Muhammad Anwar Bhaur, J.--Muhammad Arif son of Muhammad Akram, the appellant was tried by learned Additional Sessions Judge, Faisalabad in case F.I.R. No, 637, dated 24.10.2003, registered with Police Station Thikriwala, District Faisalabad for offences under Sections 302/324 P.P.C. The learned trial Judge by virtue of his judgment dated 30.10.2004 found him guilty of the said charges, convicted and sentenced him as under:-- I) UNDER SECTION 302(b) P.P.C.
To death with further direction to pay a sum of Rs, 1,00,000/- to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months.
II) UNDER SECTION 324 P.P.C.
To undergo rigorous imprisonment for ten years with a fine of Rs, 50,000/- or in default thereof to undergo simple imprisonment for six months, Benefit of Section 382-B Cr.P.C. was extended to the appellant.
2. The convict/appellant by filing Criminal Appeal No, 346/J of 2004 has called in question the, convictions and sentences awarded to him through the impugned judgment, whereas the learned Additional Sessions Judge has sent Murder Reference No, 902 of 2004 seeking confirmation or otherwise of death sentence awarded to the appellant. We propose to dispose of both these matters together through this single judgment.
3. The prosecution story as unfolded in the F.I.R. (Exh.PA) registered on the statement (Exh.PA/1) of Habib-ur-Rehman son of Muhammad Sardar, the complainant (P.W.8) was that he was resident of Chak No, 67/JB; on 24.10.2003, at 12.15 p.m. he along with his brother Shaukat Ali, Zulfiqar son of Muhammad Yaseen, Muhammad Rashid son of Khan Muhammad, Saeed son of Idrees and Kashif son of Munir was sitting outside Anmol PCO in main Bazaar Sadhaar Malanpur Road; a person, whose name later on disclosed as Muhammad Arif son of Muhammad Akram (the appellant) arrived there and used telephone; at that time, Allah Ditta son of Muhammad Siddique and Malik Safdar son of Ali, resident of the village, were also present in the PCO; the appellant used the telephone and on payment of price of the consumed units, a dispute arose between the appellant on one side and Allah Ditta and others on the other side; in the meanwhile, Sabir Khan son of Abdul Karim, who was also employee of the said PCO, reached there and asked the appellant to make payment, whereupon the appellant pulled a pistol .30-bore out of his Dub and fired a shot at Sabir Khan hitting him on his left thigh, who on receipt of injury fell down the appellant ran away towards the main road, when Shaukat Zulfiqar, Muhammad Saeed, Muhammad Rashid Khan an Kashif Ali chased him, but boarded a bus halted on the bus stop for Faisalabad; Shaukat Ali, brother of the complainant, tried to catch hold of him, but he made a straight shot, which struck Shaukat Ali on his abdomen; thereafter he fired another shot, which him the left arm of Shaukat in the meanwhile; the complainant along with his companions succeeded in catching hold of the appellant along with pistol; Shaukat Ali and Sabir Khan were taken to Allied Hospital, Faisalabad for medical treatment, where Shaukat Ali breathed his last, whereas Sabir Ali was admitted in the hospital.
On receipt of information regarding the incident, the police reached the hospital, where the complainant reported the matter to Sultan Sikandar, SI (P.W. 11) by rnaking a statement (Exh.PA/1) on the same day at 2.00 p.m. and the latter despatched the same to the police station for registration of formal F.I.R., resulting into drawing up F.I.R. (Exh.PA) by Muhammad Arshad, MHC (P.W.
11) on the same day at 3.00 p.m. without any addition or alteration on his part. The appellant along with pistol was also handed over to the said Sub-Inspector at that time.
4. After registration of the case, investigation into the crime commenced. Sultan Sikandar, SI (P.W.
11) carried out investigation and after completing all legal formalities completed the challan and submitted the same before the trial Court for trial of the appellant in accordance with law.
5. On receipt of the challan, the trial Court framed a charge and put the same to the appellant, to which he pleaded not guilty and claimed to be tried. The prosecution in order to prove its case produced as many as eleven prosecution 'witnesses, namely, Muhammad Arshad, MHC (P.W. 11), Muhammad Saleem, (P.W.2), Dr.Mukhtar Ahmad (P.W.3), Munir Ahmad, constable (P.W.4), Muhammad Arshad (P.W.5), Akbar Ali Nizami, Draftsman (P.W.6), Dr.Altaf Pervaiz (P.W.7), Habibur- Rehman-complainant (P.W.8), Sabir Khan, injured (P.W.9), Muhammad Rashid (P.W.10) and Sultan Sikandar, SI (P.W. 11). The learned Prosecutor closed the prosecution case by tendering in evidence reports of the Chemical Examiner and Serologist (Exhs.PM & PN). Thereafter, all the incriminating material was put to the accused while recording his statement under Section 342 Cr.P.C., who claimed his innocence in the matter and answered the question "Why this case against you and why the PWs have deposed against you?" in the following manner: The story as stated by the prosecution is false one. PWs are interest related to each other. Actually facts has been suppressed by the complainant and PWs of this case. I am not resident of the vicinity nor there is any enmity between me and the deceased and injured persons. On the fateful day I went to Anmol PCO to make phone call after my call a dispute over the payment have arisen between me and Sabir Khan where he abused me and used filthy language. Any how I paid him according to my thinking and left the place and entered in a bus to proceed Faisalabad but the Sabir with a pistol chased me and raised hue and cry then Shaukat Ali deceased was also with him.
