SHAHID HAMEED DAR, J. - The appellant Hassan Askari was held guilty for the murder of Gulraiz Shah. He was convicted under Section 302(b), P.P.C. And sentenced to Death with order to pay Rs.
1,00,000/- as compensation under Section 544-A, Cr.P.C to the legal heirs of the deceased or in default to undergo six months' S.l. The convict has filed Crl. Appeal No. 285-J of 2005 through Superintendent District Jail, Gujrat against the judgment of the learned Trial Court dated 20.06.2005. The learned Trial Court has submitted Murder Reference No. 807 of 2005 under Section 374, Cr.P.C. For confirmation of the death sentence of the appellant. This judgment will dispose of the above-said appeal and the reference.
2. Aslam Shah complainant died midway through trial, therefore, he could not be examined as a prosecution witness in this case.
3. On 10th of October, 1998 at about 1:45 p.m. Aslam Shah complainant after dropping the dowry articles of the daughter of his relative Said Shah, at his residence, was returning to his house alongwiTh his paternal nephew Gulraiz Shah'(deceased). When they reached near the building of post office they found Hassan Shah (appellant) armed with rifle .222 bore and Haider Shah (since acquitted) armed with pistol .30 bore standing at the outer door of the former's house. On seeing Gulraiz Shah, the appellant-accused fired with his rifle which hit Gulraiz Shah below his right eye, close to nose. Haider Shah (since acquitted) fired with his pistol which injured the right hand of Gulraiz Shah. Thereafter Hassan Shah accused fired 4/5 successive shots which landed on the right & left flank, right elbow and left hand of Gulraiz Shah who resultantly fell down. Hassan Shah appellant and Haider Shah since acquitted fled away after the occurrence. Aslam Shah complainant saved his life by hiding himself behind nearby houses and witnessed the occurrence.
Gulraiz Shah succumbed to the injuries on way to the hospital.
Aslam Shah complainant gave statement to Muhammad Gulzar Beg, PW-3 at 2:30 p.m. On 10.10.1998 for registration of F.I.R. Exh.PD.
4. The motive behind the occurrence was that Hassan Shah appellant had been arrested in a narcotics case and was released on bail a few days before the occurrence. He had the suspicion that Gulraiz Shah deceased had furnished a spy information against him to the police so due to this grudge he alongwith his co-accused committed the murder of Gulraiz Shah in furtherance of their common intention. The occurrence was witnessed by Ahmad Shah PW-4 and Safdar Shah, PW-5.
5. After completion of due investigation by Rashid Ahmad, SI, PW-8 the appellant was found involved in the occurrence, hence, challan under Section 173, Cr.P.C. Was submitted against him. On receipt of the challan, charge was framed against the accused, to which he pleaded not guilty and claimed a trial. The prosecution at trial, in order to prove its case examined 8 witnesses in toto.
6. The prosecution relies on the ocular account/ version of Ahmad, Shah, PW-4 and Safdar Shah PW-5 as well as the testimony of Fayyaz Shah PW-2. Reliance was also placed on the recovery of rifle .222 bore P-1 and the medical evidence presented by Dr. Muhammad Tariq, M.O, PW-7.
7. The dead-body of Gulraiz Shah deceased was subjected to autopsy by Dr. Muhammad Tariq, PW-7 at 9:00 a.m. On 11.10.1998 vide post-mortem examination report Exh PE with pictorial diagrams Exh.PF/1 and Exh.PF/2 who found following injuries on the dead-body:-
(1) A fire-arm entry wound 4 c.m. x 4 c.m. On right cheek close to the nose.
(2) A fire-arm entry wound 3 c.m. x 3 c.m. On dorsal aspect of right middle ring and little finger.
(2-B) A fire-arm exit wound on palmer aspect of the same hand.
(3-A) A fire-arm entry wound 3 c m. x 5 c.m. On dorsal side of left hand at the base of ring ' finger.
(3-B) A fire-arm exit wound 3 c.m. x 3 c.m. On palmer aspect of the left hand.
(4-A) A fire-arm entry wound 1 c.m. x 1 c.m. On right upper arm anteriorly.
(4-B) A fire-arm exit wound 1 c.m. x 1 c.m. On posterior medial side of right and upper 1/3'" arm.
(5-A) A fire-arm entry wound 1 c.m. x 1 c.m. On the right side of chest close to axilla.
