PLJ 2023 Cr.C. (Note) 281
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch. JJ.
ASIF ALI alias SHARBATI--Appellant
versus
STATE--Respondent
Crl. A. No. 379-J & M.R No. 431 of 2013, heard on 13.3.2017.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Quantum of sentence--Alteration of sentence--Conviction and sentence--Challenge to-- Now, coming to quantum of sentence, we have noted some mitigating circumstances in present case--Firstly, recovery of 30-bore pistol P5 has become inconsequential in present case as D.P.G has submitted that crime empty recovered from place of occurrence had not been sent to FSL for comparison--Secondly, single fire shot has been attributed to appellant and there is no allegation of repetition of firearm injury on person of Nasir Khan deceased against appellant--Thirdly, motive story has been discarded with reasons mentioned in para-15 of this judgment--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--Therefore, death sentence awarded to appellant is harsh one-- Considering above, 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 thereof awarded by trial Court through impugned judgment are maintained and upheld--Benefit of section 382-B Cr.P.C is given to appellant. [Para 19 & 22] A & C
2014 SCMR 1227.
Benefit of doubt--
----Principle--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. [Para 20] B
2009 SCMR 1188.
Hafiz Agha Rooh-ul-Amin Zafar, Advocate for Appellant.
Syed Afzal Shah Bukhari, Advocate for Complainant.
Mr. Munir Ahmad Sayyal, DPG for State.
Date of hearing: 13.3.2017.
Judgment
Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 379-J of 2013 filed by Asif Ali alias Sharbati appellant (against his conviction) and M.R. No. 431 of 2013 sent by Trial Court for confirmation of death sentence of Asif Ali alias Sharbati appellant or otherwise, as both the above stated matters have arisen out of the same judgment dated 30.10.2013 passed by learned Additional Sessions Judge, Chunian according to which Asif Ali alias Sharbati appellant was convicted and sentenced as under:-
Asif Ali alias Sharbati s/o Muhammad Sharif
302(b), PPC | He was sentenced to DEATH along with compensation Rs. 3,00,000/-payable to the legal heirs of the deceased u/S. 544-A Cr.P.C. and in default thereof further undergo six months S.I. |
In case FIR No. 633 dated 15.12.2009 under Section 302/34, PPC Police Station Kangan Pur District Kasur.
2. The facts of the case have been stated by Bashir Ahmad Khan complainant (PW-8) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:
“On 15-12-2009, at about 01.30 p.m. Nasir Khan and Rashad were going towards Bazaar from taxi stand. When they reached in the chowk of block and Bazaar No. 2, Asif alias Sharbati armed with pistol .30-bore alongwith two unknown persons, who were chasing my brother Nasir, stopped him in the way and tried to quarrel with him. My brother Nasir and Rashad Khan proceeded towards eastern side alongwith Nazar Khan PW. When they reached on the soling of eastern side, one unknown accused raised Lalkara, upon which my brother Nasir turned back to see him and accused Asif alias Sharbati made fire with his pistol at my brother which hit him on the right side of chest, who fell down. Rashad and Nazar Khan PWs saw the occurrence. My brother Nasir succumbed to the injuries in the way of hospital.
The motive behind the occurrence was the quarrel in between accused Asif and my brother Nasir deceased two days prior to the occurrence on the conflict of fair of taxi car as both the deceased and accused were taxi drivers and at that time accused Asif extended threats of dire consequences to my brother Nasir deceased. Due to the said grudge, accused Asif murdered my brother. I reported the matter to police and got lodged FIR through written application Ex.P.E, which bears my signatures, on the basis of which, police lodged FIR which is Ex.P.E/1. The police reached at the spot and made necessary proceedings.”
