SH. NAJAM-UL-HASAN, J.---Appellant Rasheed alias Sheeda son of Ranjha was tried by learned Sessions Judge, Faisalabad in case F.I.R. No.673 of 2003 dated 16-9-2003 for the offence under sections 302/324, P.P.C. Registered at Police Station Tandlianwala, District Faisalabad. The learned trial Court vide judgment dated 4-7-2005 convicted the appellant with regard to the murder of Parveen Bibi deceased under section 302(b), P.P.C. And sentenced him to death. He was also directed to pay Rs.100,000 (rupees one lac) as compensation under section 544-A, Cr.P.C. To legal heirs of deceased or in default thereof to undergo six months SI. The trial Court also convicted the appellant under section 324, P.P.C. For committing murderous assault upon Mst. Aleesha Parveen and sentenced him to undergo ten years RI with a fine of Rs. 20,000 or in default thereof to further undergo SI (or three months. The appellant was convicted under section 337-L(2), P.P.C. And sentenced to undergo two years RI as Tazir. Trial Court also convicted the appellant under section 337-F(ii), P.P.C. And sentenced to undergo three years R.I. All the sentences were ordered to run concurrently.
2. Feeling aggrieved by the impugned judgment the appellant has filed appeal through Jail i.e. Criminal Appeal No. 28-J of 2007 whereas the trial Court has sent a reference (M.R.No.657/2005) seeking confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together through this single judgment.
3. Briefly stated the facts of the prosecution case as narrated in the F.I.R. (Exh.PH/1) are that on 16-9- 2003 Muhammad Akram complainant along with his wife Mst. Parveen Bibi and children Faisal ikram and Mst. Aleesha Parveen had come to Chak No.427/G.B to attend the marriage of his Chachazad. At about 1-30 p.m., when the Baraat was about to depart, Rasheed alias Sheeda appellant came with gun .12 bore and started firing. First fire shot made by the appellant hit on left shoulder of Mst. Parveen Bibi. Then appellant made second fire shot, five pellets of which nit on the chest of Mst. Parveen Bibi towards left side. Two pallets of the third fire shot hit on left hand of Mst.
Parveen. Six pallets of fourth shot hit on different places of left hand of Mst. Parveen Bibi. Mst.
Aleesha Parveen suckling baby, was in the lap of his wife, also received two pellets on her left knee.
On hue and cry of Mst. Parveen Bibi, Ashraf and Fayyaz Hussain P.Ws. Attracted to the spot and witnessed the occurrence. The complainant took care of Mst. Parveen Bibi, who succumbed to the injuries at the spot. The complainant, Ashraf and Fayyaz Hussain along with other people of Barrat pursued Rasheed appellant and he sustained many injuries and became unconscious.
4. The motive behind the occurrence statedly was that Rasheed alias Sheeda appellant had abducted sister of Muhammad Akram, the complainant. The parents of Rasheed alias Sheeda accused had given the hand of Mst. Parveen (sister of accused) to the complainant in exchange.
Due to above said grudge, the accused had committed the qatl-e-amd of Mst. Parveen by causing the fire-arm injuries on her person with gun .12 bore.
5. Upon the completion of investigation the challan was submitted before the trial Court where the prosecution produced as many as nine witnesses to prove the charge against the appellant, out of them, Muhammad Akram complainant (P.W.5) and Ashraf Ali (P.W.6) appeared as eye-witnesses of the occurrence whereas Lady Doctor Rihana Tamkeen (P.W.4) produced the medical evidence.
6. The trial Court also examined appellant under section 342, Cr.P.C., who while answering to question "Why this case against you and why the P.Ws. Have deposed against you?", made the following reply:-- "It was a marriage ceremony and the people started general firing and the deceased received injuries at the hands of unknown person. Because of the general firing, the death of the deceased was accidental. The Complainant having previous grudge against me has wrongly implicated in this case. The P.Ws. Are closely related with the deceased, therefore, deposed falsely. My version also finds support from the postmortem examination of the deceased conducted by the Medical Officer".
7. Neither the appellant made statement under section 340 (2), Cr.P.C. Nor produced any evidence in his defence. The learned trial Court after, appraisal of evidence available on the record vide judgment dated 4-7-2005 convicted and sentenced the appellant as narrated earlier, hence this appeal.