(6-A) A fire-arm entry wound 2 c.m. x 2 c.m. On outer aspect of right forearm, close to elbow joint.
(6-B) A fire-arm exit wound 6 c.m. x 6 c.m. On anterior medial of middle forearm.
(7-A) A fire-arm entry wound 1 c.m. x 1 c.m. On back left side of chest.
(8-A) A fire-arm entry wound 1 c.m. x 1 c.m. On back of lower part of the chest.
(8-B) A fire-arm exit wound 2 c.m. x 2 c.m. On the front of chest near nipple.
(9-A) A fire-arm entry wound 1 c.m. x 1 c.m. On the right hypochordium.
(9-B) A fire-arm exit wound 4 c.m. x 4 c.m. On the right lumber region.
The cause of death as recorded by the Medical Officer was heavy haemorrhage, shock and cardio pulmonary arrest due to injuries Nos. 1, 5, 7, 8 and 9 which had damaged the vital organs. All the injuries were anti- mortem and caused by fire-arm.
The probable time elapsed between injuries and death was calculated by the Medical Officer as "within half an hour" whereas between death and post-mortem examination as within 24 hours.
7. The appellant denied the allegation of murder and said in his statement under Section 342, Cr.P.C. That he had been falsely implicated in the case. When questioned "why this case against you and why the PWs have deposed against you", he gave the following answer:- "In my village Moin-ud-Din Pur where the occurrence took place, there is lot of enmity among the people residing there. Many persons have been murdered up-till now. One Ashraf Shah, who is the real uncle of the deceased is the brother-in-law of one Fazil Shah,. whose son have severe enmity in the village and even outside the village. Fazil Shah is also the maternal uncle of the witness Safdar Shah. The deceased had sympathy with Fazil Shah and his sons. The deceased was strongly affiliated with Fazil Shah. One Mazhar Shah, Azhar Shah, Jafar Shah and Dilawar Shah were the Khalazad of Akram Shah, the father of deceased. The above-said Mazhar Shah etc. Are involved in many murder cases. The deceased always supported the above-said Mazhar Shah etc. And committed many crimes being the relatives and the party man of Mazhar Shah etc. The deceased had also enmity with many other persons of village, who murdered him. The deceased was not of good repute. My co-accused Haider Shah has been acquitted by the Hon'ble High Court relying upon the same evidence on file. The PWs are related to the deceased."
8. To another question "Will you produce defence evidence" the appellant replied in affirmative but did not produce any defence evidence nor opted to appear under section 340(2), Cr.P.C. As his own witness to repel the charge against him.
9. On conclusion of the trial, the learned Trial Court appraised the evidence available on the record, held the appellant guilty of offence, convicted and sentenced him in the terms mentioned hereinbefore through the judgment under appeal.
10. We have heard learned counsel for the parties and have gone through the record of this case with their able assistance.
11. It is contended by the learned counsel for the appellant that the prosecution story was full of improbabilities and the learned Trial Judge has convicted and sentenced the appellant-accused merely on conjectures and surmises; the testimonies of the witnesses of ocular account are replete with countless contradictions and discrepancies which are fatal to the prosecution case; the place of occurrence is situated just in front of the house of the appellant which reflects upon the intrinsic value of the prosecution story; the house of the appellant by no means fell on the way to the house of Said Shah from the house of the complainant party so the acclaimed version of the eyewitnesses is open to serious exception; the case of the appellant is hardly distinguishable from the case of his co-accused Haider Shah who had been acquitted by this Court vide judgment dated 15.12.2004; the deceased was the person of a dubious character and countless persons had suffered at his hands in the past; the deceased being a rouge had himself invited the trouble by launching an attack at the residential house of the Appellant; the motive alleged by the prosecution remained unproven during the trial inasmuch as the alleged arrest of the appellant in a narcotics case, his release on bail and the alleged spy information could not be established through any evidence; the recovery evidence qua rifle .222 bore P-1 is weak and the crime weapon has been planted upon the accused to strengthen a false case against him; the medical evidence does not corroborate the prosecution case in any manner as the dead-body of the deceased was dissected by the Medical Officer after about 19 hours of the occurrence which negates the version of the eye-witnesses as well as the registration of the F.I.R. At 2:30 p.m. The prosecution has miserably failed to bring home the guilt of the accused beyond any reasonable doubt and he is entitled to be acquitted; the motive being unproven is a mitigating circumstance in favour of the convict-accused and it renders the case of the appellant fit for reduction in sentence; lastly contends that the judgment under appeal suffers from non-reading and misreading of evidence which bears the character of arbitrariness, capriciousness and perversity which is liable to be set aside and the appellant merits acquittal.
