PLJ 2024 Cr.C. (Note) 102
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram and Muhammad Tariq Nadeem, JJ.
versus
STATE etc.--Respondents
Crl. A. No. 525 of 2017 & M.R. No. 44 of 2021, heard on 23.11.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-i-amd--Conviction and sentence--Challenge to--Medical evidence--Recovery of weapon--Modification in quantum of sentence--The matter was reported to police with sufficient promptitude which excluded any chance of deliberation or consultation on part of prosecution--The defence could not bring on record any ulterior motive of complainant or eye witness which could be considered as a valid reason of false implication of appellant in this case and when defence fails to attribute any malice on part of prosecution witnesses, they are considered as witnesses--High Court is not satisfied with sentence of death awarded by trial Court to appellant on said murder charge, because, Court have noted certain mitigating circumstances in his favour calling for reduction in quantum of his sentence--Firstly, Court found recovery of weapon of offence as inconsequential--Secondly, prosecution has failed to prove motive against appellant/accused as Court have observed in preceding paragraph that what was actual cause of occurrence remained shrouded in mystery--Thirdly, according to prosecution’s own version, appellant had made single fire shot and he did not repeat same despite having opportunity.
[Para 7, 8 & 12] A, B & D
Substitution of Actual Culprit--
---- It is by now well settled law that substitution of actual culprit especially in cases where one’s kith and kin was done away before his own eyes is rare phenomenon. [Para 8] C
2017 SCMR 1662 and 2021 SCMR 1507.
M/s. Syed Muhammad Jaffar Tayyar and Kamran Asif, Advocate for Appellant.
Mr. Muhammad Riaz Ahmad Sagla, Additional Prosecutor General for State.
Ch. Amir Sohail Dhillon, Advocate for Complainant.
Date of hearing: 23.11.2023.
Judgment
Muhammad Tariq Nadeem, J.--Through this single judgment, we intend to dispose of Crl. Appeal No. 525 of 2017 filed by Muhammad Shabbir alias Sabir appellant against his conviction and sentence along with Murder Reference No. 44 of 2021 submitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to appellant, as both these matters have originated from judgment dated 28.04.2017 passed by the learned Additional Sessions Judge, Burewala, District Vehari in case FIR No. 417 dated 19.12.2013, under Sections 302, 109, 34, PPC, registered at Police Station Sahuka, District Vehari, whereby the learned trial Court while acquitting Muhammad Nawaz co-accused (of the charge of abetment), convicted and sentenced the appellant as under:
U/S. 302 (b), PPC.
Death as Tazir for committing Qatl-e-Amd of Muhammad Majeed and also to pay Rs. 300,000/- as compensation to the legal heirs of the deceased or in default to undergo 06-months S.I.
2. The prosecution story unfolded in FIR (Ex.PC/1) got lodged by Atta Muhammad Complainant (PW.3) and reiterated in his statement before the learned trial Court reads as under:
“Stated that I am native of Chah Kamal Wala and former by profession. I have two sons namely Habibullah and Muhammad Majeed @ 20/21 years respectively. At the distance of about ½ acre from my house, Bashir Ahmed’s house situates who is my nephew and son of Muhammad Hussain. He has two sons namely Muhammad Shabir Sabir and Muhammad Saeed alongwith a daughter namely Kishwar BB @ 16/17 years. Muhammad Majeed, my son desired to marry Kishwar BB. Bashir, Nawaz and Shabir suspected illegitimate intimacy between Muhammad Majeed and Kishwar BB and upon this grudge, they hurled threats. Muhammad Majeed left for Lahore out of fear. Three days thereafter Shabir @Sabir and Muhammad Nawaz phoned my son to come back as they were ready to arrange his marriage as desired. On 17-12-2013, Muhammad Majeed my son returned to home and disclosed that Shabir alias Sabir and Muhammad Nawaz, the accused had called him on telephone with a promise of giving hand of Kishwar BiBi.