Shaukat Ali deceased took the pistol from Sabir and entered in the bus and tried to fire upon me. I caught hold the hand of pistol of Shaukat scuffle started and during scuffle pistol went on which hit Shaukat Ali deceased on his abdomen. He did not free the pistol and it was in his hand which again went on and hit on left arm and after passing the same it hit Sabir injured PW. None of the witnesses except these two persons were present there. I was miserably beaten by the persons gathered there and then I was handed over to the police from the place of occurrence. What-ever was done it was only incident, there was no intention of me to commit murder or injured the persons."
He neither opted to make statement on oath under Section 340(2) Cr.P.C. nor had he produced evidence in defence.
6. The trial ultimately culminated into conviction and sentence of the appellant as aforementioned.
7. Learned counsel for the appellant in support of this appeal argued that in this case there are two versions, one put by the prosecution and the other by the appellant; that even as per prosecution's own case there was no enmity between the parties and the circumstances suggest that it was a sudden fight without any premeditation and maximum punishment is not warranted in these circumstances.
8. Conversely, learned counsel for the complainant submitted that the prosecution has proved its case through the natural and confidence inspiring ocular account, which is duly supported by the medical evidence; that the appellant had fired twice at the deceased, and injured Sabir Khan (PW) and that he was arrested at the spot, therefore, there is no mitigating circumstance for lesser punishment.
9. However, the learned Additional Prosecutor General Punjab has submitted that the circumstances around the matter suggest that it was a sudden fight and the real story has not been brought forward by the prosecution and the circumstances do not warrant maximum punishment.
10.We have heard the learned counsel for the parties at considerable length and gone through the record with their able assistance.
11.The occurrence in the instant case had taken place on 24.10.2003 at 12.15 p.m. within the revenue estate of Chak No, 67/JB, situate at a distance of seven kilometres from the Police Station (Thikriwala). It was reported to Sultan Sikandar, SI (P.W. 11) by the complainant through his statement (Exh.PA/1) on the same day at 2.00 p.m. and on the basis whereof F.I.R. (Exh.PA) was registered at 3.00 p.m.
12.In this case, there are two versions, one put forth by the prosecution and the other by the appellant. Ocular account of the occurrence has been furnished by Habib-ur-Rehman complainant (P.W.8), Sabir Khan, injured (P.W.9) and Muhammad Rashid (P.W.9). Prosecution version according to the complainant (P.W.8) was that an altercation took place between the appellant and Allah Ditta on the dispute of charges of telephonic call made by the appellant from the PCO, when Sabir Khan, who was also employee at the PCO, reached there and asked the appellant that as he had used the telephone, so he should pay for the same, whereupon the appellant took out a pistol from his Dub and fired at Sabir Khan hitting him on his left thigh.
Thereafter, the appellant started running towards the main road and boarded a bus, which was supported to go to Faisalabad. The complainant along with Zulfiqar Ali, Muhammad Rashid, Muhammad Saeed, Kashif and Shaukat Ali chased the appellant. Shaukat Ali in order to apprehend the appellant went inside the bus, when the appellant fired at Shaukat Ali and the shot hit his abdomen. Another shot made by the appellant struck Shaukat Ali at his left arm, who fell down.
According to the complainant, he along with other PWs succeeded in catching hold of the appellant along with .30-bore pistol in the bus. Both the injured persons were taken to the hospital for medical treatment, but Shaukat Ali succumbed to the injuries there and Sabir Khan was admitted in the hospital. Similar was narration of Sabir Khan and Muhammad Rashid (P.Ws.9 & 10).
13.Insofar as medical evidence is concerned, it has been furnished by Dr.Mukhtar Ahmad and Dr.Altaf Pervaiz (P.Ws.3 & 7), respectively. Dr.Mukhtar Ahmad (P.W.3) had medically examined Sabir Khan, injured P.W and observed following injuries on his person:-- 1-ALacerated wound (fire-arm) 1 (1/2) x 1 (1/2) cm front of left thigh middle part entry wound.
1-BLacerated wound (fire-arm) 1 (1/2) cm x 1 (1/2) cm back of left thigh middle part. (Exit wound).
According to him, injury falls under Jur Ghair Jaifa Mutlma. He also medically examined Shaukat Ali on the same day and found following injuries on his person:--
1. Lacerated wound (fire-arm) 1 (1/2) cm x 1 (1/2) cm with inverted margins front of chest just left to the mid line 4 cm above opigestrium. DNP (Entry wound).
