PLJ 2023 Cr.C. (Note) 19
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 374--Qatl-e-amd--Conviction and sentence--Challenge to--Ocular account--Motive--Extenuating circumstances--It is a case of single accused and substitution in such like cases is a rare phenomenon--Even if evidence of motive and recovery of chhurri (P.4) at instance of appellant is excluded from consideration, there is sufficient incriminating evidence on record against him in form of straightforward and confidence inspiring ocular account furnished by complainant (PW.1) and (PW.2), fully supported by medical evidence i.e. statement of Dr. (PW.7) to maintain his conviction under Section 302(b), PPC, which is accordingly maintained--However, 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) recovery of chhurri (P.4) at instance of appellant has not been proved--There are extenuating circumstances, on basis of which appellant could not be made liable to maximum punishment provided u/S. 302(b), PPC, rather ends of justice would be met, if his death sentence is converted into imprisonment for life--Appeal dismissed. [Para 6, 11 & 12] A, B & C
2009 SCMR 1188 and 2014 SCMR 1227.
Mr. Kamran Bashir Mughal, Advocate appointed as Defence counsel at State expense for Appellant.
Rai Akhtar Hussain, Deputy Prosecutor General for State.
Mr. M. Irfan Malik, Advocate for Complainant.
Date of hearing: 10.3.2021.
PLJ 2023 Cr.C. (Note) 19
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
GHULAM HASSAN--Appellant
versus
STATE--Respondent
Crl. A. No. 85749-J & M.R No. 514 of 2017, heard on 10.3.2021.
Judgment
Shehram Sarwar Ch., J.--Ghulam Hassan (appellant) was tried by the learned Sessions Judge, Pakpattan in case FIR No. 57 dated 23.02.2017 offence under Section 302, PPC registered at Police Station Kalyana District Pakpattan for the murder of Asif Ali (deceased) son of complainant. Vide judgment dated 18.07.2017 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to death with a further direction to pay Rs. 2,00,000/- (rupees two 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. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 514 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, 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 Israr Hussain, complainant (PW.l) is that about ten years ago, Mst. Ambreen Bibi daughter of complainant was married to Ghulam Hassan (appellant) and out of the said wedlock, one son namely Zohaib Hassan aged about 7 years and a daughter Qisa Zahra aged about four years were born, who were still alive. Two days earlier, daughter of complainant along with her kids came to the house of complainant due to a quarrel with her husband Ghulam Hassan. On 22.02.2017 at evening time, Ghulam Hassan came to take his wife Mst. Ambreen and children. They remained busy in talking and after taking meal, slept in their rooms. In the morning, after offering fajar prayer, the complainant went in his room while Ghulam Hassan entered the room of Asif Ali son of complainant, who was an officer of Grade-17 in Agriculture Department. On hearing hue and cry, the complainant along with his son Mohsin Raza, brother Ibrar Hussain and other family members attracted to the room of Muhammad Asif and within their view, Ghulam Hassan (appellant) inflicted chhurri blows to Asif Ali on his chest, below left armpit, left wrist, left palm, left cheek and left shoulder. The complainant party attempted to apprehend the appellant but he escaped from the spot while brandishing chhurri and extending threats. Motive behind the occurrence as alleged in the FIR was that one year earlier to the present occurrence, Mst. Ambreen Bibi daughter of complainant having quarrel with her husband had come to the house of complainant as Ghulam Hassan (appellant) used to demand money from the complainant side through his daughter and the appellant was of firm belief that Asif Ali was opposing him. The complainant party attended Asif Ali but he succumbed to the injuries on the spot.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Ghulam Hassan (appellant) was summoned by the learned Sessions Judge, Pakpattan 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 Section 302, PPC was framed against him on 19.04.2017, to which he 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 06.07.2017, wherein he refuted all the allegations of prosecution and professed his innocence. The appellant did not opt to appear as his own witness, in disproof of the allegations leveled against him, as provided under Section 340(2), Code of Criminal Procedure, however, he produced certain documents (Ex.DE td Ex.DJ) as defence evidence. After conclusion of trial, the learned trial Court convicted and sentenced the appellant, as detailed above. Hence this appeal and murder reference.
4. We have heard arguments of learned counsel for the parties 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.
5. This unfortunate incident wherein Asif Ali (deceased) son of complainant lost his life, as per prosecution, took place on 23.02.2017 at morning time in the area of Purana Thana Dakhli Malooka Khurd within the territorial limits of Police Station Kalyana District Pakpattan. The distance between the place of occurrence and the police station is about nine kilometers. While appearing before the learned trial Court as PW.1, the complainant narrated the time of incident as 6.30/6.45 a.m. The matter was reported to the police through statement (Ex.PA) of Israr Hussain, complainant (PW.1) on the same day at 7.30 a.m. and formal FIR (Ex.PA/1) was got registered at 7.55 a.m. The post-mortem examination of the dead body of deceased was also conducted on the same day at 12.20 p.m. Therefore, considering overall circumstances of the case, we are of the view that there was no delay in reporting the crime to the police.