12. By rendering the aforesaid submissions the learned counsel for the appellant showed confidence to have ripped through the prosecution case and concluded his submissions that the appellant was entitled to be acquitted of the charge.
13. Conversely, learned Deputy Prosecutor General has submitted that the prosecution satisfactorily discharged its onus to prove its case against the appellant beyond reasonable shadow of doubt through cogent and confidence inspiring evidence; the deceased was attacked and brutally murdered by the appellant and the medical evidence fully establishes the charge against the accused; the ocular account has been rendered by the truthful witnesses and their presence at the spot at the time of occurrence is not open to any question; the appellant failed to offer any explanation qua his longstanding abscondence during the trial which is an added corroboratory material against him; the prosecution case stands established by all means so he is not entitled for any relief or- leniency; lastly submits that there is no mitigating circumstance in favour of the accused for a lesser sentence.
14. In the instant case the occurrence had taken place at 1:45 p.m. On 10,10.1998 just in front of the house of the appellant situated in revenue limit of village Moin-ud-Din Pur which is at a distance of about 2 miles from the police station Saddar Gujrat while the matter was reported to the police at 2:30 p.m. The same day by Aslam Shah complainant though his verbal statement. The F.I.R. Exh.PD in attending circumstance of the case has been shown to be a promptly lodged F.I.R. The ocular account has been furnished by Ahmad Shah PW-4, a person from the same brethren and Safdar Shah, PW-5 a maternal nephew of the deceased. Aslam Shah, complainant who died before his examination, was the real paternal uncle of the deceased. Mere relationship of the prosecution witnesses with the deceased cannot undermine the intrinsic value of their testimonies unless they are shown to be inimical to the deceased.
15. The witnesses of the ocular account have categorically stated in their testimonies that they alongwith Muhammad Aslam complainant and Gulriaz Shah deceased had gone to the house of Said Shah to deliver dowry articles of his daughter who was scheduled to be married on 11.10.1998.
They after having done the task were returning to their house when they were surprised by Hassan Askari appellant who being armed with rifle showered bullets upon Gulraiz Shah in the backdrop of his arrest in a drugs case which landed on various parts of the body of Gulraiz Shah who on receiving the fire shots fell to the ground and breathed his last. Haider Shah, the acquitted co- accused of the appellant also authored a fire-arm injury on the right hand of the deceased but his appeal against conviction was accepted by this Court, resultantly he was acquitted. Ahmad Shah PW-4 and Safdar Shah PW-5 have impeccably deposed about the role of the appellant and we find from the statements completely in line with each other. They have delivered spontaneous and naturally believable testimonies and they at no point of their statements appear to be jolted. We have gone through their testimonies with the help of the learned counsel for the parties and we are of the view that they gave the evidence with full confidence. They stood the test of cross- examination as best as is expected from a truthful witness. Their statements are full of sincerity and warmth. The witnesses have fulfilled all the essential ingredients regarding judicial propriety, which to-the mind of this Court is always subject of law and judicial discretion. We would like to quote para 1347 from Archbold Criminal Pleading, Evidence and Practice, thirty-five Edition by Butler and Garsis, dealing with credibility of witnesses:- "The credibility of a witness depends upon (1) his knowledge of the facts to which he testifies; (2) his disinterestedness; (3) his integrity; (4) his veracity; and (5) his being bound to speak the truth by such an oath as he deems obligatory, or by such affirmation or declaration as may by law be substituted for an oath (pst para. 1357). Proportioned to these is the degree of credit his testimony deserves from the Court and Jury".
16. Both the witnesses, PW-4 and PW-5, have narrated the circumstances of the prosecution case with minutest details and there is hardly any element of haze or obscurity in their testimonies. A cogent and plausible reason has been offered by them as to how they got to the place of occurrence and their arrival at the spot at the relevant time has not been, seriously challenged by the defence during the trial. The most important and crucial point in the prosecution case is whether the house of the appellant-accused fell on way to the house of Said Shah from. The. House of the complainant which has not been even touched upon by the defence while squeezing eye- witnesses. The requisite law in this regard is that any portion of the statement of the witnesses having gone un-challenged during cross- examination shall be deemed to have been admitted by the accused. A number of questions have been put to both the PWs as to the surrounding of the place of occurrence w's-a- vis shops, the roads, the paths etc. But not even a suggestion that the house of the appellant was not situated at the point and on the passages, as contend by PW-4 and PW-5.
