PLJ 2024 Cr.C. (Note) 257
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
versus
STATE--Respondent
Crl. A. No. 152-J & M.R. No. 13 of 2018, heard on 31.10.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--It was unseen occurrence--Quantum of sentence--Mitigating circumstances--Sentence was altered--Motive--Medical evidence--If evidence of motive and recovery is excluded from consideration, even then prosecution has proved its case beyond shadow of doubt against appellant through evidence discussed above--Firstly, single fire shot on person of deceased has been attributed to appellant and there is no allegation of repetition--Secondly, recovery of 30-bore pistol on pointing out of appellant has been discarded by us with reasons mentioned in para-8 of this judgment--Thirdly, motive story has also been disbelieved by us with reasons mentioned in para-7 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 fortunate incident. [Para 10 & 11] A & B
2008 SCMR 1664.
Mr. Mudassar Altaf Qureshi, Advocate for Appellant.
Mr. Muhammad Ali Shahab, DPG for State.
M/s. Mahr Sher Bahadar Luk, Mahr Muhammad Ilyas Wasli and Nadir Sultan Murali, Advocates for Complainant.
Date of hearing: 31.10.2022.
Order
Sadaqat Ali Khan, J.--Appellant (Muhammad Mumtaz) has been tried by learned trial Court in case FIR No. 235 dated 05.07.2017 offence under Section 302, PPC Police Station Thingi, District Vehari, and was convicted and sentenced vide judgement dated 29.01.2018 as under:
Muhammad Mumtaz (appellant)
U/S. 302(b), PPC Sentenced to DEATII as Tazir for committing Qatl-i-Amd of Muhammad Wasim (deceased) with compensation of Rs. 5,00,000/- payable to legal heirs of the deccased under Section 544-A, Cr.P.C. and in default whereof to further undergo simple imprisonment for 6-months.
Appellant has filed this Criminal Appeal against his conviction and learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.
2. Heard. Record perused.
3. Un-necessary facts apart, Muhammad Wasim was done to death in the street on 05.07.2017 at 12.15 p.m., FIR was lodged on the same day at 1.35 p.m. on the statement of his father Riaz Ahmad, complainant PW-8 against Muhammad Mumtaz (appellant) within one hour which being prompt one excludes the possibility of consultation and deliberation.
4. Riaz Ahmad, being complainant PW-8 stated before the learned trial Court that on 05.07.2017 at about 12.15 noon, he along with his son Muhammad Wasim (deceased) was going to see Muhammad Tariq (given up PW) and Muhammad Ashraf PW-9 residents of same village, the house of Muhammad Mumtaz (appellant) is in the “Chowk” of village, when he reached there, also saw Muhammad Ashraf PW-9 and Muhammad Tariq (given up PW) were coming from the opposite side. Meanwhile, all of a sudden Muhammad Mumtaz (appellant) came out from his “Baithik” and raised “Lalkara” to teach a lesson to complain against him, Muhammad Ashraf PW-9 has reiterated the same story before the learned trial Court. Both the eye-witnesses (Riaz Ahmad, complainant PW8 and Muhammad Ashraf PW9) further stated before the learned trial Court that in their view, Muhammad Mumtaz (appellant) brought out pistol from right fold of his “Shalwar” and made a fire shot hitting on the front side of chest of Muhammad Wasim (deceased). Both these eye-witnesses are, although, relatives of Muhammad Wasim (deceased), yet they have absolutely no grudge or ill-will to falsely implicate Muhammad Mumtaz (appellant) in the present case. They 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. The discrepancies in the statements of the PWs pointed out by learned counsel for the appellant, are minors and general in nature, occur in every case when witnesses (who are human being) are cross-examined after a long time of the occurrence as in present case, are not fatal to the prosecution case.
