PLJ 2026 Cr.C. (Note) 10
[Lahore High Court, Lahore]
Present: Qazi Muhammad Amin Ahmad and Sardar Ahmed Naeem, JJ.
ARIF HUSSAIN SHAH etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 220, P.S.L.A. No. 27 & M.R. No. 59 of 2013,
heard on 20.9.2017.
Pakistan Penal Code, 1860 (XLV of 1860)--
S. 302 (b)-- - - پارٹیوں کے بچوں کے درمیان جھگڑا اس جرم کا محرک تھا - - فریقین کے درمیان سابقہ دشمنی - - چشم دید گواہوں نے اپنے معائنے میں کہا ہے کہ اپیل کنندہ نے مرنے والے کو صرف ایک فائر آرم کی چوٹ پہنچائی اور واقعہ کے وقت فریقین کے درمیان جو کچھ ہوا وہ ایک خفیہ اسرار i.e. واقعہ ایک لمحے میں پیش آیا اور یہ منصوبہ بند قتل نہیں تھا - - لہذا ، اگر ان تمام نکات کو اجتماعی طور پر مدنظر رکھا جائے ، تو یہ تخفیف کا معاملہ ہے - - اس نے متوفی پر گولی چلائی جو متوفی پر گر گئی اور اسے طبی شواہد سے مدد ملتی ہے ، لہذا ، متوفی کے قتل کے لیے پی پی سی کی دفعہ 302 (بی) کے تحت اس کی سزا برقرار ہے ۔ اسے PW.4 کے شخص پر فائر آرم کی چوٹ سے بھی منسوب کیا گیا ہے ، اس طرح اس کی سزا اور ٹرائل کورٹ کے ذریعہ سیکشن 324 ، پی پی سی کے تحت ریکارڈ کی گئی سزا بھی برقرار ہے ۔ - اپیل کنندہ کو دی گئی سزائے موت کو عمر قید میں تبدیل کر دیا جاتا ہے - سزاؤں کو بیک وقت چلانے اور سیکشن 382-B ، Cr.P.C کا فائدہ اٹھانے کی ہدایت کی جاتی ہے ۔ اپیل کنندہ تک بھی توسیع دی گئی ہے-اپیل مسترد کر دی گئی ۔
----S. 302(b)--Murder reference--Qatl-e-amd--Quantum of sentence--Motive--A quarrel between children of parties was a motivating factor for this crime--Previous enmity between parties--The eye-witnesses in their examination in chiefs have stated that appellant caused only single fire-arm injury to deceased and what exactly transpired between parties at time of occurrence remained a shrouded mystery i.e. incident took place at spur of moment and was not premeditated murder--Therefore, if all these points are collectively taken into consideration, that it is a case of mitigation--He fired at deceased which landed on deceased and finds support from medical evidence, therefore, his conviction under Section 302(b), PPC for murder of deceased is maintained He is also attributed a fire-arm injury on person of PW.4, thus his conviction and sentence recorded by trial Court under Section 324, PPC is also maintained--The sentence of death awarded to appellant is converted into imprisonment for life--The sentences are directed to run concurrently and benefit of Section 382-B, Cr.P.C. is also extended to appellant--Appeal dismissed. [Para 22 & 23] A, B & C
PLD 1962 SC 502; PLD 2007 SC 111; 2003 SCMR 1164;
2006 SCMR 1175 & 2007 SCMR 994.
M/s. Azam Nazir Tarar and Hamza Hassan Tiwana, Advocates for Appellant (in Crl. Apeal No. 220 of 2013).
Mr. Muhammad Waqas Anwar, Deputy Prosecutor General for State.
M/s. Liaquat Ali Sindhu and Irfan Saeed, Advocates for Complainant/Petitioner (in PSL A. No. 27 of 2013).
Date of hearing: 20.9.2017.