8. Learned counsel for the appellant contends that the occurrence in this case has taken place during the marriage ceremony: there must have been many persons at that time but no independent witness has been produced; so far as the motive is concerned, it was stated that the appellant abducted the sister of the complainant and in reconciliation the step sister of the appellant was married to the complainant and for that grudge the appellant has committed the murder of his own sister and injured her child; the prosecution produced two eye-witnesses namely Muhammad Akram complainant who was husband of the deceased and one Ashraf Ali (P.W.6) who was maternal cousin of the complainant, similarly one Fayyaz who was cousin of the complainant was given up being unnecessary. It is contended that during their cross examination the witnesses have admitted that more than hundred persons were present there and only interested and closely related witnesses were produced; it is the prosecution ease that after the occurrence the appellant was apprehended at the place of occurrence and he was found seriously injured; the Investigating Officer has stated that as he reached the place of occurrence he sent the injured child and the accused to the doctor for medical examination. Learned Counsel contends that later on i.e. On 5-10-2003 a single barrel gun was statedly recovered on the pointation of the appellant. It is contended that when the appellant was apprehended from the place of occurrence there was no occasion for him to hide the gun at some other place and later on getting the same recovered after many days; as no crime empty was recovered from the place of occurrence, so even otherwise this gun does not support the prosecution case. It is contended that the motive as alleged by the prosecution is rather a circumstance to falsely implicate the appellant when the sister of the appellant, was married to the complainant, there was no reason for the appellant to kill his own sister, so it can be said that the motive part of the prosecution case is not worth relying; the medical evidence is in contradiction with the prosecution case; it is the prosecution case that four shots were made by the appellant at the deceased and the doctor while appearing in court has categorically stated that all these injuries are the result of one fire; so in these circumstance it appears that the witnesses were not there and the name of the petitioner has only been mentioned due to suspicion. Learned counsel further contends that the ocular account is not worth relying, at one stage; the complainant has stated that when he came at the spot the accused was running away; P.W.6 has also stated that many other persons were present at the time of occurrence; it is the case of the prosecution that appellant was seriously injured in the same occurrence but there is no medico legal report of the appellant in this regard which indicates that the prosecution is concealing the true facts and is not coming with clean hands; after the Occurrence the appellant was sent to the doctor, he remained in the hospital and later on he was arrested; the appellant was apprehended at the spot so the recovery of .12 bore gun allgedly made at the pointation of the appellant at much belated stage is circumstance which indicates that the prosecution is trying to fabricate the ease against the appellant; the defence of the appellant is more plausible that as it was a marriage ceremony and in the area where the occurrence has taken place the people do make firing and in that process it appears that some mistaken fire had hit the deceased and the appellant has been falsely involved in this case. Learned counsel lastly submits that the appellant is entitled to clean acquittal.
9. On the other hand, learned DPG states that this is a case in which the presence of the complainant, deceased and the appellant is admitted; the appellant was statedly apprehended at the place of occurrence and he was given beating and was injured and as such he was sent to the doctor by the Investigating Officer; the appellant did not produce any medico legal certificate and has not explained the reasons how he was injured in this occurrence and this is a circumstance which clearly goes against the appellant and indicates that the evidence produced by the prosecution is trustworthy; in evidence of P.W.5 and P.W.6 it is clearly mentioned that the appellant was also injured in this occurrence and the same fact has been verified by the Investigating Officer.
It is contended that appellant while appearing in court under section 342, Cr.P.C., has completely denied the fact of receiving the injuries and such circumstance goes against him; certain pallets were recovered from the dead body which corroborate the ocular account. It is contended that the medical evidence, recovery and even the motive fully support the prosecution version, as he is a single accused, the deceased died because of the injuries caused by him; during, arguments learned DPG frankly concedes that the appellant was apprehended at the spot then how the gun reached the place from where the same was recovered is a question which cannot be answered.
Learned DPG states that appellant does not deserve any leniency.
10. We have heard the arguments of learned counsel for the parties and have also gone through the record.
11. The place of occurrence is the event of marriage and the presence of the appellant, deceased and the complainant at the place of occurrence is natural. The appellant was apprehended at the place of occurrence and the Investigating Officer has observed that the appellant was sent to the doctor along with the injured child and thereafter the appellant remained in the hospital. That four fire-arm injuries were attributed to the appellant and doctor has observed the presence of these injuries on the person of the deceased but he has also observed that there were also other injuries on the body of the deceased. In the cross examination the doctor has admitted that all these injuries are the result of a single fire and he has given his confirmed opinion in this respect. The injured child received three injuries, out of them one is pallet injury or her knee, the same is exit wound. There is a possibility that even this injury is the result of the same fire. This circumstance is verified from the reason that no empty was recovered from the place of occurrence. It is the prosecution case that the police came at the place of occurrence just after 1-1/2 hours and at that time even the appellant was present and was apprehended by the other persons who were attending the marriage. This an occurrence which indicate that more than hundred persons were present at the place of occurrence, so under no stretch of imagination, it can be presumed the occurrence was unseen. The presence of the complainant and the eye-witnesses at the place of occurrence has duly been explained and they cannot be said to be chances witnesses. So, this is a case in which the sole evidence of the complainant is sufficient for maintaining the conviction of the appellant.