5(i). The argument of learned counsel for the Appellant that Riaz Ahmad, complainant PW-8 Muhammad Ashraf PW-9 (being father and maternal Uncle of Muhammad Wasim deceased respectively), are interested witnesses and are not reliable has no substance. The law is settled by now that the statement of the witness on account of being interested witness can only be discarded, if it is proved that an interested witness has ulterior motive on account of enmity or any other consideration. This Court has declined to give weight to this argument in absence of any reason leading to show that for some ulterior motive or on account of enmity, both the PWs have deposed falsely. The law is equally settled by now that a statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspires confidence (as in present case) in the mind of a reasonable and prudent person, in presence of said elements, the statement of a worst enemy of the accused can be accepted and relied upon without corroboration but in absence thereof the statement of a pious man can be rejected without second thought. Acid test of veracity of a witness is the inherent merit of his own statement.
(ii) The argument of learned counsel for the appellant that complainant party had substituted the real culprit with appellant has also no substance as both the witnesses having close relation with the deceased could not have substituted the real culprit with that of appellant as substitution is a rare phenomenon.
6. Medical evidence has been furnished by Dr. Rameez Iqbal PW-7 who during post-mortem examination on the dead body of Muhammad Wasim a observed single fire-arm entry wound on his chest attributed to Muhammad Mumtaz (appellant), which was ante-mortem in nature and was sufficient to cause death in ordinary course of nature, therefore, medical evidence has fully supported the ocular account furnished by the above mentioned eye-witnesses.
7. Motive of the occurrence stated by Riaz Ahmad, complainant PW8 was a quarrel took place on the same day about 9.00 A.M. between complainant party and Muhammad Asif etc and was patched up by the respectables. Muhammad Mumtaz (appellant) and his brother Azhar had supported Muhammad Asif etc. (opponents of the complainant party) whereupon his son, Muhammad Wasim (deceased) made complaint to Muhammad Mumtaz (appellant). The respectables, who allegedly got patched up between the complainant party and Muhammad Asif etc have also not been produced by the prosecution to prove motive story which is not believable.
8. Muhammad Ashraf PW9 being recovery witness stated before the learned trial Court that Muhammad Mumtaz (appellant) on 24.07.2017 during interrogation disclosed and got recovered .30-bore pistol from his house. Rough site plan of the place of recovery does not show the house of this witness around the place of recovery. I.O. had not joined any notable from the vicinity of place of recovery to witness the recovery proceedings which are not believable, (2008 SCMR 1064 “Ghulam Akbar and another vs. The State”).
9. Appellant has denied his involvement in present occurrence in his statement recorded under Section 342, Cr.P.C., and stated that it was an unseen occurrence, he has been made scapegoat and has been roped in this case by the complainant due to suspicion and rivalry but did not opt to appear under Section 340 (2), Cr.P.C. and also did not produce any defence evidence in support of his defence plea which has rightly been discarded by learned trial Court with sufficient reasons.
10. In view of above, if evidence of motive and recovery is excluded from consideration, even then prosecution has proved its case beyond shadow of doubt against appellant (Muhammad Mumtaz) through the evidence discussed above.
11. Coming to the quantum of sentence, we have noted some mitigating circumstances. Firstly, single fire shot on the person of Muhammad Wasim (deceased) has been attributed to Muhammad Mumtaz (appellant) and there is no allegation of repetition. Secondly, recovery of .30-bore pistol on pointing out of Muhammad Mumtaz (appellant) has been discarded by us with the reasons mentioned in para-8 of this judgment. Thirdly, motive story has also been disbelieved by us with the reasons mentioned in para-7 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.
12. Considering above, conviction of appellant (Muhammad Mumtaz) in offence under Section 302(b), PPC for committing the murder of Muhammad Wasim (deceased) is maintained but his sentence is altered from death to imprisonment for life. Benefit of Section 382-B, Cr.P.C. is also given to the appellant.
13. Consequently, with the above said modification in the impugned judgment, instant Criminal Appeal filed by the Muhammad Mumtaz (appellant) is hereby dismissed. Murder Reference is answered in NEGATIVE and death sentence of Muhammad Mumtaz (appellant) is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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