Judgment
Sardar Ahmed Naeem, J.--Arif Hussain Shah, appellant, Syed Tufail Hussain Shah and Mukhtar Hussain Shah co-accused (since acquitted), were tried by the learned Addl. Sessions Judge, Sarai Alamgir in in a private complaint filed by the complainant under Sections 302, 324, 452, 148, 149, PPC being dissatisfied with the investigation of case FIR No. 201 dated 16.7.2011, for offences under Sections 302, 324, 452, 148, 149, PPC registered at Police Station Sarai Alamgir, District Gujrat, lodged by Fayyaz Ahmad complainant, for committing the murder of his real brother of Muhammad Riaz deceased where, Arif Hussain appellant was kept in column No. 3 of the report under Section 173, Cr.P.C. and Syed Tufail Hussain Shah and Mukhtar Hussain Shah co-accused found not involved in the commission of occurrence and placed them in Column No. 2 of the said report. At the conclusion of the trial vide judgment dated 24.1.2013, the learned trial Court acquitted Syed Tufail Hussain Shah and Mukhtar Hussain Shah co-accuse I and convicted and sentenced the appellant Arif Hussain Shah as under:
“Under Section 302(b), PPC and sentenced to death with a direction to pay a sum Rs. 6,00,000/-to the legal heirs of deceased as compensation under Section 544-A, Cr.P.C., in default in payment thereof, to undergo six months S.I.”
(ii) Under Section 324, PPC and sentenced to 7 years R.I with the direction to pay Rs. 1,00,000/-compensation ordered to be paid to injured Afzaal Ahmad, in default thereof, to undergo six months SI.
Benefit of Section 382-B, Cr.P.C. was also extended to him.
2. Arif Hussain Shah appellant filed Criminal Appeal No. 220 of 2013, challenging conviction and sentence awarded to him whereas Muhammad Fayyaz complainant filed P.S.L.A. No. 27 of 2013 against the acquittal of Syed Tufail Hussain Shah and Muhammad Hussain Shah respondents. Murder Reference No. 59 of 2013 is also before us for confirmation or otherwise of his death sentence awarded to Syed Arif Hussain Shah. Through this single judgment, we propose to dec de all these matters.
3. The prosecution version, as set-forth in the complaint (Exh.PD) on the basis of which FIR (Exh.PD/1) was lodged by Muhammad Fayyaz complainant, was that on 16.07.2011 at 8.30 p.m., he along with his brother Afzaal Ahmad, injured PW were present in the house of their brother Riaz Masood deceased. The bell of the house rang. Riaz Masood deceased opened the door of the gate whereupon Arif Hussain Shah appellant along with Tufail Hussain Shah co-accused (since acquitted), while armed with .30 bore Pistol entered the gate whereas Mukhtar Shah co-accused along with two unknown persons were standing in the street. Tufail Hussain Shah while raising lalkara fired hitting Riaz Masood deceased on upper side of the thigh. Arif Shah appellant fired with his Pistol hitting the deceased on his head. The complainant along with Afzaal PW came forward to rescue their brother whereupon both the accused made firing. The shot fired by Tufail Shah hit Afzaal Ahmad on his left leg and shot fired by Arif Shah hit Afzaal Ahmad on his right arm. On hearing alarm, the accused persons standing in the street made aerial firing and one shot hit Mukhtar Hussain Shah accused. The accused while firing fled away from the spot. Riaz Masood and Afzaal Ahmad injured were removed to the Police Station. The occurrence was also witnessed by Imran Hussain apart from Riaz and Afzaal. Motive behind the scene was that during day time, a quarrel took place between the children, due to this Judge the accused attacked the complainant party.
4. Initially formal FIR under Sections 324, 452, 148, 149, PPC was chalked out. On the same day, Riaz Masood was expired, hence Section 302, PPC was added. After registration of FIR, the investigation was conducted by the local police, who placed appellant, in Column No. 3 in report under Section 173, CP.C whereas found Tufail Hussain Shah and Mukhtar Hussain Shah not involved in the commission of offence and placed then in Column No. 2 of the challan, therefore, the complainant filed a private complaint.
5. In the private complaint, after recording cursory statements of the witnesses, the accused were summoned and charge against them was framed to which, they pleaded not guilty and claimed trial, hence the prosecution evidence was invited.
