PLJ 2023 Cr.C. (Note) 33
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Quantum of sentence--Mitigating circumstances--No motive alleged--The motive in this case is shrouded in mystery--Prosecution did not allege any motive against appellant--It is not determinable in this case that as to what had actually happened prior to occurrence and what was real cause of occurrence which had resulted into present unfortunate incident, therefore, in our view death sentence awarded to appellant is quite harsh-- Prosecution failed to prove motive part of prosecution story and reason for this brutal incident which had taken place in odd hours of night at a place not surrounded by Abadi Deh and what happened immediately before incident provoking both appellants to cause such number of injuries with dattars on person of deceased is not known to anyone, as such, same shrouds in mystery--In such an eventuality same can be considered as a mitigating circumstance for showing leniency in favour of appellants in matter of punishment--Appeal dismissed. [Para 15] A & B
2011 SCMR 593, 2014 SCMR 1658, 2013 SCMR 583 &
PLD 2017 SC 152.
M/s. Rana Naveed Ahmad Khan, Muhammad Afzal Shuja, Ch. Imtiaz Ahmad Waince & Sheeba Qaisar, Advocates for Appellant.
Rai Asghar Hussain, Deputy Prosecutor General for State.
Mian Muhammad Awais Mazhar, Advocate for Complainant.
Date of hearing 7.9.2021.
PLJ 2023 Cr.C. (Note) 33
[Lahore High Court, Lahore]
present: Malik Shahzad Ahmad Khan and Muhammad Tariq Nadeem, JJ.
MUHAMMAD MUZAMMAL and another--Appellants
versus
STATE and another--Respondent
Crl. A. No. 104973 & M.R. No. 623 of 2017, decided on 7.9.2021.
Judgment
Malik Shahzad Ahmad Khan, J.--This judgment shall dispose of Criminal Appeal No. 104973 of 2017 filed by Muhammad Muzammal (appellant) against his conviction and sentence and Murder Reference No. 623 of 2017 sent by the learned trial Court for confirmation or otherwise of the sentence of Death awarded to Muhammad Muzammal (appellant) by the learned trial Court. We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 31.10.2017 passed by the learned Addl. Sessions Judge, Faisalabad.
2. Muhammad Muzammal (appellant) along with Muhammad Akram (co-accused since acquitted) was tried in case FIR. No. 624 dated 13.08.2016 registered at Police Station Millat Town District Faisalabad in respect of offences under Sections 302/34 of PPC. After conclusion of the trial, the learned trial Court vide its judgment dated 31.10.2017 has convicted and sentenced Muhammad Muzammal appellant as under: -
Under Section 302 (b), PPC to ‘Death as tazir’ for committing Qatl-i-Amd of Muhammaa Humayoun Wahla Advocate (deceased). He was also ordered to pay Rs. 3,00,000/- (rupees three hundred thousand only) to the legal heirs of the deceased as compensation under Section 544-A of Cr. P. C and in default thereof to undergo simple imprisonment for six months.
However, the learned trial Court vide the aforementioned judgment has acquitted Muhammad Akram co-accused by extending him the benefit of doubt.
3. Brief facts of the case as given by the complainant Shah Jehan Babar (PW-7) in his complaint (Exh.PC/1), on the basis of which the formal FIR (Exh.PC) was chalked out, are that he (complainant) was serving as Deputy District Attorney District Bhakkar. On 13.08.2016, he was present at his home due to leave. At about 07:00 p.m., the complainant along with his brother, namely, Muhammad Humayoun Wahla Advocate (deceased) came to Lawyers Housing Society Chak No. 198/R.B (Faisalabad) while riding a jeep, where Tanveer-ur-Rehman Randawa President Lawyers Housing Society (PW-8) and Tanveer Riaz, Advocate (given up PW) were already sitting on chairs in front of the office of Society. The complainant and Muhammad Humayoun Wahla (deceased) also sat on the chairs along with aforementioned PWs and started consultation. Outer lights of the office were on. At about 08:30p.m., Muhammad Mazammal (appellant) while armed with repeater gun .12 bore and Muhammad Akram (co-accused since acquitted) while empty handed came there. Muhammad Akram (co-accused since acquitted) pointed towards Muhammad Humayoun Wahla (deceased) upon which Muhammad Muzammal (appellant) made a fire shot with repeater gun .12 bore which hit at the face, neck and head of Muhammad Humayoun Wahla (deceased). The complainant along with his companions tried to apprehend the accused persons but they succeeded in fleeing away from the spot. The occurrence was witnessed by the complainant and the aforementioned PWs. The complainant and his companions attended to Muhammad Humayoun Wahla who succumbed to the injuries at the spot.
