PLJ 2024 Cr.C. (Note) 166
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Ali Zia Bajwa, JJ.
versus
STATE--Respondent
Crl. A. No. 78699-J & M.R. No. 327 of 2019, decided on 27.11.2023.
Crime Empty--
----Forensic Science Laboratory--It is, by now, well established proposition law that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. [Para 7] A
2002 SCMR 1986, 2007 SCMR 525 & 2008 SCMR 707.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 449, 324 & 109--Arms Ordinance, (XX of 1965), 13(2A)/20/65--Qatl-e-amd--Conviction and sentence--Challenge to--Extenuating circumstances--No solid evidence qua motive part of incident was produced by prosecution during trial--Moreover, sister of appellant who went to house of complainant and demanded rishta of Mst. “B” has been acquitted by trial Court and no appeal against her acquittal was filed by complainant--Prosecution has failed to substantiate motive against appellant--The prosecution’s failure to prove motive would constitute a mitigating circumstance for reducing sentence from death to imprisonment for life--Now Court take up version of appellant disclosed by him in his statement recorded u/S. 342, Code of Criminal Procedure--The appellant neither opted to appear as his own witness in disproof of prosecution allegations as provided u/S. 340(2), Code of Criminal Procedure nor did he produce any defence evidence--Considering above circumstances, it is concluded that appellant has failed to prove his version and trial Court has rightly discarded same with sufficient reasons--If evidence of motive and recovery of 30 bore pistol at instance of appellant is excluded from consideration, there is sufficient incriminating evidence on record against appellant 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.9 to maintain his conviction under Sections 302(b) and 449, PPC, which are 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 30 bore pistol allegedly effected from place of incident is inconsequential--There is extenuating circumstance, on basis of which appellant could not be made liable to maximum punishment provided under Section 302(b), PPC, rather ends of justice would be met, if his death sentence is converted into imprisonment for life--Appeal dismissed.
[Para 8, 9, 10 & 11] B, C, D & E
2014 SCMR 1464, 2009 SCMR 1188 & 2014 SCMR 1227.
Mr. Kamran Javed Malik, Advocate for Appellant.
Mr. Sultan Akbar Chatha, Deputy Prosecutor General for State.
Mr. Muhammad Tahir Ch., Advocate for Complainant.
Date of hearing: 27.11.2023.
Judgment
Shehram Sarwar Ch., J.--Hassan Younas (appellant) along with his co-accused namely Fouzia Bibi was tried by learned Addl. Sessions Judge, Pasrur in case FIR No. 304 dated 14.11.2018 offence under Sections 302, 449, 324 and 109, PPC read with Section 13 (2A) 20/65 AO, registered at Police Station Badiana District Sialkot for the murder of Beenish Rani daughter of complainant. Vide judgment dated 15.10.2019 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. 5,00,000/- (rupees five 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 six months S.I. He was further convicted under Section 449, PPC and sentenced to ten years rigorous imprisonment alongwith fine of Rs. 30,000/- and in default whereof to further undergo six months R.I. However, the appellant was acquitted of the charge under Section 324, PPC. Through the same judgment learned trial Court acquitted Fouzia Bibi co-accused of the appellant by extending her benefit of doubt and no appeal against her acquittal was filed either by the State or the complainant as conceded by learned Law Officer as well as learned counsel for the complainant. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 327 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 the 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.PE) registered on the written application (Ex.PA) of Muhammad Ramzan, complainant (PW.1) is that on 14.11.2018 at about 10:00 a.m. his daughter Beenish Rani aged about 18/19 years was busy in domestic work. Hassan Younas (appellant) entered his house by scaling over the wall and raised lalkara to kill Beenish Rani in case of refusal of her hand and made a straight fire with pistol upon the complainant who remained safe luckily. Thereafter, the appellant entered into the room of Beenish Rani and made a straight fire hitting on her head who fell, down and succumbed to the injuries. The appellant threw his pistol on the spot. Ehsan Ullah, PW closed the door of the room who had come to construct the kitchen of complainant. The police was intimated about the occurrence who came on the spot and apprehended the appellant and also recovered pistol 30 bore from the place of occurrence. Besides the complainant, the occurrence was witnessed by Ehsan Ullah and Shuja-ul-Haq, PWs. It was further alleged in the FIR that on preceding day i.e. 13.11.2018 Mst. Fouzia Bibi sister of appellant came to the house of complainant with regard to demand rishta. Mst. Haleema Bibi, mother and Mobeen Rani, younger daughter of complainant, respectively, were also present there and on their refusal, she said that the result of said refusal would not be better for them. On the day of occurrence Mst. Fouzia Bibi also came to the house of complainant and went away. The appellant committed the incident on the abetment of Mst. Fouzia Bibi.
3. We have heard arguments of learned counsel for the parties as well as learned Law Officer for the State to their entire satisfaction, given our serious consideration to their respective submissions and also perused the record.
4. This unfortunate incident wherein Mst. Beenish Rani daughter of complainant lost her life, as per prosecution, took place on 14.11.2018 at 10:00 a.m. in the area of Jassoran situated within the territorial limits of Police Station Badiana District Sialkot. The distance between the place of occurrence and the police station is six kilometers. The matter was reported to the police through application (Ex.PA) of Muhammad Ramzan, complainant (PW.1) on the same night at 4:00 p.m. The postmortem examination of the dead-body of deceased was conducted within eight hours of the occurrence. We have observed that complainant (PW.1) was real father of Mst. Beenish Rani (deceased) as well as paternal uncle of Ehsan Ullah (PW.2). In a situation of grief and shock, response of every person viz to report the incident to the police with promptitude or to join his/her mourning family, is different, hence, after considering the relevant circumstances, we are of the view that no adverse inference for not reporting the matter to the police promptly, by the complainant’s side can be drawn against the prosecution. Therefore, we hold that the delay in reporting the matter to the police is not conscious or deliberate.
