PLJ 2025 Cr.C. (Note) 247
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
NAUMAN alias NOMI--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 125 of 2020 & M.R. No. 31 of 2019, heard on 3.9.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
محرک-بازیابی-طبی ثبوت-سزا کا مجموعہ - اپیل کنندہ کو قبرستان سے کھلی جگہ کی طرف اشارہ کرنے پر اپیل کنندہ اور چوری کے آخری پہنے ہوئے کپڑوں کی بازیابی قابل اعتماد نہیں ہے ۔ اگر مقصد اور وصولی کے ثبوت کو غور سے خارج کر دیا گیا ہے ، تب بھی استغاثہ نے ثبوت کے ذریعے اپیل گزار کے خلاف اپنے کیس کو شک کے سائے سے بالاتر ثابت کیا ہے-کچھ تخفیف کن حالات ؛ سب سے پہلے ، شریک ملزم کو بری کر دیا گیا ہے ؛ دوسرا ، اس فیصلے کے پیراگراف 11 میں مذکور وجوہات کے ساتھ چوری کی بازیابی پر ہم نے کفر کیا ہے ، اور تیسرا ، اس فیصلے کے پیراگراف 9 میں مذکور وجوہات کے ساتھ محرک کہانی پر بھی کفر کیا گیا ہے ۔ اس معاملے میں اس بات کا تعین نہیں کیا جا سکتا کہ واقع ہونے کی اصل وجہ کیا تھی اور واقع ہونے سے فورا پہلے کیا واقع ہوا تھا جس کے نتیجے میں موجودہ بدقسمت واقعہ پیش آیا ۔ اپیل مسترد کر دی گئی ۔
----Ss. 302(b), 324, 336, 337-A(i)--Qatl-e-amd--Conviction and sentence--Motive--Recovery--Medical evidence--Quantum of sentence-- Recovery of last worn clothes of appellant and Churri on pointing out of appellant from graveyard being open place is not believable--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--Some mitigating circumstances; firstly, co-accused have been acquitted; secondly, recovery of Churri has been disbelieved by us with reasons mentioned in para 11 of this judgment, and thirdly motive story has also been disbelieved by with reasons mentioned in para 9 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--Appeal dismissed. [Para 11, 13 & 14] A, B & C
2014 SCMR 1227.
M/s. Ch. Muhammad Saeed Machra and Mehar Noor Hussain Maloka, Advocates for Appellant.
Mr. Adnan Latif Sheikh, DPG for State.
M/s. Muhammad Bilal Butt, Sanaullah Khan Tareen and Hammad Afzal Bajwa, Advocates for Complainant.
Date of hearing: 3.9.2024.
Judgment
Sadaqat Ali Khan, J.--Appellant (Nauman alias Nomi) along with his co-accused i.e. Miraj alias Maju, Kamran alias Kami, Imran alias Mani and Robina alias Rubi (since acquitted) has been tried by the trial Court in case FIR No. 462 dated 28.05.2017 in offences under Sections 302, 324, 34, 109, 337-F(i), 337-A(i), 337-F(iv) and 334, PPC Police Station Mumtazabad, District Multan, and was convicted and sentenced vide judgement dated 21.03.2019 as under:
Nauman alias Nomi (appellant)
U/S. 302(b), PPC Sentenced to DEATH as Tazir for committing Qatl-i-Amd of Imran (deceased) with compensation of
Rs. 3,00,000/- payable to legal heirs of deceased u/S. 544-A, Cr.P.C. recoverable as arrears of land revenue and in default whereof to undergo simple imprisonment for 6-months.
U/S. 324, PPC Sentenced to rigorous imprisonment for 6-years
U/S. 336, PPC Sentenced to imprisonment for 6-years with payment of Arsh (13% of Diyat u/S. 337-T, PPC) to Umer injured.
U/Ss. 337-A(i), Sentenced to imprisonment for. 1-year in
337-F(i), 337-F(ii) each offence with Daman of total
and 337-F(iv), Rs. 1,00,000/- which was ordered to be paid
PPC equally to the injured.
2. Appellant has filed this Criminal Appeal against his conviction and the trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.
3. Heard. Record perused.
4. Imran was done to death whereas his sons Ali Imran, Umer Imran PW-9, Usman Imran and daughter Fiza sustained injuries during the occurrence took place in their house on 27.05.2017 at 10:30 p.m. whereafter FIR was lodged on the same night at 12:30 a.m. (28.05.2017) on the statement of Sheikh Irfan-PW-7 (real brother of Imran deceased), who stated before the trial Court as under:-
“Stated that I along with Kamran, Aman & Imran are running business of commission shop jointly in Gala Mandi, Multan. My brother Imran was disabled by his right leg due to Polio. He was married with a lady namely Mst. Rubi daughter of Samad caste Sheikh r/o inside Bohar Gate Multan, belonging to a poor family. My deceased brother Imran had four children from the womb of his wife Rubi, namely Ali aged about 11-year, Umer aged about 08-year, Usman aged about 04-year and daughter namely Fiza aged about 05-year. Due to his disability, the wife of my brother Imran namely Rubi used to transfer his assets to her brothers under the greed and selfishness. Due to said reason, Rubi & my deceased brother Imran, used to quarrel with one another.
