PLJ 2022 Cr.C. 613 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Criminal Procedure Code, (V of 1898), S. 342--Conviction and sentence--Challenge to--Modification in quantum of sentence--Extenuating circumstance--Motive behind occurrence was a money dispute (lain dain) amongst parties--Sufficient incriminating evidence against appellant--Ocular account--It is not a case of capital punishment because of reasons: (i) motive set up by prosecution has not been believed by us; and (ii) alleged recovery of .30 bore pistol at instance of appellant has not been proved--There is extenuating circumstance, 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--While maintaining conviction under Section, 302(b), PPC, we alter sentence of appellant from death to imprisonment for life on two counts--The amount of compensation and punishment in default whereof, as ordered by trial Court, are maintained--The convictions and sentences of appellant under Sections 324 and 337-F(ii), PPC as imposed by trial Court are also maintained--All sentences of appellant shall run concurrently--Benefit of Section 382-B, Code of Criminal Procedure is extended to appellant--So far as imposition of daman is concerned, appellant may be kept, in jail and dealt with in same manner as if sentenced to simple imprisonment until daman is paid in full or may be released on bail if he furnishes security or surety equivalent to amount of daman--The appeal in hand stands dismissed with above modification in quantum of sentence.
[Pp. 619 & 620] A, B & C
2009 SCMR 1188 and 2014 SCMR 1227.
Mr. Kamran Javed Malik, Advocate for Appellant.
Mr. Tariq Javed, Additional Prosecutor General for State.
M/s. Azeem Sarwar and Saeed Sarwar, Advocates for Complainant.
Date of hearing 21.10.2021.
PLJ 2022 Cr.C. 613 (DB)
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
ABDUL DAWOOD alias DAWOOD--Appellant
versus
STATE--Respondents
Crl. A. No. 55371-J & M.R. No. 271 of 2017, decided on 21.10.2020.
Judgment
Shehram Sarwar Ch., J.--Abdul Dawood (appellant) was tried by the learned Addl. Sessions Judge, Sambrial District Sialkot in case FIR No. 197 dated 09.03.2014, offence under Sections 302, 324 and 34, PPC registered at Police Station Sambrial District Sialkot for the murder of Qaiser Butt, Khalid Mehmood Cheema (deceased) and launching murderous assault on Muhammad Afzal Gujjar (injured). Vide judgment dated 30.03.2017 passed by the learned trial Court, Abdul Dawood (appellant) has been convicted under Section 302(b) PPC and sentenced to death on two counts, with a further direction to pay Rs. 1,00,000/- (rupees one lakh only) each as compensation under Section 544-A, Cr.P.C. to the legal heirs of each deceased and in default whereof to further undergo simple imprisonment for six months each. The appellant has also been convicted under Section 324, PPC and sentenced to rigorous imprisonment for three years with fine of Rs. 50,000/- (rupees fifty thousand only) and in default thereof, to further undergo simple imprisonment for three months. The appellant has further been convicted under Section 337-F(ii), PPC and sentenced to pay daman of Rs. 50,000/- (rupees fifty thousand only) to Muhammad Afzal Gujjar (injured) and in default whereof, to further undergo simple imprisonment for three months. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 271 of 2017 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.PC) registered on the written application (Ex.PD) of Nasrullah Khan, complainant (PW.6) is that on 09.03.2014 at around 6.30 p.m. he (complainant) along with his brother Khalid Cheema, Qaiser Butt, Faisal Mehmood, Muhammad Afzal and Irfan Sajid went to the baithak of Nasir Sheikh situated at Mauza Bhopalwala in order to attend a panchayat meeting convened for settlement of amount, outstanding against Ahmad Bilal Butt and Dawood Butt (appellant), payable to Khalid Mehmood Cheema. Ahmad Bilal Butt and Dawood Butt also arrived there and proceedings of panchayat were started. Nasir Sheikh went inside to take tea for the parties. Meanwhile, an altercation took place between the parties which aggravated and Ahmad Bilal raised lalkara that they would pay the entire amount to the complainant side and no amount would be left unpaid and gave signal to Dawood Butt to count the money. Thereafter, Ahmad Bilal and Dawood Butt took out pistols .30 bore from their dubb (fold of shalwar) and started firing. Dawood Butt made a straight fire on the forehead of Qaiser Butt. Second fire was made by Ahmad Bilal on left leg of Qaiser Butt. Khalid Mehmood Cheema brother of complainant stepped forward, whereupon Dawood Butt fired at Khalid Mehmood Cheema hitting on his right flank and right calf. Then Ahmad Bilal fired two successive fire shots hitting on left flank and buttock of Khalid Mehmood Cheema. The accused were about to flee away when Afzal Gujjar attempted to capture them, upon which Dawood Butt made a fire which landed on the arm of Afzal Gujjar and the accused decamped from the spot. The complainant party shifted Khalid Mehmood Cheema and Afzal Gujjar to Civil Hospital, Sambrial from where Khalid Mehmood was referred to Civil Hospital, Sialkot where he succumbed to the injuries. Afzal Gujjar was admitted in Civil Hospital Sialkot whereas Qaiser Butt was taken to Civil Hospital Sialkot but he breathed his last on the way. Besides the complainant, the occurrence was witnessed by Afzal Gujjar, Irfan Sajid and Faisal Mehmood. Motive behind the occurrence as alleged in the FIR was a dispute of money.