2. Lacerated wound'of fire-arm 1 (1/2) cm x 1 (1/2) cm on inner side left forearm proximal par. DNP.
3. Lacerated wound 1 x 1 cm back of left forearm middle part DNP.
All the injuries were kept under observations for Surgeon and Radiologist opinion. Probable duration of injuries were fresh. Kind of weapon was fire-arm.
Dr.Altaf Pervaiz Qasim (P.W.7) had conducted autopsy on the dead body of Shaukat Ali deceased and had observed as under:- Injury No, 1.
A fire-arm wound of inlet 1 cm x 1 cm with inverted and blackened margins along with color of abrasion on front of abdomen upper part on the mid line and 1 cm towards left side and 16 cm above the umbilicus and 15 cm downwards and medially from the left nipple. Corresponding holes present on the clothes. The metallic projectile entered the abdomen on front pierced the skin, muscles, perforated the peritoneum, ruptured the liver, gall bladder hepatic, vessels directed back words perforated gun at different places, ruptured the abdominal aorta and found impacted in the soft tissues near the 10th thoracic vertibrea. No bonee liaison was seen while abdominal cavity was full of blood.
Injury No, 2-A.
A fire-arm wound of inlet 1(1/2)X cm x 1 cm oval in shape with inverted and blackened margins on front of left forearms at 6 cm below the elbow joint.
Injury No, 2-B.
A fire-arm wound of exit 2 cm x cm with averted margins on the back of left forearms 15 cm below the elbow joint. The underlying left forearm bone is fractured.
He opined that the death had occurred due to Injury No, 1, which led to haemorrhage and shock and was sufficient to cause death in the ordinary course of nature.
If we make analysis of the statements of eye-witnesses (P.Ws.8, 9 & 10), whose testimony is very important, then according to them the appellant had caused two injuries to the deceased, one of which was on the vital part of the body i,e, abdomen, and the same was declared by the doctor to be sufficient to cause death in the ordinary course. The appellant also inflicted a fire-arm injury on the left thigh of Sabir Khan, injured PW, which is also apparent from the medical evidence. It appears that the ocular account is duly corroborated by the medical evidence.
14.On the other hand, the appellant admitted the occurrence, but in a different manner. His standpoint, while making statement under Section 342 Cr.P.C. was that he was not resident of the place where the eventful incident had happened and there was no enmity between him and the deceased. According to him, he had made a telephonic call from Anmol PCO and a dispute arose between him and Sabir Khan on the charges of the call, whereupon Sabir Khan had used abusive language. He left the place after paying the amount and entered in the bus to proceed to Faisalabad, when Sabir Khan carrying a pistol along with Shaukat Ali chased him. Shaukat Ali deceased took the pistol from Sabir Khan and tried to open fire at him, but he caught hold of pistol and during scuffle the pistol went off resulting into an injury on the abdomen of Shaukat Ali.
Thereafter, he did not free the pistol, which was in his hand and it again went off and the fire shot struck left arm of the deceased and after passing the same it hit Sabir Khan, injured PW. The version of the appellant that during the scuffle, the pistol (which was in the hand of the deceased) went off hitting the deceased at his abdomen and the other fire after passing through the deceased hit the injured PW is neither convincing nor probable.
15.As far as presence of the appellant at the spot and the act of firing whereby one person lost his life and the other was injured is concerned, the prosecution to this extent has proved its case. It is also important to note that the appellant was arrested immediately after the occurrence.
Therefore conviction of the appellant under Sections 302(b) & 324 P.P.C. is maintained.
16. Now the question is what would be the proper punishment of the appellant under the circumstances of the case. We have noted that there was no enmity between the parties. Even as per prosecution's own version, the name of the appellant was not known to the witnesses prior to the occurrence and the incident suddenly started over the charges of telephonic call, which was made by the appellant from the PCO owned by the complainant side. The prosecution version that the appellant after firing at Sabir Khan ran away and thereafter he was chased and he boarded a bus where he fired at the deceased does not appear to be probable. The prosecution in fact has divided one incident into two. The circumstances suggest that there Was one incident, wherein Sabir Khan was injured and Shaukat Ali died because of the fire-arm injuries.
Another important circumstance in this case was that even in the F.I.R., it was mentioned that the appellant was apprehended at the spot and was handed over to the police. This fact is also admitted by Sultan Sikandar, SI (P.W. 11), Investigating Officer of the case, in his statement before the Court.
Another important circumstance, which has been noted in this case is that before the trial Court the appellant did not appoint his counsel and the Court appointed a counsel at State expense and same was the position before High Court.
Therefore, considering all these circumstances while maintaining conviction of the appellant under Section 302(b) P.P.C. we alter his sentence of death into imprisonment for life. However, the order with regard to payment of compensation and sentence in lieu of non-payment of thereof is maintained.
17.Insofar as conviction and sentence of the appellant under Section 324 P.P.C. is concerned, the same is also maintained. Benefit of Section 382-B Cr.P.C. shall be extended to the appellant. Both the sentences awarded to him 'shall run concurrently.
18.Resultantly, with the above modification in the sentence under Section 302(b) P.P.C., this appeal stands dismissed.
19.Death sentence is NOT confirmed and Murder Reference is answered in the negative.