SH. NAJAM-UL-HASAN, J.---Both the appellants i.e. Muhammad Anwar and Liaquat Ali along with their co-accused namely Mst. Khurshaid Bibi were tried by learned Additional Sessions Judge, Kharian in case F.I.R. No.346 of 2003 dated 24-9-2003 for the offence under section 302/34, P.P.C.
Registered at Police Station Dinga, District Gujrat. The learned trial court while acquitting co- accused convicted both the appellants under section 302(b)/34, P.P.C. And awarded death sentence to Muhammad Anwar appellant and imprisonment for life to Liaquat Ali appellant.
Muhammad Anwar appellant was directed to pay Rs.100,000 (rupees one lac) and Liaquat Ali to pay Rs.50,000 (rupees fifty thousand) as compensation to the legal heirs of the deceased, or in default thereof to undergo six months' S.I. Each.
2. Feeling aggrieved by the impugned judgment, both the appellants have filed Criminal Appeal No.1546 of 2005 whereas the trial Court has sent a reference (M.R.No.613 of 2005) seeking confirmation of death sentence awarded to Muhammad Anwar appellant. Both these matters are being disposed of together through this single judgment.
3. Before proceeding further in the matter it may be noted that Imran Anwar son of Muhammad Anwar appellant was also nominated in the F.I.R. As one of the accused. At trial he submitted application that he was minor and claimed trial by Juvenile Court. His application was accepted and he was separately tried by the Juvenile Court.
4. Briefly stated facts of the prosecution case as narrated in the F.I.R. (Exh.PD/1) are that on 24-9- 2003 at 7-30 a.m., complainant Muhammad Ashraf (P.W.8) along with his nephew Fasih Akram alias Sahib and Sarfraz Ahmad son of Aurangzeb were coming from cattle shed towards their house. When they reached in front of the house of Muhammad Anwar, he being armed with .12 bore double barrel gun along with his sons Imran, armed with iron rod, and Liaquat empty handed and wife Mst. Khurshaid Bibi also empty handed who had ambushed in the house with common intention at once came out. Muhammad Anwar accused raised lalkara to catch hold Fasih Akram and to teach him a lesson for demanding the money from them upon which Liaquat and Imran accused caught Fasih Akram from his arms and Muhammad Anwar accused fired at Fasih Akram (deceased) with his .12 bore gun which hit him on the back of chest towards left side, who fell down.
Mst. Khurshaid Bibi accused raised lalkara, that who ever would come forward, will face the same fate. Upon hearing the lalkara Javaid Iqbal (P.W.9) whom house was adjacent to the place of occurrence came to the spot and saw the occurrence. Fasih Akram succumbed to the injuries at the spot. The motive behind the occurrence statedly was that Fasih Akram deceased had lent Rs.
80,000 to Muhammad Anwar accused and now he was demanding the money back.
5. Upon completion of the investigation, challan was submitted before the trial court. At inception of trial, the court framed charge against the accused persons to which they pleaded not guilty and claimed to be tried. In order to prove the charge against them, the prosecution produced many as thirteen witnesses out of which Muhammad Ashraf complainant (P.W.8) and Javed Iqbal (P.W.9), eye-witnesses provided ocular account of the occurrence, the former also deposed about the motive. Dr. Tahir Bashir (P.W.10) proved the medical evidence whereas Muhammad Riaz Sub- Inspector (P.W.13) proved his investigation.