On 19-12-2013 I accompanied by Muhammad Majeed, my son Amant Ali S/O Dhona and Allah Yar S/O Ahmed Yar went to Noshera Moad at about 10:00 AM for purchasing households. While on way back and following Muhammad Majeed, my son at the distance of 1-acre, he passed from front of house of Bashir Ahmed, Shabir @ Sabir suddenly emerged from his hideout of make-shift cattle yard and he was armed with .12 bore Repeater. Shabir @ Sabir yelled that Muhammad Majeed will be taught lesson of playing with their honour. Majeed tried to run away and Shabir @ Sabir fired with his gun which hit backside of head of Majeed. Majeed fell down. Shabir @ Sabir succeeded to escape while taking assault weapon with him. I and Amanat attended to Muhammad Majeed, my son who had succumbed to injuries on the spot. Leaving Amanat and Allah Yar to guard the corpse, I met Javed Ahmed SI who was on Patrol duty at Wagha Basti to whom I presented complaint Ex. PC which was thumb-marked by me in token of its correctness.
3. After completion of investigation, report under Section 173 Cr.P.C. was prepared and submitted before the learned trial Court. The Learned trial Court after observing all legal formalities as provided under the Code of Criminal Procedure, 1898, framed charge against the accused to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced nine witnesses. Atta Muhammad complainant (PW.3) and Amanat Ali (PW.4) have furnished ocular account. Arshad Rehman, retired civil draftsman appeared as PW.2 and deposed about preparation of scaled site plan of the place of occurrence as Ex.PB, Ex.PB/1-2. Tanveer Ahmad (PW.5) identified the dead body of deceased. Muhammad Ramzan 185/C (PW.6) drafted formal FIR (Ex.PC/1) and also received certain parcels from Investigating Officer to keep the same in safe custody and then handed over to Muhammad Nawaz 716/C (PW.9) and Iftikhar Ahmad 895/C for onward transmission to the office of PFSA. Muhammad Riaz 303/C (PW.7) was the witness of recovery of pump action (P.7) at the instance of appellant vide recovery memo. (Ex.PG). Javed Ahmad S.I (PW.8) being Investigating Officer stated about the various steps taken by him during investigation of the case. Medical evidence was furnished by Doctor Rana Masood MO (PW.1), who conducted post-mortem on the dead body of Muhammad Majeed deceased and prepared autopsy report (Ex.PA).
Rest of the prosecution witnesses are almost formal in nature. The prosecution gave up Allah Yar PW being unnecessary and closed its evidence after tendering the reports (Ex.PL and Ex.PM) of the Punjab Forensic Science Agency Lahore.
Thereafter, the statements under Section 342, Cr.P.C. of the accused were recorded, wherein they refuted the allegations levelled against them and professed their innocence. However, they neither opted to depose on oath within the scope of Section 340(2), Cr.P.C. not led any evidence in their defence.
The trial concluded in a manner as has already been mentioned in paragraph No. 1 above, hence, the appeal against conviction and sentence as well as and connected murder reference before us.
4. Learned counsel for the appellant submits that the appellant has been falsely implicated in this case by the complainant party; that eye-witnesses of the case are not only inter-se related but they are inimical towards the appellant, therefore, their evidence is not reliable without independent corroboration which is very much lacking in this case; that the medical evidence is in conflict with the ocular account of the prosecution’s case; that fake recovery of weapon of offence was planted upon the appellant, which is even otherwise inconsequential in the light of PFSA report (Ex.PM); that it is an established view of the apex Court of the country that a slightest doubt in the prosecution evidence was sufficient to give benefit to the accused, whereas the case in hand is full of doubts; that the prosecution has failed to prove the motive part of the case; that the appeal in hand may be accepted and the appellant may be acquitted of the charge.
5. Conversely, learned Additional Prosecutor General assisted by learned counsel for the complainant argued that the appellant is duly named in FIR with specific role of causing fire shot injury to Muhammad Majeed deceased; that the appellant committed brutal murder of an innocent person and the prosecution witnesses, who witnessed the occurrence, are residents of same vicinity where the occurrence took place and as such there remained no chance of any misidentification of the appellant; that in such like cases, substitution is a rare phenomenon; that medical evidence is in line with the ocular account; that the recovery of crime weapon lends further support to the prosecution case; that motive has also been proved by the prosecution; that the prosecution has proved its case beyond the shadow of any doubt; that the appeal filed by the appellant/convict may be dismissed and murder reference be answered in affirmative.