17. The village Moin-ud-Din Pur, where the occurrence of murder of Gulraiz took place is not less than a battle field as 100 of murders have been committed in this small town. A positive suggestion was put to PW-5 by the defence which was replied in affirmative by the witnesses which is hair- raising and mind boggling and we learn from the said suggestion that hundreds of murders had takken place in the said village. Besides such a large scale massacre in the area, the defence failed to hint at any previous enmity between the deceased, the appellant and the eye-witnesses. We have not found any noticeable inconsistency, pitfalls or contradictions in the statements of both the eye-witnesses except for a few trivial and negligible discrepancies which are bound to occur with the passage of time. The occurrence in the instant case took place in year 1998, and the testimonies of both the PWs were recorded in year 2003, after more than 5 years of the occurrence.
18. The co-accused of the appellant Haider Shah was though convicted and sentenced to life imprisonment by the learned Trial Court in the first round of the trial but his appeal against conviction/sentence was allowed by this Court on 15.12.2004 mainly for the reason that the medical evidence had been found insufficient and un-corroborative to his extent, couple with the observation that the picture emerging from the prosecution case hinted at the guilt of his absconding co-accused i.e. Hassan Askari, the appellant. The objection of the learned counsel for the appellant that same evidence should not be believed in respect of the appellant which had been rejected in respect of Haider Shah Co-accused of the appellant, is devoid of any force as the medical evidence corroborates the eye-witness account against the appellant. Much stress has been laid by learned Deputy Prosecutor General on the factum of abscondence of the appellant but it has hardly any relevance in the attending circumstance of this case. Though the prosecution endeavoured to bring on record the requisite evidence to establish the abscondence of the appellant yet they showed negligence during trial and committed the folly of not putting the said piece of evidence to the appellant-accused in his statement under Section 342, Cr.P.C. So as to enable him to explain his position. As the appellant has not been examined about abscondence so this piece of evidence cannot form basis of conviction and such a piece of evidence not put to the accused has to be ruled out of consideration. The law requires that every bit of incriminating evidence must be put to the accused in his examination under Section 342, Cr.P.C so as to seek his reply and failure to do so shall exempt the accused from any penal action against him in respect of the missed piece of evidence so the evidence of abscondence is inconsequential. We advantageously rely upon Noor Muhammad v. The State (2010 SCM R 97), Abdul Wahab v. The Crown (PLD 1958 FC 88), The State v. Gohar Rehman and another (1969 SCM R 460), Sheral alias Sher Muhammad v. The State (1999 SCM R 697) and Majnoo v. The State (PLJ 1985 Cr.C. 210).
19. Both the eye-witnesses have given an account of occurrence which appeals to reason and logic and acceptable to common prudence and despite searching cross-examination but they could not be shaken at all by the defence. They have rendered credible and truthful testimonies and we do not find any terminal circumstance which could cause the brushing aside of the same.
By no argument they can be termed as the chance witnesses as they have offered the plausible explanation and purpose of their presence at the crucial time of occurrence. The site plan Exh.PA is another source of corroboration to the prosecution case as the place of occurrence is situated at a thoroughfare and the "drawing made by Akhtar Naqash draftsman PW-1 supports the version of the eye-witnesses as to the surroundings of the place of occurrence. The objection raised by the learned counsel for the appellant that the place of occurrence was a residential area, where independent persons resided and none of them had come forward to substantiate the prosecution version, carries little value as the independent persons for fear of reprisal usually hesitate to come forward to depose against the perpetrators of a crime so as to save them and their families from any probable danger or trouble. The matter was reported to the police with promptitude in fact within 45 minutes of the occurrence. The appellant-accused was previously known to the witnesses of ocular account so there was no probability of mistaken identity of the accused. All the injuries on the body of the deceased except for a tiny injury attributable to acquitted co-accused, have been authored by the appellant as he spread volleys of bullets upon the ill-fated youth. The ocular account having been furnished by truthful witnesses is fully corroborated by the medical evidence. There is no reason to discard or brush aside the testimonies of the witnesses of ocular account which we hold to be forthright, trustworthy and worth reliance. Therefore, the conviction of the appellant as recorded by the learned Trial Court is confirmed.
