1. Sardar Tariq Masood, J.--Appellant Muhammad Ilyas alongwith Altaf Hussain, Allah Rakha, Bashir Ahmad and Muhammad Nawaz co-accused was tried by the learned Addl. Sessions Judge, Mailsi in case FIR No, 92 dated 2.4.2005 registered under Sections 302/109/34 PPC at Police Station City Mailsi District Vehari. The learned trial Judge vide judgment dated 30.9.2005 convicted the appellant under Section 302(b) PPC and sentenced him to death. He was further directed to pay compensation of Rs, 100,000/- u/S. 544-A Cr.P.C. to the legal heirs of the deceased or in default whereof to further undergo six months S.I. Altaf Hussain, Allah Rakha, Bashir Ahmad and Muhammad Nawaz co-accused were acquitted of the charge.
2. The appellant has filed Crl. Appeal No, 620 of 2005 against his conviction and sentence whereas the learned trial Court has sent a reference (M.R. No, 748 of 2005) for confirmation of death sentence of the appellant or otherwise. We propose to dispose of both these matters by this single judgment.
2. Brief facts of the case as disclosed in the FIR Exh.PC by PW.6 Shabbir Ahmad complainant is that his brother Nazeer Ahmad Shahid deceased was serving as Patwari in Halqa Karampur. On 2.4.2005 at about 11:00 a.m. he went to Tehsil Office Mailsi in connection with his attendance. He also went with him at motorcycle. Nazeer Ahmad Shahid after alighting from the motorcycle sat in the shop of Rao Salim petition writer. In the meantime, accused Altaf Hussain, Ilyas and Allah Rakha, all the three armed with .30-bore pistols emerged there. Accused Muhammad Ilyas raised lalkara that they shall not spare the deceased today. Accused Altaf Hussain fired a shot from his pistol on the deceased which hit him in between the left eye and nose and exit near the ear. Altaf fired second shot which hit the deceased at his right shoulder. Thereafter, Muhammad Ilyas fired a shot which hit the deceased in his abdomen. The deceased fell down. Allah Rakha supervised the occurrence and raised lalkara that if anyone came forward, he will be killed. Thereafter all the accused, decamped from the spot while raising lalkara. Nazeer Ahmad succumbed to the injuries at the spot. The occurrence was witnessed by Safdar Hussain PW-7 and Muhammad Iqbal (given up PW). All the above named accused committed murder of the deceased at the instance of Muhammad Nawaz and Bashir Ahmad accused.
3. Motive behind the occurrence was stated to be that in the year 1997 brother of Riaz accused was murdered whereupon a criminal case was registered. Nazeer Ahmad deceased was an accused in that case and Nazeer Ahmad .deceased was acquitted from the charge. Having said grudge, all the accused by sharing their common intention had committed murder of Nazeer Ahmad Shahid.
3. After completion of the investigation, challan was submitted against the accused. Charge was framed, to which, they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as niany as 10 PWs and also tendered the documentary evidence. The trial Court also examined two CWs.
4. PW-1 Dr. Irshad Hussain conducted the autopsy upon the dead body of Nazeer on 2.4.2005 and found four lacerated wounds on his person. In his opinion, cause of death was shock, due to haemorrhage (external and internal) and damaged to vital organs(right lung right kidney and lever). All injuries were ante-mortem caused by fire-arm weapons and were sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was immediate and between death and post mortem 4% to 5% hours approximately.
5. PW-2 Nasir Ahmad H.C. stated that on 14.4.2005 he handed over sealed parcel containing blood- stained earth to Muhammad Latif constable. Another sealed parcel containing empty cartridges was handed over to Arshad constable and on 13.5.2005 one sealed parcel containing .30 bore pistol was handed over to Irshad Khan constable for their onward transmission to the office of FSL and Chemical Examiner.
6. PW-3 Ijaz Latif Draftsman prepaied the scaled site-plan Exh.PB, Ex.h.PB/1, Exh.PB/2 and Exh.PB/3.
7. PW-4 Muhammad Arshad constable stated that Moharrir handed over to him a sealed parcel containing empty cartridges for onward transmission to the office of FSL and he deposited the same to the said office in tact.
8. PW-5 Mehr Ijaz Husain S.I. arrested the accused Ilyas from Risalpur Cantt. and investigated this case partly.
9. PW-6 Shabbir Ahmad complainant and PW-7 Safdar Hussain furnished ocular account of this case.
10. PW-7 is also a witness of recovery of pistol.
11. PW-8 Muhammad Latif constable stated that Moharrir handed over to him a sealed parcel containing blood-stained earth for onward transmission to the office of Chemical Examiner and he deposited the same in the said office in tact.
12. PW-9 Irshad Ahmad is the witness of conspiracy.
13. PW-10 Ijaz Hussain S.I./SHO is the Investigating Officer of this case.
14. Learned SPP gave up Muhammad Iqbal and Allah Yar PWs and tendered in evidence, report of Chemical Examiner Exh.PK, report of Serologist Exh.PL and report of FSL Exh.PM and closed the prosecution evidence.