3. After registration of the case, investigation started and on completion of the same report under Section 173 Cr.P.C was submitted in the trial Court.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 8.10.2010 against Asif Ali alias Sharbati appellant under Section 302/34, PPC to which he pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Muhammad Ishaq PW-1, Muhammad Hussain PW-2, Master Sadiq Ali Qamar PW-3, Najam-ul-Hassan 403/C PW-4, Muhammad Akram 851/C PW-5, Zaheer-ud-Din PW-6, Dr. Nawab Din PW-7, Bashir Ahmad Khan (complainant) PW-8, Rashid Khan PW-9, Nazar Khan PW-10, Niamat Ali S.I PW-11, Muhammad Rafique ASI PW-12 and Shahadat Ali S.I PW-13, whereas, PW Zakir Hussain 1060/C was given up by the prosecution being unnecessary and after tendering documentary Exh.PA to Ex.PP, closed the prosecution evidence.
6. Medical evidence has been furnished by Dr. Nawab Din (PW-7) who conducted post-mortem examination on the dead body of Nasir Khan s/o Punjab Khan deceased and observed as under:
“Injury.
An entry wound 1x 1 cm x chest cavity deep, in front of upper left chest, 11 C.M from mid line and 8 C.M from top of left shoulder, margins were inverted.
Opinion.
In my opinion the deceased had died due to hemorrhagic shock, due to bleeding from injured organs. Injury stated was ante-mortem, caused by fire-arm and was sufficient to cause death in ordinary course of nature. Probable time between injury and death was immediate and between death and post mortem was 6 to 7 hours.”
7. On the other hand, statement of Asif Ali alias Sharbati appellant was recorded under Section 342 Cr.P.C who refuted the allegations so leveled against him. The appellant neither opted to appear as witness under Section 340(2) Cr.P.C nor produced any defence evidence and in reply to question “why this case against you and why the PWs deposed against you?” Asif Ali alias Sharbati appellant replied as under: -
“PWs and complainant inter se related to each other. The accused belong to down trodden class of the society. The deceased has so many engagement with other bad blood due to enmity and found dead at the barren land of the Railway headquarter. No body actually known that who was the real culprit of this crime. The complainant and his family have suspicion towards me and the thus they involved me in this case falsely. I am innocent.”
8. After conclusion of the trial, learned trial Court convicted Asif Ali alias Sharbati appellant with above said sentence. Hence this appeal.
9. Learned counsel for the appellant has contended that:-
(i) The judgment of the trial Court dated 30.10.2013 is against law and facts on the file and is liable to be set-aside.
(ii) That the prosecution has failed to prove its case against the appellant/ convict as there are many major discrepancies in the statements of the PWs and the learned trial Court has convicted the appellant on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial Court is not maintainable in the eyes of law;
(iv) lastly submitted that instant appeal may be accepted and the judgment of the trial Court dated 30.10.2013 may kindly be set aside and appellant/ convict may be acquitted.
10. On the other hand, learned D.P.G assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that:-
(i) The prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the appeal.
11. We have heard the learned counsel for the appellant as well as learned D.P.G assisted by learned counsel for the complainant and perused the record.
12. The detail of prosecution case has already been given in Para-2 of this judgment, therefore, there is no need to repeat the same to avoid the duplication and repetition.
13. According to the FIR, occurrence took place on 15.12.2009 at 1.30-pm, whereas FIR was registered on the same day (15.12.2009) at 2-pm on the written application (Ex.PE) moved by Bashir Ahmad (complainant) PW-8, Real brother of Nasir Khan deceased. Place of occurrence is the passage near Block No. 2. The prosecution has introduced following accused in this case:-