5. The ocular account has been furnished by Muhammad Ramzan, complainant (PW.1) and Ehsan Ullah (PW.2). Admittedly, Muhammad Ramzan, complainant (PW.1) was inmate of the same house where the incident took place, therefore, his presence on the spot at the time of incident is quite natural and probable. So far as testimony of Ehsan Ullah (PW.2) is concerned, he was paternal nephew of complainant and has given a plausible reason for his presence on the spot at the time of incident which was to the effect that he has come to the house of complainant in order to construct his kitchen, therefore, his presence on the spot at the time of incident cannot be considered unnatural or improbable. The place of occurrence has not been disputed by the defense. The eye-witnesses were subjected to lengthy cross examination but they remained consistent on material aspects of the case and nothing favourable to the defense could be extracted. 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 firearm injuries on the person of Beenish Rani (deceased). Therefore, we hold that the witnesses of ocular account namely Muhammad Ramzan, complainant (PW.1) and Ehsan Ullah (PW.2) were present on the spot and had witnessed the occurrence.
6. In the FIR as well as before the learned trial Court it was the case of complainant that the appellant made straight fire at Beenish Rani hitting on her head. Dr. Naila Iqra (PW.9) who furnished the medical evidence noted the said injury on the person of deceased Therefore, we hold that ocular account is fully supported by medical evidence.
7. So far as the recovery of 30 bore pistol allegedly effected from the place of occurrence is concerned the same is immaterial because the appellant was arrested in this case on 14.11.2018 whereas according to the report of Punjab Forensic Science Agency (Exh.PP) the crime empty and the pistol were received together in the said office on 22.11.2018. It is, by now, well established proposition of law that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the case of “Jehangir vs. Nazar Farid and another” (2002 SCMR 1986), “Israr Ali vs. The State” (2007 SCMR 525) and “Ali Sher and others vs. The State” (2008 SCMR 707).
8. Motive behind the occurrence as alleged in the FIR was that on 13.11.2018 Mst. Fouzia Bibi sister of appellant came to the house of complainant and demanded the hand of Mst. Beenish Rani (deceased) for the appellant and on refusal by the complainant party the appellant committed the incident. No solid evidence qua motive part of incident was produced by the prosecution during the trial. Moreover, Mst. Fouzia Bibi sister of appellant who went to the house of complainant and demanded rishta of Mst. Beenish Rani has been acquitted by the learned trial Court and no appeal against her acquittal was filed by the complainant. Therefore, we hold that prosecution has failed to substantiate motive against the appellant. The prosecution’s failure to prove motive would constitute a mitigating circumstance for reducing the sentence from death to imprisonment for life. Reliance is placed on the case of “Naveed alias Needu& others vs. The State & others” (2014 SCMR 1464), relevant portion whereof is reproduced below:
“Upon our own assessment of the evidence available on the record we have felt no hesitation in concluding that the specific motive set up by the prosecution had indeed remained far from being established on the record. The law recently declared by this Court in the case of Ahmed Nawaz and another v. The State (2011 SCMR 593), Iftikhar Mehmood and another vs. Qaiser Iftikhar and others (2011 SCMR 1165) and Muhammad Mumtaz and another vs. The State and another (2012 SCMR 267) reiterates the settled and longstanding principle that failure of the prosecution to prove the motive set up by it may have a bearing upon the question of sentence and in an appropriate case such failure may result in reduction of a sentence of death to that of imprisonment for life for safe administration of justice.”
The same view was further fortified in the case titled as “Muhammad Shoban vs. The State” (2022 SCMR 1608).
9. 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 neither opted to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2), Code of Criminal Procedure nor did he produce any 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.
10. From the above circumstances, we are of the considered view that even if the evidence of motive and recovery of 30 bore pistol at the instance of appellant is excluded from consideration, there is sufficient incriminating evidence on the record against the appellant in the form of straightforward and confidence inspiring ocular account furnished by Muhammad Ramzan, complainant (PW.1) and Ehsan Ullah (PW.2) fully supported by the medical evidence i.e. statement of Dr. Naila Iqra (PW.9) to maintain his conviction under Sections 302(b) and 449, PPC, which are 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) the recovery of 30 bore pistol allegedly effected from the place of incident is inconsequential.
11. All the above facts of the case lead us to the conclusion that there is extenuating circumstance, 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. In this regard, we respectfully refer the cases titled as “Mir Muhammad alias Miro vs. The State” (2009 SCMR 1188) and “Zafar Iqbal and others v. The State” (2014 SCMR 1227).
12. Therefore, while maintaining the conviction under Section 302(b), PPC, we alter the sentence of Hassan Younas (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. The conviction/sentence under Section 449, PPC awarded by the learned trial Court is also maintained. Both the sentences were ordered to run concurrently. Benefit of Section 382-B, Code of Criminal Procedure is extended to the appellant. The appeal in hand stands dismissed with the above modification in the quantum of sentence.
13. Murder Reference No. 327 of 2019 is answered in the NEGATIVE and the sentence of death awarded to Hassan Younas (convict) is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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