Abdul Hameed Dogar, J.--By this common judgment, we propose to dispose of Crl. Appeals No, 280 and 281 of 2002 as both are directed against a consolidated judgment dated 16.7.2001 passed by a learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Crl.
Appeal No, 121 of 1996 filed by appellant Mushtaq Ahmad challenging his sentence of death was dismissed and Murder Reference No, 54 of 1996 was answered in affirmative. Criminal Revision No, 65 of 1996 filed by complainant Liaqat Ali against respondent Mazhar Iqbal regarding enhancement of amount of compensation and that of sentence was also dismissed.
2. Precisely stated, the relevant facts are that deceased Major Abdul Qayyum, brother of Liaqat Ali, the complainant had purchased land in Chak Jalal Din, District Rawalpindi. Two days prior, there had occurred an altercation in between appellant Musthaq Ahmad and deceased Major Abdul Qayyum over levelling of the land by a Bulldozer. On the day of incident i,e, on 31.8.1986 at 11.00 a.m. while complainant and the deceased were present in the aforesaid land, appellant alongwith acquitted accused Mazhar Iqbal armed with 12 bore gun, Munshi Fazal, Mian Khan and Muhammad Ashraf armed with pistols emerged from the side of brick kiln of the appellant According to the case of prosecution, the appellant raised lalkara and fired a shot with 12 bore gun at deceased Abdul Qayyum which hit on his forehead who fell down. Mazhar Iqbal fired shot from his 12 bore gun which hit on the chest and shoulder of the deceased. Appellant Mushtaq Ahmad repeated a shot at deceased which hit on the right side of his chest. Munshi Fazal, Mian Khan and Muhammad Ashraf also fired in the air. The occurrence was witnessed by the complainant, Muhammad Mohsin, Aurangzeb and Rab Nawaz PWs.
3. Motive behind the fateful incident was the abovementioned alleged quarrel which took place in between the deceased and appellant Mushtaq Ahmad over ploughing of the land of the appellant.
4. Since Dr. Muhammad Hanif who conducted autopsy on the dead body of the deceased was not examined, as such, the post mortem notes were brought on record by Dispenser (PW-7) of the Hospital being well-acquainted with his hand writing and signatures.
5. Muhammad Zar, SHO (PW-10) after registration of the case proceeded to the place of occurrence and secured blood stained earth and two empty cartridges from the place of occurrence. On 1.9.1986, he arrested Mian Khan (acquitted Accused) and took into possession his licensed revolver. On 8.9.1986, he arrested Fazzil and Mazhar Iqbal (acquitted accused) and recovered a revolver from Fazzil on his pointation which was containing two missed cartridges and four empties. On 18.10.1986 Muhammad Ashraf produced his licensed 12 bore gun.
6. Appellant Mushtaq Ahmad was arrested on 4.10.1986 and was sent up to face trial alongwith the abovementioned acquitted accused and during the trial he was released on bail on medical grounds. He jumped bail and absconded and was thus declared proclaimed offender. It was in 1993, he was again arrested and was tried separately as his case was bifurcated due to his absconsion.
7. To establish the case, the prosecution examined 13 PWs in all.
8. Appellant in his statement recorded under Section 342 Cr.P.C. denied the case of prosecution and pleaded innocence. He, however, did not examine himself on oath as required under Section 340(2) Cr.P.C. but examined Muhammad Afzal and Liaqat Ali in his defence.
9. On completion of trial, Mushtaq Ahmad appellant was convicted under Section 302 PPC and sentenced to death. He was also directed to pay compensation of Rs, 1,00,000/- to the legal heirs of the deceased under Section 544-A Cr.P.C. and in the event of non-payment, the same shall be recovered as arrears of land revenue.
10. As regards the case of Mazhar Iqbal, he was tried alongwith accused Mian Khan, Muhammad Ashraf and Munshi Fazzil and vide judgment dated 5.11.1990 passed by the learned trial Court was convicted under Section 302(b) PPC and sentenced to imprisonment for life with a fine of Rs, 20,000/- or in default of the payment of fine to further undergo R.I. for two years. He was also directed to pay a sum of Rs, 30,000/- as compensation to the legal heirs of the deceased as required under Section 544-A Cr.P.C. and on its failure, the same was ordered to be recovered as arrears of land revenue and in default whereof to suffer R.I. for six months more. Accused Mian Khan, Muhammad Ashraf and Munshi Fazzil were, however, extended benefit of doubt and were acquitted.