6. The trial Court also examined appellants and their co-accused under section 342, Cr.P.C.
Muhammad Anwar appellant while answering to question "Why this case against you and why the P.Ws. Have deposed against you?" made the following reply:-- "I am innocent. The P.Ws. Are closely related to the deceased and are interested P.Ws. Muhammad Ashraf complainant was inimical and had grudge with me as I appeared as P.W. Against him in a civil case. Due to enmity and grudge, he concocted a false story and involved me, my two minor sons and my wife. The real story of the occurrence is that Fasih Akram deceased purchased two Kanals of land from me for a consideration of Rs.50,000 and mutation was sanctioned in his favour for Rs.30,000 regarding the above said land. The deceased was a desperate person. He used to tease and humiliate the residents of our village and deceased had not good reputation. I had demanded the sale price of land which I sold to the deceased for many times but he did not pay me the above said amount. I was in need of money and I had sent my minor son Imran Anwar to get money from the deceased. The deceased had not met him as he was not present at his residence. Muhammad Ashraf complainant met Imran my son. Muhammad Ashraf stated to Imran that Fasih Akram deceased will not pay the amount of sale consideration. Muhammad Ashraf complainant had offered Imran my son that he would help him for getting money from the deceased. The deceased was not having good relations with Muhammad Ashraf complainant. The deceased had appeared as witness against Muhammad Ashraf complainant in a civil suit. The deceased was pursuing the case of Shabana against Muhammad Ashraf complainant. On the morning of day of occurrence, I and Liaquat my son went to our Dera of cattles after saying our morning prayer. The deceased had come in the house of Ghulam Rasool barber for his hair cutting, the house of Ghulam Rasool barber is in front of my house. Imran Anwar my son saw Fasih Akram deceased in the house of Ghulam Rasool barber and Imran had demanded money from him. Fasih Akram was a strong, stout and young man. He was a desperate person. We are having weak physique and structure. Fasih Akram was emerged on the demanding of money by Imran. The deceased was also displeased that why Imran had gone to his house in presence of Muhammad Ashraf complainant for getting money from the deceased. The deceased started abusing Imran and he had slapped him. Hearing hue and cry, my wife Khurshaid Begum arrived on the place of occurrence and she intervened to save Imran my son. The deceased also started beating my wife Khurshaid Bibi. He abused her. The deceased caught my wife from the hair of her head and he dragged her. The deceased was giving kick blows when Khurshaid Begum was lying on the ground and my son Imran went in my house and brought a gun and he fired one shot on the deceased to save his mother from the clutches of the deceased. No eye-witness of prosecution was present on the place of occurrence. The complainant had involved my whole family in this case while inserting his brother in law as witness.
We belong to a humble and poor family when the deceased party is an influential and rich family and the complainant party is arrogant having feudal tendency."
7. While answering to the same question, Liaquat Ali appellant adopted the version taken by his co- convict Muhammad Anwar.
8. None of the appellants made statement under section 340(2), Cr.P.C. However Muhammad Anwar appellant produced certified copy of Mutation NO.772 (Exh.DA) in his defence. The learned trial court after appraisal of evidence available on the record vide judgment dated 22-3-2005 convicted and sentenced both the appellants as narrated earlier, hence this appeal.
9. Learned counsel for the appellants contends that in this case the occurrence has taken place in front of the house of the appellants; that it was the deceased who had come to the house of the appellants at 7-30 a.m., and no reason for his presence at the spot has been given by the prosecution. It is further contended that in fact Muhammad Anwar appellant had sold his land to the deceased through Mutation No.772 (Exh.DA.) and the deceased was not paying the amount and the story that the appellant owed the amount to the deceased is not correct and sands falsified through mutation i.e. Exh.DA that the deceased was having enmity with many other persons and in this respect an F.I.R. (Exh.DB) was placed on record by the defence. Learned counsel contended that Muhammad Ashraf complainant was uncle of the deceased whereas Javaid Iqbal (P.W.9) was brother-in-law of the complainant and both the witnesses were not residents of the area where the occurrence took place and that the independent eye-witness, namely Sarfraz was not produced by the prosecution and he was given up. It is contended that the place of occurrence is a thickly populated area and the non-production of the independent witness is a circumstance which goes against the prosecution and in such a circumstance the statements of the witnesses cannot be relied. Upon without having any independent corroboration which is not available in this case. Learned counsel contended that according to the prosecution Muhammad Anwar appellant made a single fire on the back of the deceased, it was not claimed by the prosecution that he repeated the fire although he was having double barrel gun. Muhammad Riaz, Sub-Inspector claimed that during spot inspection he collected one crime empty of .12 bore gun vide memo.
Exh.PF. Learned counsel has vehemently argued that when Muhammad Anwar, appellant did not reload his gun there was no occasion for falling an empty on the ground, hence, alleged recovery of crime empty is a circumstance which seems to have been fabricated to create evidence against the said appellant as such the positive report of the fire-arm expert is of no use to the prosecution. Learned counsel goes on to say that the gun recovered from the appellant was a licensed gun which must have been taken by the Investigating Officer on the very day of occurrence and after preparing empty of the same the gun was sent to the fire-arm expert on 7- 10-2003 i.e., after twelve days of its recovery. It is further contended that the other accused namely Liaquat and Imran sons of Anwar, appellant were attributed the role of catching the deceased in their Jepha. It is contended that it is highly improbable that two persons would hold the deceased in their Jepha and the third one will fire at him; even otherwise no injury is attributed to these two persons, Imran was juvenile at the time of occurrence and was tried separately by a Juvenile Court.