1 One unknown culprit, who has not been traced till now as stated by learned D.P.G.
2 Asif Ali alias Sharbati. Appellant
Bashir Ahmad complainant PW-8 does not claim himself to be the eye-witness of the occurrence, rather Rashid Khan PW-9, and Nazar Khan, brother of Nasir Khan deceased PW-10 claim themselves to be the eye-witnesses of the occurrence. Rashid Khan PW-9 stated in his statement (examination-in-chief) as under:
“On 15-12-2009 at about 1.30 pm I was standing alongwith Nasir Khan (deceased of the case) at Taxi stand, Kanganpur. The deceased was my “Phopha”. We both going to the market “Bazzar” from Taxi stand, when we reached in the chowk of Market No. 2 of Block No. 2. Asif alias Sharbati accused armed with pistol .30-bore, present in the Court, came there with two unknown persons who were also armed with fire-arms and they were already chasing us, came there and stopped us. They engaged Nasir deceased upon which I rescued him. I and Nasir after this scuffle proceeded towards the soling of the eastern side. In the meanwhile Nazar Khan witness also joint us at the place of scuffle who came alongwith us. When we reached on the soling one of the unknown accused persons raised Lalkara upon which Nasir Khan deceased saw backwards. Asif alias Sharbati fired at Nasir Khan with his .30-bore pistol which landed on the left side of his chest. All the three accused made their escape good from the place of occurrence. Nasir Khan succumbed to the injury on the spot but we tried to shift him to the Civil Hospital Kanganpur for the treatment. Motive behind this occurrence is a conflict of fare in between deceased and Asif accused because both were Taxi driver by profession. Police reached at the place of occurrence in our presence, inspected the place of occurrence, took the blood stained earth, made recovery memos Ex. PF and I signed the same alongwith Nazar Khan and recorded our statements. My signatures upon Ex. PF is Ex. PF/1. I.O. also recorded our statements in this regard.”
Nazar Khan, brother of Nasir Khan deceased PW-10 has supported his evidence. Both these two eye-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.
14. Medical evidence has been furnished by Dr. Nawab Din (PW-7) who conducted post-mortem examination on the dead body of Nasir Khan deceased whose details are mentioned in Para-6 of the judgment, therefore, no need to repeat the same to avoid duplication and repetition. However, medical officer has observed fire-arm injury on the person of Nasir Khan deceased attributed to Asif Ali alias Sharbati appellant, which was ante-mortem and was sufficient to cause death in ordinary course of nature. Therefore, medical evidence has fully supported the ocular account furnished by above mentioned eye-witnesses.
15. Bashir Ahmad complainant (PW-8) stated in the FIR (Exh. PE/1) regarding motive of the occurrence as under:-
 |
No specific time, date and place of the quarrel mentioned in the motive story has been given by the PWs. Bashir Ahmad Khan complainant PW-8 admitted in the cross-examination that he had not mentioned any witness of the said quarrel in Exh.PE. He further admitted in the cross-examination that he himself was not a witness of this quarrel. Rashid Khan PW-9 has not stated in his statement (examination-in-chief) that quarrel between the appellant Asif Ali alias Sharbati and Nasir Khan deceased had taken place few days prior to the present occurrence, rather he has stated in his statement (examination-in-chief) regarding motive as under:
“Motive behind this occurrence is a conflict of fare in between deceased and Asif accused because both were Taxi driver by profession.”
Likewise, Nazar Khan PW-10 brother of Nasir Khan deceased has not stated in his statement (examination-in-chief) that quarrel had taken place few days prior to the present occurrence between Nasir Khan deceased and Asif Ali alias Sharbati appellant, rather he stated in his, statement regarding motive of the occurrence as under:
“Motive behind this occurrence is a conflict of fare in between deceased and Asif accused because both were Taxi driver by profession.”
Considering above, we are of the view that the prosecution has failed to prove the motive.
16. Recovery of .30-bore pistol P5 on pointing out of the appellant by Shahadat Ali SI PW-13 is inconsequential in the present case. Learned D.P.G has submitted that crime empty recovered from the place of occurrence had not been sent to FSL for comparison.
17. Adverting to the defence plea of Asif Ali alias Sharbati appellant, he stated in answer to question “why this case against you and why the PWs made statements to involve you?” as under:
“PWs and complainant inter se related to each other. The accused belong to down trodden class of the society. The deceased has so many engagement with other bad blood due to enmity and found dead at the barren land of the Railway headquarter, No body actually known that who was the real culprit of this crime. The complainant and his family have suspicion towards me and the thus they involved me in this case falsely. I am innocent.”
The appellant neither opted to appear as witness under Section 340(2) Cr.P.C. nor produced any defence evidence. Considering above, it is concluded that Asif Ali alias Sharbati appellant has failed to prove his defence plea and learned trial Court has rightly discarded his defence plea with sufficient reasons.