4. The appellant Muhammad Muzammal was formally arrested in this case on 08.09.2016 by Aftab Ahmad S.I/H1U (PW-10). On 14.09.2016, Muhammad Muzammal appellant led to the recovery of repeater gun .12 bore (P-5), which was taken into possession vide recovery memo. (Exh.PG). After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused on 05.01.2017, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced ten witnesses during the trial. Shah Jehan Babar (PW-7) & Ch. Tanvir-ur-Rehman Randhawa, Advocate (PW-8) are the witnesses of ocular account. They also furnished the evidence regarding the recovery of repeater gun .12 bore(P-5) on the pointation of the appellant. The medical evidence in this case was furnished by Dr. Muhammad Shafique, Senior Demonstrator PMC,
Muhammad Asghar, Inspector (PW-9) and Aftab Ahmad SI/HIU (PW-10) were the Investigating Officers of this case.
Muhammad Naveed Aslam 4232/C (PW-1), Muhammad Nawaz Draftsman (PW-2), Muhammad Ilyas 2455/C (PW-3), Ehsan-ul-Haq 930/HC (PW-4) & Shahzad Waseem (PW-6) were the formal witnesses.
The prosecution also produced documentary evidence in the shape of scaled site-plan (Exh.PA & Exh.PA/1), memo of possession of blood stained clothes i.e. T-shirt (P-l), Pant (P-2), Underwear (P-3) and one glass bottle containing pellets (P-4) (Exh.PB), FIR (Exh.PC), compliant (Exh.PC/1), post-mortem report and pictorial diagrams of Muhammad Humayoun Wahla (deceased) (Exh.PD), (Exh.PD/1) & (Exh.PD/2), Injury Statement (Exh.PE), Inquest Report (Exh.PF), memo of possession of repeater gun .12 bore(P-5) (Exh.PG), rough site-plan of the place of recovery of gun .12 bore(Exh.PG/3), memo of possession of blood stained cotton (Exh.PH), memo of possession of empty cartridge (Exh.PJ), rough site-plan of the place of occurrence (Exh.PK), report of PFSA regarding DNA and Serology Analysis (Exh.PL), report of PFSA regarding weapon of offence (Exh.PM) and closed its evidence.
6. The statements of the appellant and his co-accused under Section 342 of Cr.P.C. were recorded. The appellant refuted the allegations levelled against him and professed his innocence. While answering to a question that ‘Why this case against you and why the PWs have deposed against you” the appellant Muhammad Muzammal replied as under:
“I have no idea about my involvement in this case.”
The appellant Muhammad Muzammal neither opted to make his statement on oath as envisaged under Section 340(2) Cr.P.C., nor he produced any evidence in his defence.
The learned trial Court vide its judgment dated 31.10.2017 found the appellant guilty, convicted and sentenced him as mentioned and detailed above however, Muhammad Akram co-accused was acquitted of the charge by extending him the benefit of doubt.
7. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant being in league with the local police; that there is delay of 03 hours in lodging the FIR which has created doubt regarding the truthfulness of the prosecution story; that there is delay of 11½ hours in conducting the post-mortem examination on the dead body of the deceased which is also suggestive of the fact that the prosecution’s eye witnesses were not present at the spot at the time of occurrence and the above-referred delay was consumed in procuring the attendance of fake eye witnesses; that the complainant was posted as D.D.A at Chiniot at the time of occurrence therefore, he was not present at the time of occurrence; that both the eye witnesses were not residents of the place of occurrence as the occurrence took place in Chak No. 198/R.B of P.S: Millat Town Faisalabad, whereas, both the eye witnesses of this case are residents of Madina Town District Faisalabad and they could not establish their presence at the spot at the relevant time through any cogent and valid reason; that the occurrence took place at night time but no bulb was taken into possession by the I.O to establish that there was any light to identify the accused persons in the darkness of night; that recovery of repeater gun .12 bore(P-5) was affected from an open place which was accessible to public therefore, the said recovery cannot be relied upon; that no motive whatsoever has been alleged against the appellant; that an empty (P-6) was recovered from the spot on 13.08.2016 vide recovery memo. (Exh.PJ) but the same was sent to the office of PFSA, Lahore on 22.08.2016 i.e. with the delay of 09 days from the occurrence; that Shah Jehan Babar complainant (PW-7) could not tell during his cross-examination that as to who had informed the police about the occurrence and who had shifted the dead body of the deceased to the hospital; that it was alleged by the prosecution that Muhammad Akram (co-accused since acquitted) pointed towards the deceased whereupon Muhammad Muzammal appellant made fire shot at the deceased but the abovementioned co-accused has been acquitted by the learned trial Court which has created serious dent in the prosecution story; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of any doubt. It is therefore, prayed that the instant appeal may be allowed and the appellant may be acquitted of the charge by extending him the benefit of doubt.
8. On the other hand, this appeal has been opposed by the learned Deputy Prosecutor General assisted by learned counsel for the complainant while contending that the FIR in this case was promptly lodged which rules out the possibility of any concoction or deliberation in the prosecution story; that both the prosecution’s eye witnesses had no enmity with the appellant to falsely implicate him in this case; that both the eye witnesses are natural eye witnesses of the occurrence because the occurrence took place in the Lawyers Housing Society and both the eye witnesses are Advocates by profession; that the occurrence took place in front of the office of the Lawyers Housing Society where presence of electricity was quite natural and the same has duly been shown in site-plan (Exh.PA & Exh.PA/1); that Shah Jehan Babar complainant (PW-7) is real brother of the deceased and substitution in such like cases is a rare phenomenon; that the prosecution case is further corroborated by the recovery of repeater gun .12 bore (P-5) on the pointation of the appellant vide recovery memo (Exh.PG) and positive report of PFSA, Lahore (Exh.PM); that mere non-proof of motive does not extend any benefit to the appellant; that the prosecution has proved its case against the appellant beyond the shadow of doubt therefore, this appeal may be dismissed, Murder Reference may be answered in the positive and the sentence of death awarded to the appellant by the learned trial Court may be upheld & maintained.
9. Arguments heard. Record perused.
10. The occurrence in this case took place on 13.08.2016 at 08:30 p.m. The matter was reported to the police on the same night and the FIR (Exh.PC) was also lodged on the same night i.e. on 13.08.2016 at 11:15 p.m. The distance between the police station and the place of occurrence was 6 kilometers. Keeping in view the time of occurrence, the place of occurrence and its distance from the police station, we are of the view that there was no deliberate or conscious delay in reporting the matter to the police.
11. The ocular account of the prosecution was furnished by Shah Jehan Babar complainant (PW-7) and Ch. Tanvir-ur-Rehman Randhawa, Advocate (PW-8). Shah Jehan Babar (PW-7) is the real brother of Muhammad Humayoun, Advocate (deceased). Even Shah Jehan Babar complainant (PW-7) himself is an Advocate by profession and he was performing his duty as Deputy District Attorney at Chiniot. It is further noteworthy that the occurrence took place in front of the office of Lawyers Housing Society situated in Chak No. 198/R.B within the jurisdiction of Police Station Millat Town District Faisalabad. Place of occurrence (office of Lawyers Housing Society Chak No. 198/R.B Faisalabad) has not been disputed in this case by the accused/defence. As both the eye-witnesses of the occurrence i.e. Shah Jehan Babar complainant (PW-7) & Ch. Tanvir-ur-Rehman Randhawa (PW-8) are lawyers by profession therefore, their presence at the spot at the relevant time is neither unnatural nor improbable. It is true that Shah Jehan Babar complainant (PW-7) was posted as D.D.A at Chiniot at the time of occurrence but he has categorically stated during his examination-in-chief that on the day of occurrence, he had come to
12. Medical evidence of the prosecution was furnished by Dr. Muhammad Shafique, Senior Demonstrator PMC, Faisalabad (PW-5). The said witness stated that on 14.08.2016 at 08:00 a.m., he conducted post-mortem examination on the dead body of Muhammad Humayoun deceased and found the following injuries on his body:-
INJURIES:
1.A. A 1x1 cm wound of fire-arm entry was present in front of forehead in right side 4 cm from midline 8 cm above the right eye brow.
