW.l) is that on 29.08.2015 at around 11:30 a.m. he (complainant) along with his brothers namely Muhammad Hafeez, Muhammad Waseem son of Abdul Rashid and Muhammad Waseem son of Naseer Ahmad (PW.2) was busy in his routine work i.e. puncture and welding. Mubashar (appellant) along with three unknown accused persons came there on two motorcycles and the appellant raised a lalkara not to let Muhammad Hafeez alive. Meanwhile one unknown accused person caught hold of collar of Muhammad Hafeez and second unknown accused persons caught hold of arm of Muhammad Hafeez whereas third unknown accused made a straight fire with his pistol at Muhammad Hafeez, which landed on the thumb of his right foot fatures/descriptions of unknown accused are mentioned in the FIR). The appellant made fire with his pistol on the right shoulder of Muhammad Hafeez, which after piercing through went inside. Muhammad Hafeez fell on the ground. The accused persons fled away from the place of occurrence on the motorcycles. Muhammad Hafeez was attended to by the complainant but soon after taking him to THQ Hospital he succumbed to the injuries. Motive behind the occurrence as alleged in the FIR was that on the fateful day at about 8:30 a.m. the appellant came on the motorcycle in drunk condition and hit the motorcycle on the foot of Muhammad Hafeez (deceased), upon which an altercation took place between them and due to that reasons the appellant along with his co-accused committed murder of the deceased.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant along with his co-accused namely Ittefaq Hussain was summoned by learned Addl. Sessions Judge, Arifwala 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 302/34, PPC was framed against them on 16.11.2016, to which they pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under Section 342, Code of Criminal Procedure was recorded on 23.11.2017, wherein he refuted all the allegations of prosecution and professed his innocence. The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant and acquitted his co-accused as detailed above. Hence, this appeal and murder reference.
4. We have heard learned counsel for the parties as well as learned Deputy Prosecutor General for the State and gone through the record with their able assistance.
5. This unfortunate incident wherein Muhammad Hafeez, brother of the complainant was done to death, as per prosecution, took place on 29.08.2015 at 11:30 a.m. in the area of Chak No. 63/EB situated within the territorial jurisdiction of Police Station City Arifwala District Pakpattan Sharif. The distance between the police station and the place of occurrence is two miles. The matter was reported to the police through statement (Exh.PA) of Muhammad Amin, complainant (PW.1) on the same day at 11:55 a.m. i.e. just twenty five minutes after the occurrence. Moreover, the postmortem examination of the dead-body of deceased was conducted on the same day at 3:30 p.m. Therefore, we hold that matter was reported to the police with due promptitude which rules out the chances of concoction and fabrication on the part of complainant.
6. The ocular account in this case consists of Muhammad Amin, complainant (PW.1) and Muhammad Wasim Mirza (PW.2), who are closely related to the deceased being his brother and cousin respectively. Admittedly, the occurrence took place in front of shop of complainant (PW.1), therefore, his presence in his shop at the time of incident is quite natural and probable. Muhammad Waseem Mirza (PW.2) is cousin of the complainant and his presence in the shop of the complainant at the time of occurrence cannot be considered unnatural or improbable. The place of occurrence has not been disputed by the defence. 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 discrepancies in the statements of the PWs pointed out by learned counsel for the appellant, are minor and general in nature, occur in every case when witnesses are cross examined after a long time of the occurrence as in present case, are not fatal to the prosecution. The witnesses of ocular account have no deep rooted enmity with the appellant to falsely implicate him in this case by letting off the real culprits. Therefore, we hold that the evidence of above two eye-witnesses was consistent, truthful and confidence inspiring.
7. In the FIR as well as before the learned trial Court it was the case of prosecution that the appellant made fire with his pistol on the right shoulder of Muhammad Hafeez (deceased). Dr. Omer Sabir, (PW.8), who conducted postmortem examination on the dead body of the deceased, noted the above said injury on the person of the deceased. Therefore, we hold that ocular account is fully supported by medical evidence.
8. Motive behind the occurrence as alleged in the FIR or stated before learned trial Court was that on the fateful day i.e. 29.08.2015 at about 8:30 a.m. the appellant came on the motorcycle in drunk condition and hit the motorcycle on the foot of Muhammad Hafeez (deceased), upon which an altercation took place between them and due to that reason the appellant committed murder of the deceased. No FIR qua the motive part of the incident has been brought on record during trial. Moreover, Mukhtar Ahmad, SI/I.O. (PW.7) stated in his cross-examination that he did not collect any other evidence on motive of the occurrence except the witnesses of the FIR. No independent witness qua motive was associated by police during investigation or produced by prosecution before the learned trial Court during the trial. Therefore, we hold that prosecution has failed to prove motive and the same is shrouded in mystery.
9. So far as alleged recovery of 30 bore pistol (P.4) at the instance of the appellant is concerned the same is immaterial because the appellant got recovered the said weapon from the jawar crop adjacent to the wall of dera Rashid Ahmad Gujjar which is an open place accessible to everyone. As far as alleged recovery of motorcycle (P.6) at the instance of the appellant is concerned, the same is of no avail to the prosecution because it has not been brought on record as to who was the owner of the said motorcycle and moreover no registration book of the said motorcycle was produced by the prosecution during the trial.
10. Now we will discuss the version of the appellant which was taken by him in his statement recorded under Section 342, Cr.P.C. The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor produce any witness in his defence. Therefore, we are of the view that the appellant has not been able to substantiate his version, which is hereby discarded out-rightly.
13. Murder Reference No. 16 of 2018 is answered in the NEGATIVE and the sentence of death awarded to Mubashar alias Machar (convict) is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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