3. During investigation, Ahmad Bilal Butt co-accused of the appellant became fugitive from law and he was declared proclaimed offender. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Abdul Dawood alias Dawood Butt (appellant) was summoned by the learned Addl. Sessions Judge, Sambrial District Sialkot to face the trial. Copies of relevant documents were provided to him, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 302, 324, 337-F(ii) and 34, PPC was framed against him on 15.03.2016, to which he pleaded not guilty and claimed trial. Statement of the appellant under Section 342 of the Code of Criminal Procedure was recorded on 06.03.2017, wherein he refuted all the prosecution allegations levelled against him 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. However, after conclusion of trial, the learned trial Court convicted and sentenced the appellant, as detailed above. Hence this appeal and murder reference.
4. Learned counsel for the appellant, in support of this appeal, contends that the matter was reported to the police with due deliberation and consultation; that the appellant has falsely been implicated in this case; that the story of prosecution is highly improbable and presence of witnesses of ocular account namely Nasrullah Khan, complainant (PW.6), Muhammad Afzal Gujjar, injured (PW.7), Faisal Mehmood (PW.8) and Nasir Sheikh (PW.9) at the place of occurrence at relevant time is of doubtful nature; that a vague motive has been set out in the FIR as well as brought before the learned trial Court, which has not been proved by the prosecution; that the ocular account is not in line with the medical evidence; that the alleged recovery of .30 bore pistol (P.7) at the instance of the appellant is inconsequential because of the reason that the report of Punjab Forensic Science Agency (Ex.PV) is in the negative; that the version of the appellant is more probable, convincing and even gets full support from prosecution's own case; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Addl. Prosecutor General assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that the matter was reported to the police with promptitude; that Nasrullah Khan, complainant (PW.6), Muhammad Afzal Gujjar, injured (PW.7), Faisal Mehmood (PW.8) and Nasir Sheikh (PW.9) have no enmity with the appellant to falsely implicate him in this case; that eye-witnesses have reasonably explained their presence on 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 appellant, which is further corroborated by the recovery of .30 bore pistol (P.7) at the instance of the appellant and the report of Punjab Forensic Science Agency (Ex.PV); that the version of the appellant is nothing but an afterthought, therefore, the appeal filed by the appellant merits dismissal.
6. We have heard arguments of learned counsel for the parties as well as learned Addl. Prosecutor General for the State to their entire satisfaction, given our serious consideration, to their respective submissions and also perused the record.
7. This unfortunate incident wherein Qaiser Butt, Khalid Mehmood Cheema (deceased) lost their lives and Muhammad Afzal Gujjar (PW.7) sustained fire-arm injuries, as per prosecution, took place on 09.03.2014 at around 6.30 p.m. in the area of Bhopalwaia situated within the territorial limits of Police Station Sambrial District Sialkot. The distance between the place of occurrence and the police station is about six kilometers. The matter was reported to the police through written application (Ex.PD) of Nasraullah Khan, complainant (PW.6) on the same day at 8.15 p.m. i.e. one, hour and forty five minutes after the incident and formal FIR (Ex.PC) was got registered at 8.45 p.m. We have noted that it was case of the complainant in the FIR and before the learned trial Court that after the incident, they arranged the vehicle to take the injured persons to Civil Hospital, Sambrial where Muhammad Afzal Gujjar injured (PW.7) was admitted whereas Khalid Mehmood Cheema was referred to Civil Hospital, Sialkot but he along with Qaiser Butt succumbed to the injuries on the way. Initially, Muhammad Afzal Gujjar (PW.7) and Khalid Mehmood Cheema (then injured) were medically examined on the same day at 7.11 p.m. and 7.20 p.m. respectively and after the death of deceased, postmortem examinations of the dead bodies were conducted on 10.03.2014 at 4.00 a.m. and 6.30 a.m. Therefore, considering overall circumstances of the case, it can safely be concluded that the delay, if any, in reporting the crime to the police was not conscious or deliberate as in such like cases the first and foremost priority of the kith and kin of the injured is to rush for medical treatment instead of reporting the matter to the police.
