PLJ 2023 Cr.C. (Note) 94
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34--Qatl-e-amd--Conviction and sentence--Challenge to--Motive--Ocular account--Modification and quantum of sentence--If evidence of motive and recovery of 244 bore rifle are 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.11) and (PW.10) fully supported by medical evidence furnished by Dr. (PW.3) to maintain his conviction u/S. 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 244 bore rifle 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 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 11 & 12] A & B
2009 SCMR 1188 & 2014 SCMR 1227.
Ms. Sheeba Qaisar and Shumaila Arshad Rana, Advocates for Appellant.
Rana Muhammad Arif Kamal Noon, Prosecutor General and Rai Akhtar Hussain, Deputy Prosecutor General for State.
Chaudhary Rab Nawaz, Advocate for Complainant.
Date of hearing: 21.10.2021.
PLJ 2023 Cr.C. (Note) 94
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
NADEEM AHMAD--Appellant
versus
STATE and another--Respondents
Crl. A. No. 73403 of 2017 & M.R No. 372 of 2019,
heard on 21.10.2021.
Judgment
Shehram Sarwar Ch., J.--Nadeem Ahmad (appellant) along with his co-accused namely Muhammad Rizwan was tried by learned Addl. Sessions Judge, Faisalabad in case FIR No. 95 dated 26.02.2015 offence under Sections 302 and 34, PPC registered at Police Station Dijkot District Faisalabad for the murder of Zaheer Abbas, son of complainant. Vide judgment dated 30.06.2017 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 Muhammad Rizwan, co-accused of the appellant and no appeal against his acquittal was filed either by the State or the complainant, as conceded by learned Law Officers 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. 372 of 2019 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 written application (Ex.PA) of Muhammad Abbas, complainant (PW.11) is that on 26.02.2015 at around 8:35 a.m. he (complainant) along with his son Zaheer Abbas, Khalid Mahmood Arif (PW.10), Tanvir Shaukat and Muhammad Yaqoob (given up PWs) were sitting in his dera. Nadeem Ahmad (appellant) armed with rifle .44 bore along with two unknown accused persons armed with .30 bore pistol came there. The appellant made fire with rifle at Zaheer Abbas, which landed on his left shoulder. Zaheer Abbas caught the gun, whereupon the appellant made second fire with rifle, which hit on the left hand of Zaheer Abbas. Two unknown accused persons pushed Zaheer Abbas and fell him on the ground. The third fire made by the appellant was hit on the left side of head of Zaheer Abbas, while he was in fallen position as a result whereof he succumbed to the injuries on the spot. The accused persons raised lalkara that if anyone came near would be done to death and thereafter while brandishing their weapons fled away from the place of occurrence. Motive behind the occurrence as alleged in the FIR was that ten years ago Zaheer Abbas (deceased) had contracted love marriage with sister of the appellant and due to that grudge 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 was summoned by learned Addl. Sessions Judge, Faisalabad 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 Section 302/34, PPC was framed against them on 24.08.2015, 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 29.06.2017, 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 Prosecutor General and Deputy Prosecutor General for the State and gone through the record with their able assistance.
5. This unfortunate incident wherein Zaheer Abbas, son of the complainant was done to death, as per prosecution, took place on 26.02.2015 at 8:35 a.m. in the area of Chak No. 83/GB Thandian situated within the territorial jurisdiction of Police Station Dijkot District Faisalabad. The distance between the police station and the place of occurrence is five kilometers. The matter was reported to the police through written application (Exh.PA) of Muhammad Abbas, complainant (PW.11) on the same day at 9:30 a.m. i.e. just fifty five minutes after the occurrence. Moreover, the post-mortem examination of the dead-body of deceased was conducted on the same day at 5:15 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 Abbas, complainant (PW.11) and Khalid Mahmood Arif (PW.10), who are closely related to the deceased being his father and maternal uncle (mamoo). Admittedly, the occurrence took place in the dera of complainant (PW.11), therefore, his presence in his own dera at the time of incident is quite natural and probable. Khalid Mahmood Arif (P W. 10) is brother-in-law (Sala) of the complainant and his presence in the dera 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. In the FIR as well as before the learned trial Court it was the case of prosecution that the appellant was sole perpetrator for causing fire-arm injuries on the person of the deceased. 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 three fires with rifle at Zaheer Abbas (deceased), which landed on his left shoulder, left hand and left side of head. Dr. Javed Nabi, (PW.3), who conducted post-mortem examination on the dead body of the deceased, noted the above said injuries 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 ten years ago Zaheer Abbas (deceased) had contracted love marriage with sister of the appellant and due to that grudge the appellant committed murder of the deceased. Admittedly, the motive incident took place ten years prior to the occurrence and during the said interregnum no untoward incident took place between the parties. Moreover, no independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellant.
9. So far as alleged recovery of .244 bore rifle at the instance of the appellant is concerned the same is immaterial because the report of Punjab Forensic Science Agency qua said weapon is simply to the effect that ‘the item R1 rifle was examined and found to be in mechanical operating condition with safety features functioning properly.’ As far as alleged recovery of motorcycle 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.
11. From the above circumstances, we are of the considered view that even if the evidence of motive and recovery of .244 bore rifle are 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 Muhammad Abbas, complainant (PW.11) and Khalid Mahmood Arif (PW.10) fully supported by the medical evidence furnished by Dr. Javed Nabi (PW.3) to maintain his conviction under Section 302(b) which is accordingly maintained. However, it is not a case of capital punishment because of the reasons:- (i) motive as set up by the prosecution has not been believed by us and (ii) recovery of .244 bore rifle at the instance of the appellant is inconsequential.
12. The above said facts lead us to the conclusion that there are sufficient extenuating circumstances, on the basis of which the 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. Reliance is placed on case law titled as “Mir Muhammad alias Miro vs. The State” (2009 SCMR 1188) and “Zafar Iabal and others v. The State” (2014 SCMR 1227). Therefore, while maintaining the conviction under Section 302(b), PPC, we alter the sentence of the appellant from death to imprisonment for life. The amount of compensation and the punishment in default whereof as ordered by the learned trial Court are maintained. Benefit of Section 382-B, Code of Criminal Procedure is extended to the appellant. In view of the above, the appeal in hand is dismissed with the above modification in the quantum of sentence.
13. Murder Reference No. 372 of 2019 is answered in the NEGATIVE and the sentence of death awarded to Nadeem Ahmad (convict) is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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