On 27-May-2017, at about 10:30 pm, I along with Kamran, Aman & Imran were present at our house with other members of family. Imran was present with his children in his house which is in front of our house. We heard the hue & cry from the house of Imran. In the meanwhile, our door was knocked. I opened the door of my house and saw my nephew namely Ali present in injured condition at the door of my house. He told us that his uncle (Mamo) Nouman alias Nomi had been causing injures to his father & brothers with Churri. I along with Kamran, Aman rushed to the house of Imran, where we saw in the light of bulb of residential room that Imran was being injured by accused Nouman alias Nomi with Churri. Imran received injuries on right & left side of chest and armpit. On raising hue & cry by us the accused Nouman alias Nomi managed to escape from the spot through back door of the room of Imran, while displaying the weapon Churri. He left his motorcycle at the spot in confusion and accompanied the Maraj alias Maji and Imran alias Mani on their motorcycle already parked outside the house of Imran (deceased). When we tried to rescue Imran and his children till then deceased Imran was expired due to serious injuries. The children also received serious injuries on various parts of their body including face. We rushed along with the children to the Nishtar Hospital.”
Sheikh Amanullah PW-8 and Umer injured PW-9 while appearing before the trial Court have reiterated the same story.
5. Appellant is brother-in-law/Sala of Imran (deceased) and maternal uncle/Mamu of injured children. Having this close relationship, there is no question of misidentity of the appellant. All these three witnesses have absolutely no grudge or ill-will against appellant to falsely implicate him in the present case. They were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated one another 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 straightforward, trustworthy, confidence inspiring and cannot be discarded mere on probabilities.
6. Ali Imran, Usman Imran and Fiza (injured) due to their tender age have not appeared before the trial Court.
7. 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 (who are human beings) are cross-examined after a long time of the occurrence as in present case, are not fatal to the Prosecution case.
8. Medical evidence has been furnished by Dr. Mukhtar Ahmad PW-1 and Dr. Saira Khan PW-2, who during medical examination of Ali Imran, Umer Imran, Usman Imran and Fiza (injured) observed injuries on their persons attributed to the appellant. Likewise, Dr. Mukhtar Ahmad PW-1 during post-mortem examination on the dead body of Imran (deceased) observed injuries on his person attributed to the appellant which were ante-mortem in nature and were 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 including injured witness.
9. Motive of the occurrence as introduced by the complainant was that Rubi (co-accused since acquitted) wife of Imran (deceased) and mother of minor children wanted to grab the property and money of Imran (deceased) after his murder whereas Imran (deceased) wanted to contract second marriage due to strained relations with his wife Rubi. This motive is not believable as Umer injured PW-9 (real son of the deceased and Rubi (co-accused since acquitted)) did not utter even a single word in this respect, rather stated in his examination-in-chief that his mother had gone to perform Umrah.
10. Statedly, appellant during investigation, got recorded his confessional statement u/S. 164, Cr.P.C. but same has been retracted.
11. Recovery of last worn clothes of the appellant and Churri on pointing out of the appellant from the graveyard being open place is not believable.
12. Appellant has denied his involvement in this case in his statement recorded u/S. 342, Cr.P.C. and stated that he is innocent and has falsely been involved in this case. He has neither opted to appear u/S. 340 (2), Cr.P.C. nor produced defence, evidence except certain documents in support of his defence plea which has rightly been discarded by the trial Court through the impugned judgment with sufficient reasons.
13. 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 through the evidence discussed above.
14. Coming to the quantum of sentence, we have noted some mitigating circumstances; firstly, co-accused have been acquitted; secondly, recovery of Churri has been disbelieved by us with the reasons mentioned in para 11 of this judgment, and thirdly motive story has also been disbelieved by us with the reasons mentioned in para 9 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. (2014 SCMR 1227) “Zafar Iqbal and others vs. The State”.
15. Considering above, conviction of the appellant (Nauman alias Nomi) in offence under Section 302(b), PPC for committing the murder of Imran (deceased) is maintained but his sentence is altered from death to imprisonment for life. ULTA The compensation and sentence in default thereof awarded by the trial Court through the impugned judgment are maintained and upheld. Conviction and sentences of the appellant (Nauman alias Nomi) on other heads are also maintained. Sentences of the appellant shall run concurrently with benefit of Section 382-B, Cr.P.C.
16. Consequently, with the above said modification in the impugned judgment, instant Criminal Appeal filed by the appellant (Nauman allas Nomi) is hereby dismissed. Murder Reference is answered in NEGATIVE and death sentence of Nauman alias Nomi (appellant) is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
0 Comments