6. We have heard the learned counsel for the appellant as well as learned Additional Prosecutor General assisted by learned counsel for the complainant and have minutely scrutinized the record with their assistance. For reappraisal of evidence, we have taken everything into our consideration in the light of arguments advanced by both the sides and found that in order to prove the charge against the appellant, the prosecution has mainly relied upon the statements of two eye witnesses namely Atta Muhammad Complainant (PW.3) and Amanat Ali (PW.4), medical evidence, recovery of weapon and lastly the evidence of motive.
7. According to the prosecution version, the occurrence in this case had taken place on 19.12.2013 at about 10:00 a.m. while the machinery of criminal law was set into motion by Atta Muhammad Complainant (PW.3) through written application (Ex.PC), in consequence whereof FIR (Ex.PC/1) was registered at Police Station Sahuka at 11:15 a.m. The distance between the place of occurrence and the above said police station was six kilometers. Keeping in view the above circumstances of the case, we are quite confident to hold that the matter was reported to the police with sufficient promptitude which excluded any chance of deliberation or consultation on the part of prosecution. Reliance is placed upon the cases titled as “Muhammad Hayat and another v. The State” (2021 SCMR 92) and “Abdul Wasay and others vs. The State and others” (2021 SCMR 1059).
8. Ocular account of the incident in issue has been furnished by Atta Muhammad Complainant (PW.3) and Amanat Ali (PW.4). Atta Muhammad Complainant (PW.3) was the real father of Muhammad Majeed (deceased) while Amanat Ali (PW.4) was an independent witness, who only belonged to the brotherhood of complainant party. The complainant while appearing before the trial Court reiterated the same facts as had been earlier narrated by him in FIR (Ex.PC/1) and his statement has been fully corroborated by Amanat Ali (PW.4). Both the aforementioned eye-witnesses have sufficiently explained their presence at the spot at relevant time, which even otherwise is established through the suggestions put by defence itself during cross-examination on them. They have also successfully elucidated the mode and manner of occurrence and have categorically stated before the trial Court that it was only the appellant, who had made fire shot and caused firearm injury on the body of deceased, which proved fatal and left no room for his survival. The occurrence had taken place within the area of Mouza Dad Jamlera Kamal Wala, which aspect of the case lends corroboration from the statement of Arshad Rehman, retired civil draftsman (PW.2), who prepared scaled site plans of the place of occurrence (Ex.PB and Ex.PB/1-2), according to which, there was no obstacle in viewing the appellant by the eye-witnesses at the time when he caused firearm injury to the deceased, even no suggestion was made to the eye-witnesses about their inability to identify the appellant from the distance where he was standing at the time of occurrence. The defence has made lengthy cross-examination upon the PW.3 and PW.4 but their credibility could not be shattered rather they remained consistent upon the salient features of the case.
Apart from the above, the defence could not bring on record any ulterior motive of the complainant or the eye-witness which could be considered as a valid reason of false implication of the appellant in this case and when the defence fails to attribute any malice on the part of prosecution witnesses, they are considered as reliable witnesses. Guidance can be sought from the cases of “Muhammad Aslam v. The State” (2012 SCMR 593). “Gul Zarin and others vs. Kamal ud Din an others” (2022 SCMR 1085) and “Ijaz Ahmad vs. The State and another” (2022 SCMR 1577).
Similarly we are of the unanimous view that due to close and blood relations of the complainant with the deceased, he was not likely to let off the actual perpetrator of the offence by falsely implicating the appellant, against whom he admittedly had no previous malice, ill-will, animosity or grudge. It is by now well settled law that substitution of actual culprit especially in cases where the one’s kith and kin was done away before his own eyes is rare phenomenon. Reliance is placed on the cases of “Zahoor Ahmad v. The State” (2017 SCMR 1662) and “Zia Ullah vs. The State” (2021 SCMR 1507).