11.Respondent Mazhar Iqbal assailed his conviction and sentence in Criminal Appeal No, 136 of 1990 whereas complainant asked for enhancement of his sentence through Criminal Revision No, 1193 of 1999 which were disposed of by the learned High Court vide judgment dated 16.7.2001 whereby appeal of respondent Mazhar Iqbal was accepted and his conviction and sentence was set aside whereas criminal revision was dismissed.
12.Leave to appeal was granted by this Court to reappraise the evidence and to determine the quantum of sentence in respect of appellant Mushtaq Ahmad, whereas in the connected Petition No, 243 of 2001, the leave was granted subject to the determination of question of limitation at the time of final hearing.
13.We have heard Malik Abdus Sattar Chughtai, learned ASC for the appellant Mushtaq Ahmad, Malik Rab Nawaz Noon, learned Sr. ASC for appellant Liaqat Ali and Ms. Afshan Ghazanfer, AAG for the State and have gone through the record and the proceedings of the case in minute particulars.
14.Malik Abdus Sattar Chughtai, learned ASC for appellant Mushtaq Ahmad has contended that the eye-witnesses are not only related inter se but are chance witnesses, as such, the eye-witness account furnished by them is not worthy of credence so as to warrant conviction. According to him, there is glaring inconsistency in between the ocular evidence and the medical evidence which being an important aspect of the matter has not been considered by the Courts below, as such, requires reappraisal. Neither bulldozer was taken into possession nor the statement of its driver was recorded, thus the motive set up by the prosecution has not been proved. On the quantum of sentence, he urged that the deceased was a man of questionable character and was involved in many criminal cases, thus his being done to death by someone else cannot be ruled out and its benefit be extended in favour of the appellant which alone is sufficient circumstance to reduce his sentence.
15.On the other side, M/s Malik Rab Nawaz Noon, learned Sr. ASC and Ms. Afshan Ghazanfer, AAG appearing on behalf of complainant and State respectively vehemently controverted the above contentions and argued that the learned High Court has correctly appraised the evidence in accordance with the well-settled principle of law. The question of mistaken of identity does not arise in this case as the incident took place during broad day time and was promptly lodged. Since no animosity was alleged to the abovementioned eye-witnesses, hence their evidence cannot be discarded and disbelieved on mere presumption and assumption. According to them both the Courts below in the light of theevidence brought on record have rightly believed their testimony to be truthful and confidence inspiring. Irrespective of above, the motive against appellant Mushtaq Ahmad who actually participated in the commission of offence has also been proved. They vehemently urged that the role ascribed to the appellant has been fully corroborated by the medical evidence and the recoveries leaving no room for consideration, thus concurrent, findings recorded against the appellant are not liable to be interfered with. According to them, the appellant has failed to bring on record any mitigating circumstance to reduce his sentence, as such, a normal penalty of death has been rightly awarded to him.
16. We have given our anxious thought to the contentions raised at bar and are of the considered opinion that the prosecution has fully proved its case by bringing on record the ocular testimony furnished by, PW-1, 2 and 3 fully corroborated by the medical evidence. Irrespective of this, his remaining fugitive from law till, 1993 is also strong corroborative piece of circumstantial evidence to connect him with the commission of crime. As regards the quantum of sentence, it would be appropriate to have a glance over the evidence of complainant Liaqat Ali who in an unequivocal words admitted before the trial Court that the deceased was challaned in 5/6 criminal, cases which were still pending. Though denied to the suggestion that his brother was involved in assault, narcotics and unlicensed arms cases yet he voluntarily admitted that he had fought with the guard of Makhdoom Syed Faisal Saleh Hayat while trespassing into his bungalow and such case was registered against him. From the above resume, it transpires that the deceased was man of questionable character which in Our opinion is a sufficient extenuating circumstance to reduce the sentence of the appellant from death to imprisonment for life. Accordingly while maintaining the conviction, we reduce the sentence of appellant from death to imprisonment for life. However, the order of compensation is upheld.
17.Resultantly, Crl. Appeal No, 280 of 2002 filed by the appellant is dismissed with the above modification in the sentence. Benefit of Section 382 Cr.P.C. is also extended to him towards computation of sentence.
18.Criminal Appeal No, 281 of 2002 filed by complainant Liaqat Ali being barred by 62 days is dismissed as time barred. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.