15. CW-1 Amir Tamoor DSP stated that he verified the investigation conducted by the local police in which Altaf Hussain, Allah Rakha and Bashir Ahniad were found innocent whereas Ilyas was found guilty.
16. CW-2 Jawad Mukhtar DSP stated that during his investigation, Altaf Hussain, Allah Rakha and Bashir Ahmad were found innocent and Muhammad Ilyas and Nawaz were found guilty.
4. The statements of the accused under Section 342 Cr.P.C. were recorded in which they refuted the allegations levelled by the prosecution and professed their innocence. In answer to question why this case against you and why the PWs deposed against you, Muhammad Ilyas appellant stated as under:-- "In fact instant, case has been registered against me as a counterblast to a case in the year 1997, my brother was murdered wherein deceased Nazeer Patwari was nominated as accused. At the conclusion of formal trial Qaiser accused was convicted and also was burdened with fine as such in order to having said grudge of conviction of said Qaiser Abbas, complainant has falsely involved me in the present case for pressurize for compromise. However, I am innocent. All the PWs are interested/closely related witnesses. They have deposed falsely against me just to strengthen the prosecution case."
17. The appellant did not opt to appear under Section 340(2) Cr.P.C. in disproof of the allegations levelled by the prosecution. However, he produced DW-1 Muhammad Ashraf Sajid and DW-2 Qari Muhammad Ramzan in his defence.
18. 5, Learned counsel for appellants contended that the eye-witnesses were not present at the spot and has not witnessed the incident; that there are material contradictions between the statements of the PWs; that the FIR was not recorded with promptitude; that the medical evidence contradict the ocular account; that two injuries on the person of deceased have been attributed to Altaf Hussain co-accused, brother of the appellant, one on the left side of hand and the other on right side of shoulder; that only one injury had been attributed to the appellant which is on the abdomen; that the motive of the prosecution is that the brother of the appellant had been murdered in the year 1992 and a criminal case for the murder of the deceased was registered against Nazir Ahmad deceased of the present case and he was acquitted. Learned counsel relies on the cases of Ali Khan vs. The State (PLD 1980 SC 109) and Muhammad Aslam alias Chhachhi vs. The State (1982 SCM R 1029) in support of his contention in which the Hon'ble Supreme Court had reduced the sentence of the accused from death to imprisonment for life; that it is a case of revenge and the co-accused of the appellant has been acquitted who has been attributed two injuries.
6. On the other hand, learned DDPP for the State opposed the appeal on the ground that it is a day light occurrence and the identity of the accused has been made as the accused were previously known to the complainant party; that the FIR had been recorded with promptitude; that the medical evidence fully supported the ocular account; that the recovery has been effected from the appellant on 5.5.2004 and the empties have been sent to the office of FSL on 3.5.2004; that all three empties matched with the pistol which were recovered from the appellant. In these circumstances the prosecution has succeeded in proving its case against the appellant and his conviction and sentence may be maintained.
7. We have heard the arguments of learned counsel for the parties at length and perused the record carefully with their able assistance.
8. In this case, the occurrence took place at 11.00 a.m. The place of occurrence is at a distance of about 60 yards from the Police Station Mailsi. The complainant Shabbir Ahmad directly lodged the FIR in the police station at 11.20 a.m. It is not the case of the prosecution that Fard Bian/complaint was written outside the police station rather the FIR was directly chalked out in the police station on the statement of complainant, so the matter was most promptly lodged. The matter was reported to the police within 20 minutes of the occurrence. The recording of FIR promptly, eliminate the chance of fabrication and consultation. This fact further confirm the presence of complainant and the PWs at the time of occurrence. Muhammad Ilyas appellant was specifically nominated for causing fire shot in the abdomen of Nazir Ahmad Shahid deceased. This injury caused damage to right kidney and liver and according to the doctor, the cause of death was shock resulted by haemorrhage and damage on vital organs, right lungs, right kidney and liver. The medical evidence fully supported the prosecution case qua the role of the appellant Ilyas. The injury attributed to the appellant is fatal in nature.
19. According to the prosecution, the deceased after receiving the fire shots by the appellant and his co-accused succumbed to' the injuries then and there at the spot. In this case, post-mortem was conducted on the same day at 4.00 p.m. According to, the doctor, duration between injury and death was immediate whereas between death and postmortem 4% to 5% hours approximately.
20. The opinion of the doctor confirmed the assertion of the ocular account that the deceased after receiving the injuries died then and there at the spot as according to the doctor, the time which elapsed between injury and death was immediate. Duration given by the doctor of death and post-mortem also confirmed time of occurrence given by the eye-witnesses/ocular account, so in this case, medical evidence fully supported the ocular account qua the role of the appellant.