18. In view of the above discussion, even if evidence of motive and recovery of .30-bore pistol P5 is excluded from consideration, even then, the prosecution has proved its case beyond shadow of doubt against Asif Ali alias Sharbati appellant through ocular account furnished by above mentioned eye-witnesses supported by medical evidence discussed earlier.
19. Now, coming to the quantum of sentence, we have noted some mitigating circumstances in the present case. Firstly, recovery of .30-bore pistol P5 has become inconsequential in the present case as learned D.P.G has submitted that crime empty recovered from the place of occurrence had not been sent to FSL for comparison. Secondly, single fire shot has been attributed to the appellant and there is no allegation of repetition of fire-arm injury on the person of Nasir Khan deceased against the appellant. Thirdly, motive story has been discarded with the reasons mentioned in Para-15 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. Therefore, in our view death sentence awarded to the appellant is harsh one.
20. 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. Reliance is placed on case titled Mir Muhammad alias Miro vs. The State (2009 SCMR 1188) wherein the Hon’ble Supreme Court of Pakistan has held as under:
“it will not be out of place to emphasize that in criminal cases the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence.”
21. Further reliance is placed on case reported as Zafar labal and others v. The State (2014 SCMR 1227) in which Hon’ble Supreme Court of Pakistan has observed at page 1235 & 1238 as under:
“the question of awarding of sentence is required by law to be adverted to in every criminal case and it is the duty of the Court to always consider this aspect of the matter while awarding sentence. In the present case trial Court has awarded death sentence to the appellants, which has been maintained by the High Court and the murder reference has been answered in positive. On examination of the record certain facts have come to light, which needs to be given serious consideration and they probably have in them material on the basis of which the case of mitigation in sentences could be found. Although in the ocular account it is alleged that appellant Iftikhar has fired with a rifle at Jaffar Hussain deceased on his head and he has also fired at Abdaal Hussain deceased on the left side of his chest but the prosecution has not been able to secure or recover any fire-arm from this appellant. At the same time appellant Asghar Iqbal is alleged to have fired with his rifle at Abdaal Hussain deceased on his left ear with his rifle. Although 7 mm rifle was recovered on the pointation of this appellant but no recovery of empty of this rifle was made from the place of incident and there is no report of Forensic Science Laboratory (FSL) of connecting the recovered 7 mm rifle with the two crime empties recovered from the place of incident. It is also noted that the real motive as propounded in the prosecution version was against deceased Jaffar Hussain in that he was the one, who has beaten appellant Iftikhar. The motive being against deceased Jaffar Hussain, it is not understandable as to why the appellant after having murdered Jaffar Hussain will proceed covering distance and murder Jaffar Hussain’s two sons, namely, Abdaal Hussain and Abrar Hussain. This will go to show that something very obnoxious have happened at the place of occurrence of which neither the prosecution has given any evidence nor the same has come out from the side of defence. Thus the immediate circumstance or cause for the happening of the events, which culminated into the murder of three persons namely, Jaffar Hussain, Abdaal Hussain and Abrar Hussain are altogether shrouded in mystery.”
“All the above factors in the light of the law laid down by this Court as discussed above lead us to the conclusion that there are sufficient extenuating circumstance, on the basis of which the appellants could not be made liable to the maximum punishment provided under Section 302(b), PPC, rather the ends of justice would be met, if their death sentence is converted into imprisonment for life. While maintaining the conviction of the appellants and modifying the sentence benefit of Section 382-B Cr.P.C, this appeal is partially allowed in the above terms”.
22. Considering above, conviction of Asif Ali alias Sharbati appellant in offence under Section 302(b), PPC for committing the murder of Nasir Khan deceased is maintained but his sentence is altered from death to imprisonment for life. The compensation and sentence in default thereof awarded by the trial Court through the impugned judgment are maintained and upheld. Benefit of Section 382-B Cr.P.C is given to the appellant (Asif Ali alias Sharbati).
23. Consequently, with the above said modification in the impugned judgment, Criminal Appeal No. 379-J of 2013 is hereby dismissed. Murder Reference No. 431 of 2013 is answered in NEGATIVE and death sentence of Asif Ali alias Sharbati appellant is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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