9. So far as the arguments that medical evidence runs contrary to the prosecution version is concerned, we have observed that the medical evidence is in complete harmony with the ocular testimony and no conflict could be pointed out to create dent in the prosecution case as firearm injury on the person of Muhammad Majeed deceased is reflected in his post-mortem report (Ex.PA), which ultimately became the cause of his unnatural death as opined by Doctor Rana Masood, MO (PW.1), who conducted autopsy on his dead body. The firearm injury observed by the doctor on the person of Muhammad Majeed deceased is specifically attributed by eye-witnesses to the appellant. Furthermore, ocular evidence about the kind of weapon used during the occurrence, time of incident and locale of injury as narrated by eye- witnesses has also fully tallied with medical evidence. It may be observed here that this witness (PW1) was also subjected to cross-examination but nothing beneficial to the appellant could be extracted from him.
10. The recovery of the weapon of offence i.e. pump action (P.7) from appellant’s custody through recovery memo. (Ex.PG) is not much helpful to the prosecution’s case in the absence of any wedding report of PFSA, therefore, it cannot be held that it was the same weapon which was used by appellant during the occurrence.
11. Now the only evidence left with the prosecution is in the shape of motive set up by Atta Muhammad complainant (PW.3) in FIR (Ex.PC/1) that his son Muhammad Majeed was murdered because of suspicion of his illicit relations with Kishwar Bibi, real sister of appellant, however, it is an admitted position in this case that the op.-cit. Kishwar Bibi was never joined with the investigation by the Investigating Officer. Furthermore, it was also the stance of prosecution that the appellant used to extend murder threats to the deceased due to which the deceased left his residence and went to Lahore, but no such report was ever made by the complainant party to the police as has been frankly admitted by Atta Muhammad complainant (PW.3) during cross-examination upon him. We are therefore, of the view that the prosecution has not satisfactorily established the motive alleged against the appellant and what was the actual bone of contention between the appellant and the deceased, remained shrouded in mystery.
12. After considering the prosecution case from all pros and cons, we have come to a definite conclusion that even if we exclude the evidence of recovery and motive from consideration, the prosecution has still left with sufficient evidence to successfully prove its case against the appellant qua murder of Muhammad Majeed through confidence inspiring ocular account furnished by Atta Muhammad complainant (PW.3) and Amanat Ali (PW.4), which is duly supported by medical evidence. As far as the conviction of Muhammad Shabbir alias Sabir appellant on the charge of committing murder of Muhammad Majeed deceased is concerned, we find no earthly reason to differ with the findings of learned trial Court and are of the considered view that his conviction is neither unfounded nor does it suffer from any legal infirmity.
However, we are not satisfied with the sentence of death awarded by learned trial Court to the appellant on the said murder charge, because, we have noted certain mitigating circumstances in his favour calling for reduction in quantum of his sentence. Firstly, we found the recovery of weapon of offence as inconsequential. Secondly, the prosecution has failed to prove the motive against the appellant/accused as we have observed in preceding paragraph that what was the actual cause of occurrence remained shrouded in mystery. Thirdly, according to prosecution’s own version, the appellant had made single fire shot and he did not repeat the same despite having the opportunity, therefore, we are of the view that alternate sentence of imprisonment for life to Muhammad Shabbir alias Sabir appellant, which is also a legal sentence, shall meet the ends of justice. Wisdom has been derived from the cases reported as “Mir Muhammad alias Miro v. The State” (2009 SCMR 1188), “Muhammad Nadeem Waqas and another v. The State” (2014 SCMR 1658), “Zafar Iqbal and others v. The State” (2014 SCMR 1227), “Ghulam Mohy-ud-Din alias Haji Babo and others vs. The State” (2014 SCMR 1034) and “Qaddan v. The State” (2017 SCMR 148).
13. In the light of what has been discussed above, conviction awarded to Muhammad Shabbir alias Sabir appellant by the learned trial Court on the charge of offence under Section 302(b), PPC is maintained, however, his sentence is altered from death to imprisonment for life. The amount of compensation imposed upon the appellant and imprisonment in default thereof is maintained. However, benefit of Section 382-B, Cr.P.C. is extended in his favour.
14. Consequently with the above modification in the quantum of sentence of the appellant, Criminal Appeal No. 525 of 2017 is hereby dismissed.
15. Murder Reference No. 44 of 2021 is answered in Negative and death sentence of Muhammad Shabbir alias Sabir (Convict) is not confirmed.
(A.A.K.) Appeal dismissed
0 Comments