21. From the spot, three empties of .30 bore pistol were recovered by the police on the day of occurrence i,e, 2.4.2005. The same were made into sealed parcels and were taken into possession vide recovery memo Ex.PG. The said empties were deposited in the office of FSL on 3.5.2005. During investigation, Ilyas appellant got recovered .30 bore pistol P.1 on 5.5.2005 which was made into sealed parcel and the same was deposited in the office of FSL on 14.05.2005. This fact indicates that the parcels of empties were deposited in the office of FSL much prior to the recovery of pistol.
22. According to the report of FSL Ex.PM, all the three empties recovered from the spot were found to have been fired from .30 bore pistol recovered at the instance of the appellant. The recovery of empties from the spot, subsequent recovery of the pistol from the appellant and the report of FSL Ex.PM is a strong corroboration to the ocular account.
23. It is a broad day light occurrence and there is no chance of mistaken identity of the appellant. In this case, motive as asserted by the prosecution is that in the year, 1997, the brother of the appellant was murdered and in the said case, Nazir Ahmad Shahid deceased alongwith others were nominated. After due trial, Nazir Ahmad was acquitted. Due to the grievance, the appellant alongwith his co-accused committed this murder. This assertion of the prosecution is admitted by the appellant Ilyas while making statement u/S. 342 Cr.P.C. According to him, the brother of Ilyas was murdered in which Nazir Ahmad deceased was nominated as an accused and after the conclusion of the trial, one of the accused namely Qaiser was convicted and due to the said grudge, the appellant was involved in this case. Meaning thereby motive is admitted by the appellant side. However, according to the defence, they have been involved in this case in order to pressurize them for the compromise in the said case. This fact indicates that since 1997. blood feud is existing between the parties. The parties are locked in the enmity of murder then ocular account cannot be accepted without independent corroboration. This was the reason that the learned trial Court had acquitted Altaf and Allah Rakha co-accused. Although, they were also present at the spot because there was no independent corroboration qua the role of the said accused persons and due to the abundant caution, the benefit of doubt was extended to those two accused.
24. The contention of the learned counsel for the appellant that the case of Ilyas appellant is at par with that of those two co-accused is not plausible. As to the extent of role of Ilyas appellant, there is independent corroboration. The role of Ilyas given through ocular account is supported by the medical evidence, which is further corroborated by the recovery of empties from the spot, recovery of pistol from Ilyas appellant and the report of FSL as discussed above. So it cannot be presumed that his case is at par with that of his co-accused Altaf and Allah Rakha. All the three empties recovered from the spot were found to have been fired from the pistol of the appellant which indicates that the fire-arm injuries on the person of the deceased were caused by the appellant.
25. The contention of the learned counsel for the appellant that as the appellant had taken the revenge of the murder of his brother, hence, it is a mitigating circumstance in this case. In this respect, learned counsel for the appellant relies upon the cases of Ali Khan vs. The State (PLD 1980 SC 109) and Muhammad Aslam alias Chhachhi vs. The State (1982 SCM R 1029) and according to the learned counsel, the private revenge is a good ground for mitigation.
26. In the judgment of Ali Khan's case (supra), it is clearly mentioned that this Court, has an the contrary, never considered taking a private revenge a mitigating circumstance in the matter of sentence."
27. In the other judgment relied upon by the learned counsel for the appellant i,e, Muhammad Aslam alias Chhachhi's case (supra), the facts of the said case is totally different from the facts of the present case. In that case, at the time of murder of brother of the accused, the accused was just 8 years old and when he reached at the age of 25 years, then he committed the said murder.
28. On the other hand, in the case of year, 1997, one of accused Qaiser was convicted and sentenced, meaning thereby the grievance of the appellant had already been redressed. After that when the grievance had already been redressed, the appellant had taken law in his, hand and committed the murder of Nazeer Ahmad who had been acquitted by the Court after fulfledged trial, so there is no question of reduction of sentence of the appellant from death to imprisonment for life on the ground of private revenge. The Court has to determine from delicate balance between the aggrieved party and the accused party and has to see other attending circumstances. It is not a case of sudden provocation as in the background of earlier case, the deceased was done to death by the appellant. If we extended the benefit of mitigation to the person who had taken the law in his hand, although, their grievance had already been redressed by the Court of law, then it will amount to encourage people to take law in their own hands while by-passing the Court of justice.
29. Therefore, we are not inclined to reduce the sentence of the appellant on the ground of private revenge.
9. After deep re-appraisal of the evidence, we are convinced that the prosecution has successfully established its case, therefore, we do not find any reason to interfere in the conviction and sentence recorded by the learned trial Court against the appellant and also do not find any mitigating circumstance to reduce the normal penalty of death, therefore, the conviction and sentence of the appellant is maintained. Consequently, the appeal of the appellant is dismissed.
30. His death sentence is confirmed. The sentence of compensation is also maintained.
31. 10.Murder Reference is answered in affirmative.