6. In order to prove its case, the prosecution examined as many as five witnesses in all and the learned trial Court examined seven CWs. Dr. Faisal Malik, Medical Officer (PW-1) conducted post-interterm examination on the dead body of Muhammad Riaz Masood and found Sthe following injuries on his person:
“INJURIES:
1) A fire-arm wound 5 x 5 cm at right temporal region 1 cm above ear with inverted margin.
2) A fire-arm exit wound 1 x 1 cm with everted margins on the back of head at occipital region.
3) A fire-arm injury wound 1 x 1 cm at right iliac supine region with inverted margin, exit wound.
4) A fire-arm exit wound 1 x.5 cm with everted margin at the growing of left thigh.”
In his opinion, the death was occurred due to shock and excessive bleeding due to injuries mentioned above. All injuries were ante-mortem and fatal in the ordinary course of nature and caused by fire-arm weapon. The probable time between the injuries and death was immediate and between death and postmortem was 5 to 6 hours. Carbon copy of postmortem report is Exh.PA and diagrams Exh.PA/1 and Exh.PA/2 showing the locale of injuries were in his hand and signed by him.
7. On 16.07.2011 at 9.00 p.m., he conducted medical examination of Muhammad Afzaal Ahmad injured and found the following injures on his person:-
“INJURIES:
1) A fire-arm wound 0.5 x 0.5 cm on left thigh anterior aspect with inverted margin (entry wound)
2) A fire-arm exit wound 1 x 1 cm on the medial aspect of left thigh with everted margins”
3) A fire-arm wound 1 x 1 cm on right forearm laterally with inverted margin (entry wound)
4) A fire-arm exit wound 2 x 1 cm in swelling on right forearm medial aspect with everted margins.
8. Novaiz Ahmad (PW-2) got conducted got conducted post mortem of Riaz Masood deceased.
9. Fayyaz Ahmad (PW-3) was complainant of the FIR. He supported the prosecution story as mentioned in the FIR and private complaint. Afzaal Ahmad (PW-4) was eye-witness of the occurrence and also injured. He corroborated the statement of the complainant.
10. Imtiaz Ahmad (PW-5) identified the dead body. He was also witness of blood stained cotton vide Memo. Exh.PF, six empties of .30 bore pistol and one empty of .44 bore rifle vide Memo Exh.PG, last worn clothes of the deceased vide Memo Exh.PC and recovery of .30 bore Pistol with five live bullets vide Memo Ex, PJ.
11. The learned trial Court examined seven CWs. Muhammad Arif S.I. (CW-6) conducted the investigation of the case. On 16.7.2011 at about 9.00/10.00 pm, Muhammad Afzaal Constable produced before him copy of FIR. He reached at THQ Hospital, Kharian, inspected the dead body of Riaz Masood deceased, prepared injury statement Exh.CW6/A and inquest report (CW6/B). He reached and inspected the place of occurrence, collected blood through cotton from the place of occurrence Exh.PF, six empties of .30 bore Pistol and one of .244 bore rifle Exh. PG and prepared rough site-plan Exh. CW6/D. On 27.7.2011, he arrested Tufail Hussain Shah and Arif Hussain Shah and on 29.7.2011 he arrested Mukhtar Hussain Shah accused. On 2.8.2011, he was transferred to Police Station Civil Lines, Gujrat and handed over the case file to the Moharrar.
12. Basharat Ahmad (CW-5) conducted partial investigation of the instant case. On 3.8.2011, he was posted at P.S. Sarai Alamgir. On the same day, Arif Hussain appellant led to the recovery of .30 bore Pistol with five live cartridges vide recovery Memo. Exh-PJ. On 7.8.2011 he recorded version of Tufail Hussain Shah and Mukhtar Hussain Shah co-accused. In his investigation, both the accused were found not involved in the commission of offence.
13. Muhammad Asif Akhtar Naqash Draftsman (CW-7) visited the place of occurrence on 20.7.2011 took rough notes of the place of occurrence and on the pointation of complainant and PWs took seeled site-plan Exh. PW6/E and Exh.PW6/F. Rest of the CWs are of formal nature, therefore, need not to be discussed. The prosecution while tendering reports of Punjab Forensic science Agency Exh PK, Chemical Examiner Exh.PL and Serologist Exh.PM and giving up Fayyaz Ahmad PW as unnecessary close its case.
