PLJ 2022 Cr.C. (Note) 133
Evidence--
----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. [Para 5] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt--Quantum of sentence--Mitigating circumstances--Coming to quantum of sentence, some mitigating circumstances--Firstly, recovery of Kalashnikov on pointing out of appellant has been disbelieved with reasons mentioned in para 4 sub para (ix) of this judgment--Secondly, motive has also been disbelieved by us with reasons mentioned in para 4 sub para (viii) 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--Conviction of appellant in offence under Section 302(b), PPC for committing murder of deceased is maintained but his sentence is altered from death to imprisonment for life--The compensation and sentence in default whereof awarded by trial Court are also maintained--Benefit of Section 382-B, Cr.P.C. is extended to appellant modification in sentence appeal dismissed. [Para 6 & 7] B, C & D
2009 SCMR 1188 and 2014 SCMR 1227.
Mr. Shafqat Raza Thaheem, Advocate/Defence Counsel for Appellants.
Qazi Sadar-ud-din Alvi, Advocate for Complainant.
Sayed Nadeem Haider Rizvi, DDPP for State.
Date of hearing: 20.9.2021.
PLJ 2022 Cr.C. (Note) 133
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
MUHAMMAD FAROOQ and another--Appellants
versus
STATE and another--Respondents
Crl. A. No. 401 & M.R. No. 87 of 2017, heard on 20.9.2021.
Judgment
Sadaqat Ali Khan, J.--Appellant (Muhammad Farooq) has been tried by learned trial Court in case FIR No. 45 dated 13.04.2016 offences under Sections 302, 34, PPC registered at Police Station Kot Mubarak, District Dera Ghazi Khan, and was convicted and sentenced vide judgment dated 28.04.2017 as under:
Muhammad Farooq (appellant)
u/S. 302(b), PPC Sentenced to DEATH for committing Qatl-i-Amd of Muhammad Majid (deceased) with compensation of
Rs. 4,00,000/- payable to legal heirs of the deceased u/S. 544-A, Cr.P.C. and in default whereof to further undergo simple imprisonment for 6-months.
2. Appellant has filed this Criminal Appeal against his conviction and learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.
3. Brief facts of the case have been stated by the complainant Hassan (PW-1) in his statement before learned trial Court, which is hereby reproduced as under for narration of the facts;
“I am labourer in Saudi Arabia. Two months prior to the occurrence, I came from Saudi Arabia to get married my daughter Marrium Bibi. After 15/16 days of her marriage, I received information in my house on 13.4.2016, at about evening time that father-in-law of Marrium Bibi namely Farooq was beating her and had confined her in a room. I alongwith my son Majid and Mohammad Qasim went to inquire about my daughter. At about 6:00 PM, we reached the house of Farooq accused and called him from outside it. On our call, his neighbourer came out of his house and when we were talking with him, in the meantime, accused Farooq present in the Court came out of his house with Kalashnikov and raised Lalkara saying why we had come in his house and that he would not spare us and started firing with his Kalashnikov on Majid which hit him on left arm and left side of his abdomen and on his penis and testicle and went through and through. Majid fell down on the ground and smeared in blood. On our hue and cry, son of accused Farooq came out armed with a pistol for the purpose of firing. Mohammad Qasim and Siddique stopped him from firing. After the occurrence, both the accused alongwith their weapons went inside their house abusing us. Motive behind the occurrence was that the accused Farooq had beaten my daughter Marrium Bibi. We went to inquire about her. On our arrival at his house to inquire about my daughter, they felt it bad and with their common intention, both accused committed murder of my son Majid. We shifted injured Majid through 1122 to Trauma Centre, D.G.Khan. Police reached Trauma Centre, D.G.Khan where they recorded my statement Exh.PA which was read over to me and I thumb marked said statement in token of its correctness. Police also recorded statement of my son Mohammad Majid.”
4. After hearing learned counsel for the parties as well as learned DDPP, and on perusal of record with their able assistance, we have observed as under:
i. Majid sustained fire-arm injuries during the occurrence took place on 13.04.2016 at 6.00 p.m. in the street in front of the house of Muhammad Farooq (appellant), whose son Saif Uddin was married with Maryam Bibi (sister of Majid deceased), FIR was lodged on 13.04.2016 at 9.45 p.m. on the statement of his father Hassan, complainant PW1, who and his son Muhammad Qasim PW2 claim themselves to be the eye-witnesses of the occurrence.
ii. After the occurrence, Majid (deceased) the then injured, was taken to hospital, reached there at 10.00 p.m. on 13.04.2016, medical officer specifically observed in his MLR, Ex.PF that he is physically and mentally stable, vital signs were in normal range, well oriented in time and place.
iii. Munir Ahmad S.I. PW9 specifically stated in his statement that he prepared injury statement of Majid (deceased), the then injured, deputed Ijaz Hussain constable PW5, for his medical examination, submitted an application Exh.PK to medical officer to inquire, whether he was capable to record his statement or not. After obtaining opinion of the doctor he recorded the statement of Majid (deceased), the then injured, which is Exh.PL, Majid (deceased), the then injured, got recorded that Muhammad Farooq (appellant) made straight firing with Kalashnikov hitting on different parts of his body. Majid died on 17.04.2016.