2.A. A fire-arm wound of entry 1x1 cm on right side of face 4 cm from the right eye 5 cm from right ear.
3.A. A fire-arm wound of entry 2x1 cm on right side of face on lower jaw 3 cm from right ear 8 cm from right corner of mouth laterally.
4.A. A fire-arm wound of entry 1x1 cm on chin of left side (lower part of chin) half cm from midline to left 1x1½ cm below the chin.
5.A. A fire-arm wound of entry 1 x ½ cm on right side of upper lip 2 cm from midline 2 cm from nostrial teeth and upper jaw was broken on right side.
6.A. A fire-arm wound of entry in front of neck 4 cm from midline to right side and 4 cm above the right clavical.
6.B. A bruised area of 4x5 cm on left side of chest 5 cm from midline 3 cm from mid of medial border of left scapula.
7.A&B. A fire-arm wound of entry and exit on upper part of right side of chest just close to the top of shoulder joint 1½ x 1cm in size 8 cm from base of neck 7 cm below from right shoulder joint top.
Note. On exploration of brain 3 metalic projectile were discovered in the brain tissue. Upper and lower jaw bone (maxilla and mandible) of right side also fractured.
It was case of the prosecution that fire shot made by the appellant with his .12 boregun landed on the face, neck and head of Muhammad Humayoun deceased and the evidence of abovementioned prosecution’s eye witnesses has fully been supported by the medical evidence furnished by Dr. Muhammad Shafique (PW-5). It is true that there is delay of 11½ hours in conducting the post-mortem examination on the dead body of the deceased but it is noteworthy that Dr. Muhammad Shafique (PW-5) has categorically stated in his examination-in-chief that the dead body was received in the dead house on 13.08.2016 at 11:25 p.m. Under the circumstances, it cannot be held that the occurrence was unseen and the abovementioned delay was consumed in transporting the dead body to the hospital as the same remained lying unattended due to non-availability of any eye witness. As per opinion of Dr. Muhammad Shafique (PW-5), probable time that elapsed between the injuries and death was immediate and between the death and post-mortem examination was 10/15 hours. The said time of occurrence given by the Medical Officer coincides with the time of occurrence, given by the abovementioned prosecution’s eye witnesses. We are therefore, of the view that the medical evidence furnished in this case through Dr. Muhammad Shafique (PW-5) has fully supported the evidence of prosecution’s eye witnesses.
13. Prosecution case is further corroborated by the recovery of repeater gun .12 bore (P-5) on the pointation of the appellant vide recovery memo. (Exh.PG) and positive report of PFSA, Lahore (Exh.PM). It is noteworthy that empty (P-6) was recovered from the spot on 13.08.2016 vide recovery memo. (Exh.PJ) and the same was deposited in the office of PFSA,
14. We have noted that no motive whatsoever has been alleged in this case by the prosecution. However, if motive has not been alleged by the prosecution, even then sufficient incriminating evidence is available on record to prove the prosecution case against the appellant. As discussed earlier, the prosecution case has been proved through the reliable and confidence inspiring evidence of eye-witnesses, namely, Shah Jehan Babar complainant (PW-7) and Ch. Tanvir-ur-Rehman Randhawa, Advocate (PW-8). They stood the test of lengthy cross-examination but their evidence could not be shaken regarding the role played by the appellant during the occurrence. The ocular account of the prosecution as given by Shah Jehan Babar complainant (PW-7) and Ch. Tanvir-ur-Rehman Randhawa, Advocate (PW-8) about the role of the appellant is fully supported by the medical evidence furnished by Dr. Muhammad Shafique (PW-5), as well as, post-mortem report of Muhammad Humayoun deceased (Exh.PD), pictorial diagrams (Exh.PD/1) & (Exh.PD/2). The time of occurrence, the kind of weapon used, the nature of injury inflicted by the appellant to the deceased, all these facts as stated by the abovementioned eye-witnesses were fully supported by the aforementioned medical evidence. The prosecution case is further corroborated by the recovery of repeater gun .12 bore(P-5) at the instance of the appellant vide recovery memo. (Exh.PG) and positive report of PFSA, Lahore (Exh.PM) therefore, we hold that the prosecution has proved its case against the appellant beyond the shadow of any doubt.