12. As bar as the recovery of the gun from the appellant is concerned, the same is a circumstance which shows that the prosecution went beyond its means to plant the gun on the appellant by concocting such a recovery which does not appeal to mind. This leads to one inference that unnecessary padding has been done by the prosecution in this respect. The recovery of gun is otherwise of no value because no empty was recovered from the place of occurrence. A single barrel gun was recovered from the appellant, there is no evidence to indicate that it he re-loaded the gun after making the first fire. All these circumstances lead to one inference that the recovery has got no value and the same appears to be the result of padding by the prosecution.
13. As far as the motive is concerned, it is in the prosecution case that the appellant abducted the sister of the complainant and thereafter the matter was patched up and step sister of the appellant (the deceased of this case) was married to the complainant. So the matter must have ended. There was also a small child of three months with the deceased. So this marriage must have taken place nearly two years back and in that period no untoward incident was reported. It is also in evidence that during the last night of the occurrence both the parties have been meeting each other, so even at that time no untoward incident took place. The presence of more than hundred witnesses at the place of occurrence is natural and the same is admitted by the witnesses. No reason for the appellant to commit such an offence at such a gathering has come on record. If the appellant had motive, as described by the prosecution, then he had ample chance of committing this offence at some time in the night or at some other place. No reason for the commission of this offence in the presence of so many persons has come on the record and this is a question which has not been explained by the prosecution. It appears that the appellant has committed this occurrence for some strong reason which has resulted in the commission of firing made in the gathering of hundred people and that reason has been suppressed by the prosecution.
14. So far as the medical evidence is concerned, we have observed that the presence of wad in the dead body leads to only one inference that the fire was made from a close range. In the whole prosecution case it is stated that the fire was made from a distance of five feet. The E prosecution version is not in line with the medical evidence. The appellant made four shots and four injuries were observed by the doctor but ultimately the doctor has confirmed that these injuries were the result of single fire. No reason for firing at a small child of three months has come on the record. So in these circumstances we can say that something else had happened immediately before the occurrence which resulted for the commission of this offence. The complainant has admitted at one stage of cross-examination that when he came he saw the appellant was running after firing at the deceased. The involvement of the appellant cannot be denied because no reason for his false involvement has come on record and no reason to leave the real culprit is available to the prosecution. He is the sole accused mentioned in the F.I.R. The occurrence took place during marriage ceremony and the same cannot be expected to be un-witnessed occurrence. So it appears that something else happened at the spur a moment which has not been explained by the prosecution that led to this occurrence. The appellant apprehended at the spot who could not explain the reasons how he received injuries.
15. In the said circumstances, we do not find any reason to differ with the findings of the learned trial Court qua the conviction of the appellant under section 302(b), P.P.C. However, as far as the quantum of sentence of the appellant for the said offence is concerned, in this regard, we have observed that the prosecution remained 'unable to explain as to how the occurrence started and how the appellant received serious injuries in the same occurrence. In these circumstances the appellant is entitled to certain exceptions. The doctor observed that the deceased received injuries as a result of single fire so there is no evidence on the record to show that the fire was repeated and this fact is further proved from the circumstance that no empty was recovered from the place of occurrence. In case titled Muhammad Arshad and 2 others v. The State (PLD 1996 Supreme Court 122), the honourable Supreme Court has held that a single fire by an accused can be considered a mitigating circumstance for awarding the lesser sentence. It is also well settled that even while awarding sentence the court has to consider all the circumstances in that prospective and the benefit of doubt even at that stage has to be granted to an accused. The honourable Supreme Court in case titled Israr Ali v. The State (2007 SCM R 525) held that "accused persons are entitled to extenuating benefit of doubt on the question of sentence". In these circumstances, the award of death sentence to the appellant under section 302(b), P.P.C. Is too harsh. Accordingly while maintaining the conviction of the appellant under section 302(b), P.P.C. We convert his death sentence into that of imprisonment for life.
However, the appellant shall pay the compensation as ordered by the learned trial Court.
16. As far as the conviction and sentence of the appellant for the offence under sections 324, 337- L(2) and 337-F (ii), P.P.C. Is concerned, no doubt there is no evidence to indicate that the appellant had intended to cause injury at the child but the thing remains that the child was with lap of the deceased and still the appellant fired at her knowing well the result of such fire, as such the conviction and sentence of the appellant for the said charges is maintained. The conviction and sentence of the appellant under sections 324, 337-L(2) and 337-F(ii), P.P.C. Are maintained.
17. All the sentences of imprisonment shall run concurrently and the appellant is also entitled to get the benefit of section 382-B, Cr.P.C.
18. With the said modification in the impugned judgment, the appeal filed by the appellant (Criminal Appeal No.28-J of 2007) stands dismissed.
19. Resultantly death sentence awarded to the appellant is not confirmed and murder reference i.e Murder Reference No.657 of 2005 is answered in the negative.