iv. Munir Ahmad S.I. PW9 being independent witness has absolutely no grudge or ill will to falsely implicate Muhammad Farooq, appellant [who is close relative of Majid (deceased)] by fabricating dying declaration of the deceased who was fully conscious at the time of making of his statement. In these circumstances, we after having glimpse on the dying declaration, are of the view that said statement has duly corroborated the statements of the PWs which has rightly been relied upon by the learned trial Court. (2015 SCMR 10 “Sikandar Shah v. Raza Shah and another) & (2019 SCMR 1308 “Nazeer Khan v. The State and another”).
v. Both the eye-witnesses have also stated regarding role of Muhammad Farooq (appellant) that he made firing with Kalashnikov hitting on different parts of body of Majid (deceased) the then injured. Both these witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They have corroborated each other 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 straight forward, trustworthy and confidence inspiring. The discrepancies in the statements of the PWs pointed out by learned counsel for the appellant, 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.
vi. The argument of learned counsel for the complainant that FIR was lodged with delay of more than three hours which is fatal to the prosecution case has no substance as Majid (deceased) after sustaining injuries, was taken to hospital for treatment wherein he also made statement involving Muhammad Farooq (appellant), thereafter remained alive and died on 17.04.2016. Considering the peculiar circumstances of this case, delay in reporting the matter to police is not fatal to the prosecution (2020 SCMR 2020 “Akhtar v. The State”).
vii. Medical evidence has been furnished by Dr. Muhammad Junaid Asghar (PW-8) who while conducting medical examination observed fire-arm injuries on the person of Majid (deceased), the then injured, on his death also conducted post-mortem examination on the dead body of Majid (deceased) and observed fire-arm injuries on his person attributed to Muhammad Farooq (appellant) 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.
viii. Regarding motive of the occurrence Hassan PW.1 stated in his statement (examination-in-chief) that appellant had given beating to his daughter-in-law Maryam Bibi, who is his real daughter but did not appear before the trial Court to establish this motive, which is not believable.
ix. Hassan, complainant PW1 stated in his statement (examination-in-chief) before the trial Court that on 11.05.2016 appellant during interrogation disclosed and got recovered Kalashnikov from chaff lying in the room of his house. Contrary to this Muhammad Qasim PW2 did not state that Kalashnikov was recovered from Chaff. This contradiction is not ignorable rather creates doubt in the prosecution died on 17.04.2016. Considering the peculiar circumstances of this case, delay in reporting the matter to police is not fatal to the prosecution (2020 SCMR 2020 “Akhtar v. The State”).
vii. Medical evidence has been furnished by Dr. Muhammad Junaid Asghar (PW-8) who while conducting medical examination observed fire-arm injuries on the person of Majid (deceased), the then injured, on his death also conducted post-mortem examination on the dead body of Majid (deceased) and observed fire-arm injuries on his person attributed to Muhammad Farooq (appellant) 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.
viii. Regarding motive of the occurrence Hassan PW.1 stated in his statement (examination-in-chief) that appellant had given beating to his daughter-in-law Maryam Bibi, who is his real daughter but did not appear before the trial Court to establish this motive, which is not believable.
ix. Hassan, complainant PW1 stated in his statement (examination-in-chief) before the trial Court that on 11.05.2016 appellant during interrogation disclosed and got recovered Kalashnikov from chaff lying in the room of his house. Contrary to this Muhammad Qasim PW2 did not state that Kalashnikov was recovered from Chaff. This contradiction is not ignorable rather creates doubt in the prosecution story. Further, rough site-plan of place of recovery Exh.PB also does not show the house of the complainant PW.1 around the place of recovery. I.O. did not join any notable from the vicinity of place of recovery to witness the recovery proceedings which are not believable. (2008 SCMR 1064) “Ghulam Akbar and another vs. The State”.
x. Appellant has denied his involvement in the present occurrence in answer to question No. 6 in his statement recorded u/S. 342, Cr.P.C., and specifically stated that he has been falsely involved in this case due to family dispute, fire shot of complainant hit on the body of his son. He neither opted to appear u/S. 340 (2), Cr.P.C. as witness nor produced any evidence in his defence plea which has rightly been discarded by learned trial Court with sufficient reasons.
5. In view of above, if evidence of motive and recovery is excluded from consideration, even then prosecution has proved its case beyond shadow of doubt against appellant through the evidence discussed above.
6. Coming to the quantum of sentence, we have noted some mitigating circumstances. Firstly, recovery of Kalashnikov on pointing out of the appellant has been disbelieved by us with the reasons mentioned in para 4 sub para (ix) of this judgment. Secondly, motive has also been disbelieved by us with the reasons mentioned in para 4 sub para (viii) 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. (2009 SCMR 1188) “Mir Muhammad alias Miro vs. The State” and (2014 SCMR 1227) “Zafar Iqbal and others vs. The State”.
7. Considering above, conviction of appellant (Muhammad Farooq) in offence under Section 302(b), PPC for committing the murder of Majid (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 the appellant.
8. Consequently, with the above said modification in the impugned judgment, instant Criminal Appeal is hereby dismissed. Murder Reference is answered in NEGATIVE and death sentence of Muhammad Farooq (appellant) is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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