15. Now coming to the quantum of sentence, we have noted a mitigating circumstance in favour of the appellant. The motive in this case is shrouded in mystery. The prosecution did not allege any motive against the appellant. It is not determinable in this case that as to what had actually happened prior to the occurrence and what was the real cause of occurrence which had resulted into the present unfortunate incident, therefore, in our view the death sentence awarded to the appellant is quite harsh.
While treating it a case of mitigation, we have fortified our views by a judgment of the Hon’ble Supreme Court of Pakistan reported in the case of ‘Ahmad Nawaz and another vs. The State’ (2011 SCMR 593) wherein at page 604, the Hon’ble Apex Court of the country, has been pleased to lay emphasis as under:
The recent trend of the Courts with regard to the awarding of penalty is evident from several precedents. In the case of ‘Iftikhar-ul-Hassan v. Israr Bashir and another’ (PLD 2007 SC 111), it was held that ‘this is settled law that provisions of Section 306 to 308, PPC attracts only in the cases of Qatl-i-Amd liable to Qisas under Section 302(a), PPC and not in the cases in which sentence for Qatl-e-amd has been awarded as Tazir under Section 302(b) PPC. The difference of punishment for Qatl-e-amd as Qisas and Tazir provided under Section 302(a) and 302(b) PPC respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under Section 302(b) PPC and exercise of this discretion in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in ‘which qisas is not enforceable, the Court in a case of Qatl-e-Amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in ‘Ghulam Muretaza v. State’ (2004 SCMR 4), ‘Faqir Ullah v. Khalilpuz-Zaman (1999 SCMR 2203), ‘Muhammad Akram v. State’ (2003 SCMR 855) and ‘Abdul Salam v. State’ (2000 SCMR 338). The Court while maintaining the conviction under Section 302(b) PPC awarded him sentence of life imprisonment under the same provision and also granted him the benefit of Section 382-B of Cr.P.C. In Muhammad Riaz and another vs. The State (2007 SCMR 1413) while considering the penalty for an act of commission of Qatl-e-Amd it was observed that “No doubt, normal penalty for an act of commission of Qatl-eAmd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case.”
(In Iftikhar Ahmad Khan v. Asghar Khan and another (2009 SCMR 502) it has been noted that:-)
“In other words, the law has conferred discretion upon the Court to withhold the penalty of death and to award the punishment of imprisonment for life, if the outlook of a particular case requires that course” (underlining, italic and bold supplied).”
In the case of ‘Muhammad Nadeem Waqas and another vs. The State’ (2014 SCMR 1658), the Hon’ble Supreme Court of Pakistan at Page No. 1661 has held as under:-
“8…………… the prosecution failed to prove motive part of the prosecution story and the reason for this brutal incident which had taken place in odd hours of night at a place not surrounded by Abadi Deh and what happened immediately before the incident provoking both the appellants to cause such number of injuries with dattars on the person of deceased is not known to anyone, as such, the same shrouds in mystery. In such an eventuality the same can be considered as a mitigating circumstance for showing leniency in favour of the appellants in the matter of punishment”
(Bold & underlining is supplied for emphasis)
Similar view has been taken by the Hon’ble Supreme Court of Pakistan in the cases of ‘Ahmad and another vs. Shafiq-ur-Rehman and another’ (2013 SCMR 583) and ‘Amjad Shah vs. The State’ (PLD 2017 Supreme Court 152).
16. In the light of above discussion, the conviction of Muhammad Muzammal under Section 302(b), PPC awarded by the learned trial Court is maintained but his sentence is altered from death to imprisonment for life. The compensation awarded by the learned trial Court against the appellant and sentence in default thereof are maintained and upheld. The benefit of Section 382-B of Cr.P.C. is also extended in favour of the appellant.
17. Consequently, with the above said modification in the sentence of Muhammad Muzammal appellant, Criminal Appeal No. 104973 of 2017 filed by the appellant is hereby dismissed. Murder Reference (M.R. No. 623 of 2017) is answered in the negative and death sentence of Muhammad Muzammal appellant is not confirmed.
(A.A.K.) Appeal dismissed
0 Comments