It is further contended that the same prosecution witness qua Khursheed Bibi co-accused was not believed by the learned trial Court and as such she was acquitted. Learned counsel has further emphasized that no doubt during the trial Imran minor son of the appellant has taken a specific stance that in fact he has fired at the deceased and this stance was also taken by the appellants Anwar and Liaquat but if the statement of an accused is to be accepted then the same has to be accepted in totality and in that event Anwar appellant and Liaquat are liable to be acquitted.
Learned counsel argued that the circumstances that the fire has not been repeated, the occurrence has taken place in front of the house of the appellants, the motive put forward by the prosecution was found incorrect rather it appears that the motive put forward by the accused side appears to be correct and the appellants have been falsely involved in this case; that Muhammad Anwar appellant was 68 years of age at the time of recording his statement under section 342, Cr.P.C. When put together lead to one conclusion that something else had happened immediately before the occurrence; P.W.9 while appearing in court has stated that the fire was made from a distance of 4/5 feet so the -story regarding Japha is highly improbable, in the said circumstances, this is not a case of capital sentence and Muhammad Anwar appellant is entitled to certain exceptions and Liaquat Ali appellant is entitled to clean acquittal.
10. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant states that the occurrence has taken place in the street when the deceased was coming to his house from the Dera so the presence of the deceased at the place of occurrence cannot be considered as a circumstance that he intentionally came to the house of the appellant to kill him, as the place of occurrence is a street so the version put forward by the complainant is more plausible; blood stained earth was taken from the street and not from inside the house so the version put forward by the appellant does not get support from any other evidence. It is contended that the motive set by the prosecution has been fully proved in the mutation produced by the defence as Exh. DA, where it is mentioned that the amount has already been received and there is no reason for the deceased to be there. It is contended that the F.I.R. Was registered just after one hour and twenty minutes of the occurrence whereas the police station was at a distance of seven kilometers, the postmortem examination on the person of the deceased was conducted within six hours and as such all these circumstances lead to one inference that there was no time for the complainant for maneouvering the case so the F.I.R. Has got sufficient sanctity, in the F.I.R. Specific role has been attributed to Muhammad Anwar of having fired shot, and Liaquat and Imran (Juvenile) were assigned the role of getting hold of the deceased and the presence of abrasions at the arm of the deceased corroborate the ocular account and the involvement of Liaquat and his co-accused is proved from presence of the abrasions on the arm of the deceased; that the crime empty of .12 bore was recovered by the investigating officer on the day of occurrence and the same was sent to the fire-arm expert on 7-10-2003. Anwar appellant was arrested on 26-10-2003 and the gun recovered from him on 4-11-2003 was sent to Fire-Arm Expert on 6-11-2003 and the report of the fire-arm expert is positive, which is a circumstance that fully implicates Anwar, appellant. It is contended that the witnesses are independent and nothing could be brought on the record by the defence to indicate that they made false statements against the appellants, the role, the kind of weapon and even the seat of injury are fully mentioned in the F.I.R. And it has come on the record through evidence that the witnesses fully proved the ocular account. Learned counsel has argued that during the whole investigation the version put forward by Imran co-accused was not brought on record and it was only during the trial that this version was introduced and it appears that the same has been introduced because Imran was juvenile and was entitled to certain exceptions under the Juvenile Justice System Ordinance, 2000, as such the version taken by him cannot be relied upon. It is contended that when the specific defence is brought on the record to bring the case within the general exceptions under Article 121 of Qanoon-e-Shahadat Order, 1984 it is for the defence to prove the same and in this case the same has not been done, so the accused are not entitled to any exception. Learned counsel for the complainant while relying on case titled Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCM R 427), submits that when even a single fire is made at such a place in which the result is obvious then such a circumstance does not call for lesser sentence. It is further submitted that the mode of occurrence indicates that the accused had all the intention to kill the deceased, they came being armed with fire arms and fired at the deceased in straight, as such they are not entitled to any exception.
10.(sic.) We have heard the arguments of learned counsel for the parties and have also gone through the record.
11. It is a case in which the F.I.R. Was registered just within one hour and twenty minutes of the occurrence. The occurrence took place in A front of the house of the appellants in the street. The place of occurrence is a thickly populated area and two eye-witnesses Muhammad Ashraf complainant (P.W.8) and Javaid Iqbal (P.W.9) have been produced by the prosecution. The complainant is uncle of the deceased whereas the other P.W. Is brother in law of the complainant.
In the F.I.R. Main role was attributed to Muhammad Anwar appellant and the role of getting hold of the deceased at the time of occurrence was assigned to Liaquat and Imran. Imran was juvenile at the time of occurrence so he was separately tried by the Juvenile Court. The role attributed to Mst.