8. The ocular account has been furnished by Nasrullah Khan, complainant (PW.6), Muhammad Afzal Gujjar, injured (PW.7), Faisal Mehmood (PW.8) and Nasir Sheikh (PW.9). All the eye-witnesses have reasonably explained their presence on the spot at relevant time. The occurrence took place in the house of Nasir Sheikh (PW.9), which has not been disputed by the defence. Nasir Sheikh (PW.9) is resident of the same house where the occurrence had happened whereas the other witnesses of ocular account are residents of the same area except Nasrullah Khan, complainant (PW.6), who accompanied his brother to the baithak of Nasir Sheikh, therefore, their presence on the spot at the time of incident cannot be considered unnatural or improbable. Even Muhammad Afzal Gujjar (PW.7) was an injured witness and the medical officer (PW.4) who medically examined him did not state before the learned, trial Court that the injuries on his person were self suffered. 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 appellant to falsely implicate him in this case by letting off the real culprits. Therefore, we hold that the witnesses of ocular account namely Nasrullah Khan, complainant (PW.6), Muhammad Afzal Gujjar, injured (PW.7), Faisal Mehmood (PW.8) and Nasir Sheikh (PW.9) were present on the spot and had witnessed the occurrence.
9. The motive behind the occurrence as set out in the FIR and brought before the learned trial Court was a money dispute (lain dain) amongst Khalid Mehmood Cheema (deceased) and Ahmed Bilal Butt (since P.O) as well as Abdul Dawood (appellant). No detail of money dispute/lain dain was brought on record by the, prosecution. During cross-examination, Muhammad Afzal Gujjar (PW.7) though stated that the appellant owed one lac approximately to Khalid Mehmood Cheema (deceased) but he did not know in which regard, the appellant had to pay above mentioned amount. Nasir Sheikh (PW.9) also admitted during his cross-examination that he had no knowledge about any money dispute of Kahlid Mehmood Cheema (deceased) with Ahmad Bilal Butt (since P.O). We have also observed that no independent witness qua motive was produced before the investigating officer during investigation or brought in the witness box during the course of trial. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence.
10. In the FIR and before the learned trial Court, it was case of the prosecution to the extent of Abdul Dawood (appellant) that he was armed with .30 bore pistol and made a straight fire on the forehead of Qaiser Butt (deceased). He also fired at Khalid Mehmood Cheema (deceased) hitting on his right flank and right calf. The appellant then caused fire-arm injury on left arm of Afzal Gujjar (injured). Initially Dr. Zaigham Habib medically examined Muhammad Afzal Gujjar injured (PW.7) and Khalid Mehmood Cheema and after death of the latter and Qaiser Butt (deceased), Dr. Muhammad Ahsan Hashmi conducted post-mortem examinations of their dead bodies. The said medical officers appeared before the learned trial Court as PW.4 and 18, respectively and furnished medical evidence. The injuries caused by the appellant on the person of deceased and injured (PW.7) are available in the medico-legal reports (Ex.PA & PB) and post-mortem examination reports (Ex.PJ to PJ/2 and Ex.PK to PK/2). Therefore, in our view, the ocular account in this case is fully supported by medical evidence.
11. So far as alleged recovery of .30 bore pistol (P.7) at the instance of appellant, which was taken into possession vide recovery memo Ex.PI, is concerned, the same is immaterial because of the reason that the report of Punjab Forensic Science Agency (Ex.PV) in this regard is in the negative.
12. Now we take up the version of the appellant disclosed by him in his statement recorded under Section 342, Code of Criminal Procedure. The appellant neither opted to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. Considering the above circumstances, it is concluded that the appellant has failed to prove his version and learned trial Court has rightly discarded the same with sufficient reasons.
16. Murder Reference No. 271 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Abdul Dawood (convict) on two counts is NOT CONFIRMED.
(A.A.K.) Appeal dispose of
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