6. The ocular account has been furnished by Israr Hussain, complainant (PW.1) and Mohsin Raza (PW.2). Both the eyewitnesses have reasonably explained their presence on the spot at relevant time. The complainant (PW.1) has stated during his cross-examination that he has two residential houses and both were situated in front of each other in the same street. The occurrence took place in house of Mohsin Raza (PW.2) which has not been disputed by the defence whereas the complainant (PW.l) was residing in the front house, therefore, their presence on the spot at the time of incident is cannot be considered unnatural or improbable. The eyewitnesses 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. Though the witnesses of ocular account are closely related to the deceased as the complainant (PW.1) was father while Mohsin Raza (PW.2) was brother of deceased but merely because of their close relationship with the deceased, their evidence cannot be discarded. The witnesses of ocular account have no enmity with the appellant to falsely implicate him in this case by letting off the real culprits. Moreover, it is a case of single accused and substitution in such like cases is a rare phenomenon. Therefore, we hold that the witnesses of ocular account namely Israr Hussain, complainant (PW.1) and Mohsin Raza (PW.2) were present on the spot and had witnessed the occurrence.
7. The motive behind the occurrence as alleged in the FIR and stated before the learned trial Court by the complainant was to the effect that one year prior to the present occurrence, Ghulam Hassan (appellant) had beaten Mst. Ambreen Bibi daughter of complainant and demanded money from them (complainant party) through his daughter. The matter was patched up through punchayat. Two days prior to the instant occurrence, the appellant had again gave beating to Mst. Ambreen Bibi, who had come to the house of complainant along with her children and the appellant in order to blackmail the complainant party used to torture his daughter and Asif Ali son of complainant reprimanded him. Due to this reason, the appellant bore grudge against Asif Ali (deceased) and in order to remove hurdle from his way, the appellant committed his murder. As per complainant, the matter was patched up through punchayat but no person from the said punchayat was brought forward during investigation. We may observe here that the quarrel between the spouses is not unusual in our culture. Moreover, no independent witness qua motive was produced during the course of investigation or 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.
8. In the FIR and before the learned trial Court, it was case of the prosecution that the appellant inflicted chhurri blows to Asif Ali (deceased) on different parts of his body. Dr. Abdullah Mangi, who conducted post-mortem examination of the dead body of deceased, appeared before the learned trial Court as PW.7 and furnished the medical evidence. The post-mortem examination report showing the said injuries on the person of deceased is available on record as Ex.PF & PF/1. Therefore, we hold that the ocular account is fully supported by medical evidence.
9. So far as the alleged recovery of chhurri (P.4) at the instance of appellant which was taken into possession vide recovery memo. Ex.PD is concerned, the same is of no avail to the prosecution because of the reason that the same was got recovered from Ehata Kabar owned by one Akhtar, which as conceded by Abid Hussain, Inspector/I.O. (PW.8) during cross-examination, was an open place, accessible to everyone and that the chhurri was of common pattern, easily available in the market.
10. 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 did not opt to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2), Code of Criminal Procedure nor produced any witness in support of 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.
11. From the above circumstances, we are of the considered view that even if the evidence of motive and recovery of chhurri (P.4) at the instance of appellant is excluded from consideration, there is sufficient incriminating evidence on the record against him in the form of straightforward and confidence inspiring ocular account furnished by Israr Hussain, complainant (PW.1) and Mohsin Raza (PW.2), fully supported by the medical evidence i.e. statement of Dr. Abdullah Mangi (PW.7) to maintain his conviction under Section 302(b) PPC, which is accordingly maintained. However, it is not a case of capital punishment because of the reasons: (i) the motive set up by the prosecution has not been believed by us; and (ii) the recovery of chhurri (P.4) at the instance of the appellant has not been proved.
12. All the above facts of the case lead us to the conclusion that there are extenuating circumstances, on the basis of which Ghulam Hassan (appellant) could not be made liable to the maximum punishment provided under Section 302(b) PPC, rather the ends of justice would be met, if his death sentence is converted into imprisonment for life. In this regard, reliance may be placed on the case law reported as “Mir Muhammad alias Miro vs. The State” (2009 SCMR 1188) and “Zafar Iqbal and others v. The State” (2014 SCMR 1227).
13. Therefore, while maintaining the conviction under Section 302(b), PPC, we alter the sentence of Ghulam Hassan (appellant) from death to imprisonment for life. The amount of compensation and the punishment in default thereof, as ordered by the learned trial Court, are maintained. Benefit of Section 382-B, Cr.P.C. is extended to the appellant. The appeal in hand stands dismissed with the above modification in the quantum of sentence.
14. Murder Reference No. 514 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Ghulam Hassan (convict) is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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