Khursheed Bibi was that of raising lalkara after the occurrence. In the F.I.R. Only one injury was attributed to Anwar and there is no injury attributed to any of the other accused. At the trial both the said eyewitnesses ,remained consistent on the point that it was Muhammad Anwar appellant who fired at the deceased. The duration, location and the nature of injury narrated by the said eye- witnesses is the same as B observed by Dr. Tahir Bashir (P.W.10) while conducting the postmortem examination on the dead body of the deceased. Thus, the medical evidence fully supports the ocular account.
12. Admittedly the weapon used in the occurrence was the licensed gun of Anwar appellant. The crime empty (P.W.9) was secured from the spot on 24-9-2003 i.e. The day of occurrence which was sent to the firearm expert on 7-10-2003. Gun (P.5) was recovered from the appellant on 4-11-2003 which was sent to the fire-arm expert on 6-11-2003 so it is clear that the empty was sent to the fire arm expert before the arrest of the appellant. The report of the fire-arm expert is positive and is a circumstance which leads to one inference that the fire made at the deceased was made from gun which was recovered from Muhammad Anwar appellant. In the said circumstances we do not find any reason to differ with the findings of the learned trial court qua conviction of Muhammad Anwar appellant on the charge under section 302(b), P.P.C. However, as far as his quantum of sentence is concerned, in this regard, we have observed that there is only a single fire-arm injury on the person of the deceased, whereas .12 bore double barrel gun was recovered from Muhammad Anwar appellant. So one thing is clear that the appellant never tried to aggravate the offence and was satisfied after firing a single fire at the deceased on his back. In the case titled Muhammad Arshad and 2 others v. The State (PLD 1996 Supreme Court 122), the honourable Supreme Court held that a single fire by an accused can be considered as an extenuating circumstance for awarding the lesser D sentence. The place of occurrence is front of the house of the appellant which is another circumstance to indicate that he never planned to commit this occurrence. The presence of the deceased at the place of occurrence was only per chance. It has come on the record that it was not daily routine of the deceased to pass through the of occurrence. Some monetary dispute is admitted by both the parties but at one stage it is stated that it was the deceased who had tended the money and on the other hand it was stated that the amount had already been paid. In the E existence of such a dispute there is a possibility that something else had happened at the spur of moment which resulted into this ugly occurrence. The occurrence in this case took place in front of the house of the appellant, the gun used in the occurrence is a licensed weapon of the appellant so there is a possibility that the presence of gun at the place of occurrence is a circumstance which does not indicate any planning by the appellants for the commission of this offence. It is golden principle that every benefit of doubt at every stage has to be extended to the accused. In the case titled Israr Ali v. The State (2007 SCM R 525) the honourable Supreme Court has held that "Accused persons are also entitled to benefit of doubt on the question of sentence". There are two judicial stages for the Court to decide a criminal case against accused i.e. One is regarding the conviction and the other is regarding awarding of sentence. There are two sentences provided for the offence -under section 302(b), P.P.C. i.e. One is imprisonment for life and the other is death sentence and discretion has been left with the court to award a sentence while keeping in view the dictum of the Hon'ble Supreme Court in this respect. In view of the circumstances as discussed above, we think that the imprisonment for life to Muhammad Anwar appellant provided under section 302(b), P.P.C. Would be sufficient, meet the ends of justice'. Consequently while upholding the conviction of Muhammad. Anwar appellant under section 302(b), P.P.C. We convert the sentence of death of the appellant into that of imprisonment of life with the benefit of section 382-B, Cr.P.C., however, Muhammad Anwar appellant shall pay the compensation as ordered by the learned trial Court.
13. As far as Liaquat appellant is concerned, the role attributed to him is that he along with his co- accused Imran (Juvenile) caught hold the deceased. It is not believable that to make a single fire two persons would hold the victim (target) from his hands. No one will take such risk receiving a fire-arm injury in such a situation. The injury on the person of the deceased was on his back and the same was from a close range. He was empty handed at the place of occurrence and no injury to the deceased is attributed to him. The matter regarding his common intention is not proved from the evidence brought on record. We think he is entitled to benefit of doubt.
14. In view of what has been noticed and discussed above Criminal Appeal No. 1546 of 2005 to the extent of Liaquat Ali appellant is allowed, the conviction and sentence of Liaquat Ali appellant is set aside and he is acquitted of the charge. He is on bail and stands discharged of his bail bonds.
15. With the said alteration in the impugned judgment Criminal Appeal No. 1546 of 2005 to the extent of Muhammad Anwar appellant is dismissed.
16. Resultantly the death sentence awarded to Muhammad Anwar appellant is not confirmed and Murder Reference No. 613 of 2005 is answered in the negative.