14. After close of the prosecution evidence, the appellant was examined under Section 342, Cr.P.C. He refuted the allegations attributed to him and while responding to a question “Why this case against him and why the PWs deposed against him”, the accused/appellant Arif Hussain Shah deposed as under:
“The PWs are interse related and have come with a false story. Nobody from the village supported the version of the prosecution. As matter of fact that Afzal PW is strong headed person and has close relations with outlaws, who are his frequent visitors such like activities were opposed by other Mohallah Dars including us, so after concocted a false story, they were involved in this case falsely.”
The appellant did not appear as his own witness under Section 340 (2), Cr.P.C. However, the appellant produced Doctor Faisal Malik as DW.1 in his defence who conducted medical examination of Riaz Masood injured.
15. Learned counsel for the appellant contended that the prosecution has failed to prove its case against the appellant beyond reasonable doubt; that no independent witness was cited by the prosecution; that it was unseen occurrence as there was no source of light; that the motive was not proved; that the prosecution has suppressed the material facts; that the story of the prosecution was highly improbable; that the defence evidence was not evaluated by the learned trial Court; that case of the prosecution was full of deliberations, concoctions, consultations and improvements, therefore, the appellant was entitled to benefit of doubt.
16. Conversely, learned Deputy Prosecutor General assisted by the learned counsel for the complainant vehemently opposed the appeal and submitted that the appellant was nominated in the FIR with specific role; that natural ocular account was furnished by Muhammad Fayyaz and Muhammad Afzaal; that the eye-witnesses had no enmity with the appellant to falsely deposed against him during the trial; that in such like cases substitution was rare phenomenon; that the motive is not a component of murder and does not adversely affect the case of prosecution in any manner; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that the conviction and sentence awarded to the appellant by the learned trial Court warrants no interference by the Court.
17. We have heard the learned counsel for the parties at considerable length and have also gone through the record with their able assistance.
18. It has been observed that during trial Muhammad Fayyaz Ahmad complainant (PW.3) and Muhammad Afzaal (PW.4) furnished the ocular account. They were real brothers of the deceased. Whereas, Imran (PW) was the ‘Damad’ of their “Taya”. The place of occurrence was the house of the deceased, who was done to death on 16.7.2011 at 8.30 p.m. The appellant alongwith his co-accused while armed with their respective weapons knocked at the door of the deceased. He opened the door and was fired at by the appellant and his co-accused. The deceased sustained four fire-arm injuries on his person. Whereas, Muhammad Afzaal (PW.4) got injured having two fire-arm injuries on left thigh and right forearm During the occurrence, Mukhtar Hussain Shah accused also sustained fire-arm injury. The occurrence took place in the month of July. The deceased was living with his family in the said house, thus, the source of light/visibility cannot be disputed, in particular, when the defence has not seriously pressed that there was power shut down at the time of occurrence. The parties were residents of the same village, thus, there was no question of mistaken identity. The eye-witnesses were related to the deceased/inter-se but have no enmity with the appellant to falsely depose against him. The presence of eye-witnesses at the crime scene was not seriously challenged by the defence during their cross-examination. The most important eye-witness in this case was PW.4 Muhammad Afzaal, who appeared before the learned trial Court and has categorically stated that it was the appellant who inflicted injury on his hand. As mentioned above, neither the presence of the witnesses nor the injuries of Muhammad Afzaal have been denied during the cross-examination.