20. Insofar as the evidence qua the motive is concerned we find that it has gone unproven during the course of the trial. The complainant had alleged in the F.I.R. Exh.PD that Hassan Askari appellant had been arrested in a narcotics case who was released from the -prison on bail a few days prior to the occurrence and he had the suspicion that it was Gulraiz deceased who had given a tip off to the police against him and having nursed this grudge against him he committed the murder of Gulraiz Shah deceased. Following points were required to be proven by the prosecution during the course of the trial so far as the alleged motive was concerned:-
(1) The implication of the appellant in a narcotics case.
(2) His arrest in the said criminal case.
(3) His release on bail a few days prior to the occurrence.
(4) The doubt of the appellant against the deceased qua factum of passing a spy information to the police.
21. The motive as mentioned above in the instant case was of such a kind which could be established by the prosecution both orally as well as through documents. If the appellant had been involved in a criminal case of contraband substance, arrested on the sard charge, dispatched to judicial lock-up and released on bail a few days before the occurrence, it would have been easily established during the course of the trial. None of the eye-witnesses or any other witness produced by the prosecution has deposed about the above-said factors in their testimonies during trial. The number of the F.I.R. Case against the appellant, his date of arrest and dispatch to the judicial lock- up and the date of his release on bail are shrouded in nebulousness and the prosecution does not have any answer to the objection of the leaned counsel for the appellant that the motive as setup by the prosecution has gone unproven. There is nothing in the evidence of Ahmad Shah PW-4 and Safdar Shah PW-5 pertaining to the motive. Once a specific motive has been setup the onus to prove the same would invariably lie upon the prosecution, in case, they fail to discharge the burden efficaciously, they have to bear the consequences of their failure and the benefit thereof has to be extended to the accused. There was no other previous enmity or rivalry between the appellant and the deceased and the only motivating factor alleged against the appellant by the prosecution pertained to the aforesaid stimulus factor, which has gone a begging. The offence Of murder may be committed wantonly or without motive but if the motive is alleged by the prosecution and is found false the consequence thereof have to be resolved in favour of the accused. The inadequacy of motive certainly comes into background in face of clear, cogent and convincing evidence but non-establishment of motive certainly has bearing on the quantum of sentence and the benefit of obscurity of motive has to be extended to the accused. The reliance is placed on Muhammad Bashir v. Khalid Mehmood and another (1994 SCM R 1096), Mst. Roheeda v. Khan Bahadur and another (1992 SCM R 1036), Zulfiqar alias Bhutto v. The State (1995 SCM R 1668).
22. This now brings us to the question of sentence awarded to the appellant. As discussed above, the motive setup by the prosecution has gone unproven. The place of occurrence is situated just in front of the house of the appellant. Barring the non-established motive the witnesses of ocular account could not show any other inducing factor against the appellant to have launched the attack on the deceased. What happened immediately before the occurrence and what transpired between the parties at the nick of the hour is not known and remained shrouded in mystery. The allegation qua abscondence of the accused- appellant could also not be proved. The recovery of the crime weapon lost its relevance as rifle .222 bore P-1 allegedly got recovered by the appellant from his house on 28.03.2003 vide memo. Exh.PC is also of no consequence to the prosecution case as no report from the fire-arm expert has been brought on the. File by the prosecution to prove it the weapon of offence. In absence of recovery of any crime empty, the question regarding matching of the rifle with any spent bullet does not arise. The aforesaid factors shall have bearing upon the quantum of sentence' awarded to the appellant by the learned Trial Court. The learned counsel for the appellant, has on one hand challenged the conviction of the appellant-accused but at the same moment has stoutly prayed for the reduction in the sentence of the appellant. Due to the aforesaid laxity in the prosecution case we while relying upon the above noticed glittering judgments of the august Supreme Court reduce the sentence awarded to the appellant-accused though we retain his conviction under Section 302(b), PPC and convert the same from Death to imprisonment for life with benefit of Section 382-B, Cr.P.C. The sentence pertaining to the payment of the compensation amount as awarded by the learned Trial Court shall remain unchanged.
23. The upshot of the above discussion is that Criminal Appeal No. 285-J of 2005 filed by the appellant stands dismissed with the above-said modification in sentence.
24. The Murder Reference No. 807 of 2005 is answered in the negative.
Sentence reduced.