19. Apart from the above, the ocular account furnished above by the eye-witnesses, finds support from the medical evidence furnished by PW.1 who conducted postmortem examination on the dead body of the deceased on 17.7.2011 and the Injury No. 1 attributed to the appellant, proved fatal. The time between the injury and death and time between death. and postmortem examination coincides with the time of occurrence given by the prosecution. There was another aspect of the matter as the prosecution witnesses were suggested by the defence as if there was a punchayat in the house of the deceased to resolve a dispute of his brother Muhammad Fayyaz, who sent some one abroad and Muhammad Afzaal (injured PW.4) came in the said Punchayat with fire-arm weapon and also sustained injury in that event. The defence have taken inconsistent pleas, for instance, Mukhtar Hussain Shah got injured statedly in this occurrence. He was medically examined but never opted to appear as his own witness under Section 340(2), Cr.P.C. to substantiate his own version even no prosecution witness was suggested that he was fired at by Muhammad Afzaal or some one from the complainant party but since a specific plea is taken on behalf of the appellant, therefore, burden to prove the said plea as required under Article 121 of Qanun-e-Shahdat Order, 1984 was on the appellant. We have gone through the whole evidence but no effort was made to discharge the said onus, so the said plea is of no avail to the appellant.
20. The motive part of the prosecution case as set out in the FIR was that in the first half of the day, a quarrel between the children of the parties was a motivating factor for this crime, though, the prosecution could not produce cogent/convincing evidence to probe the motive but it loses its significance as not only the appellant rather his co-accused have admitted the said quarrel i.e. motive, in their statements recorded under Section 342, Cr.P.C. Moreover, it was the defence version that the firing of Muhammad Afzaal (PW.2) and his companions hit the deceased. It is a matter of common observation that in such like cases, the parties do not generally come out with the true story because each party tries to minimize its own part in the incident. In such a case, the Court must not be deterred by the incompleteness of the delay from drawing the inference that properly flow from the evidence in the circumstances of the case. Ref: “Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502).
21. As far as the report of the Forensic Science Agency is concerned, that lends no support to the prosecution as duplicate. Copy of the report was tendered which is inadmissible.
22. So far as the quantum of sentence is concerned, we have noticed that it is not a case of capital punishment for the following reasons:
(i) That there was no previous enmity between the parties;
(ii) The eye-witnesses in their examination in chiefs have stated that the appellant caused only single fire-arm injury to the deceased and what exactly transpired between the parties at the time of occurrence remained a shrouded mystery i.e. the incident took place at the spur of moment and was not premeditated murder. Therefore, if all these points are collectively taken into consideration, then, we are of the firm view that it is a case of mitigation. In this context, reliance is placed on “Iftikharul Hassan v. Israr Bashir and another” (PLD 2007 SC 111), wherein their lordships observed as under:
“....... The difference of punishment for Qatl-e-Amd as Qisas and Tazir provided under Sections 302(a) and 302(b), P.P.C., irrespectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under Section 302(b), P.P.C., and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of Qisas if he is minor at the time of occurrence but in a case in which Qisas is not enforceable, the Court in a case of Qatl-e-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338). The Court while maintaining the conviction under Section 302(b) awarded him sentence of life imprisonment under the same provision and also granted him the benefit of Section 382-B, Cr.P.C.”
As far as the appellant is concerned, we have noted that he fired at the deceased which landed on Muhammad Riaz Masood and finds support from the medical evidence, therefore, his conviction under Section 302(b), PPC for murder of Muhammad Riaz is maintained He is also attributed a fire-arm injury on the person of Muhammad Afzaal (PW.4), thus his conviction and sentence recorded by the learned trial Court under Section 324, PPC is also maintained.
23. In view of the above the sentence of death awarded to the appellant is converted into imprisonment for life. The sentences are directed to run concurrently and benefit of Section 382-B, Cr.P.C. is also extended to the appellant. Ref. “Mirza Zaheer Ahmad v. The State” (2003 SCMR 1164), “Muhammad Ibrar v. The State” (2006 SCMR 1175) and “Latif Ullah v. The State (2007 SCMR 994). The instant Criminal Appeal No. 220 of 2013 is dismissed with the above modification. The death sentence is not confirmed and the Murder Reference No. 59 of 2013 is answered in the negative.
24. For the foregoing reasons, the Crl. P.S.L.A No. 27 of 2013 filed by the complainant/appellant against the acquitted co-accused is hereby dismissed.
(A.A.K.) Appeal dismissed
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