CRIMINAL APPEAL NO.150-L OF 2009 ' IJAZ AHMED CHAUDHRY, J.---None has appeared to pursue this appeal. However, since it is an old matter, we are inclined to proceed with the matter in the interest of justice.
2. Through this appeal by leave of the Court, the appellant/complainant has challenged the vires of the impugned judgment passed by the learned Lahore High Court vide which the death sentence awarded to the respondent Tufail Ahmed under section 302(b), P.P.C. Has been converted into 25 years' RI under section 302(c), P.P.C. And the respondent No. 1 namely Hameed has been acquitted.
3. The prosecution story as given in the FIR briefly stated is that on the fateful day and time i.e. On 7.9.2001 after Maghrib prayer, appellant/complainant Khawaja Farooq Ahmed PW-1, Hanif Ahmed PW-2 and Latif Ahmed (deceased) were sitting in front of his house,when suddenly respondent Tufail, Hameed and Falak Sher emerged at the scene and demanded Rs.10,000/- as Ghunda Tax, upon which harsh words were exchanged between them. Whereafter acquitted co-accused Falak Sher raised a lalkara to teach them a lesson. On the lalkara, respondent Tufail brought out a dagger and inflicted dagger blow on the person of Latif Ahmed, deceased, hitting on his right hand.
Then he inflicted second dagger blow, which landed on left side of his umbilicus and thereafter the deceased fell down. Hanif Ahmed PW-2 came forward to save the deceased, upon which respondent Hameed caused a dagger blow on his right hand. Khawaja Siddique Ahmed and Khawaja Gul Ahmed also reached there and saw the occurrence. All the accused thereafter fled away from the spot with their respective weapons. The deceased was taken to hospital where he succumbed to the injuries and died. On 8.9.2001, Sh. Muhammad Ayub/SHO, PW-13, went to the hospital where the complainant produced him a written application for registration of FIR and thereafter the formal FIR was registered. The prosecution in order to prove its case produced as many as 14 witnesses. The ocular account of the incident was furnished by Khawaja Farooq Ahmed, complainant, PW-1 and Hanif Ahmed PW-2, who also received injury on his hand. Motive behind the occurrence was that the respondents-accused were residents of the same Mohallah where the complainant was residing and were involved in narcotics business and used to extort Ghunda tax from the people. About two years prior to the occurrence, the accused injured his brother Muhammad Saleem for not paying the Ghunda tax on which a case was got registered against the accused but the same ended in compromise between the parties. It is alleged that the accused kept the grudge in their heart and due to this and for not paying the Ghunda tax, this occurrence took place.
4. The learned Trial Court vide its judgment dated 15.9.2003 while acquitting co-accused Falak Sher, convicted the respondents-accuse4 Tufail Ahmed and Hameed under Section 302(b), P.P.C. And sentenced respondent Tufail to death and Hameed respondent to life imprisonment. They were also directed to pay Rs.50,000/- each as compensation to the legal heirs of the deceased or in default whereof to further undergo SI for six months. They were also convicted under Section 324/34, P.P.C. For launching murderous assault on Hanif Ahmed PW-2 and were sentenced to seven years RI each. They were also ordered to pay an amount of Rs.10,000/- each as compensation to the injured Hanif Ahmed or in default whereof to further undergo RI for six months. However, the learned High Court vide impugned judgment while acquitting Hameed respondent, converted the death sentence awarded to the respondent Tufail under Section 302(b), P.P.C. Into 25 years RI under Section 302(c), P.P.C. The direction for payment of compensation orimprisonment in default whereof is maintained. He was, however, acquitted of the charge under Section 324, P.P.C.
5. We have heard learned counsel for the respondents as also learned Additional Prosecutor General at length and have perused the entire record.
6. Regarding the same occurrence, there are two different versions. First one is the prosecution version. Second, the respondent-accused Tufail has also given his own version. According to him, his father was running a karyana shop in the vicinity and the deceased had purchased various items from his shop on loan and was reluctant in the payment of that loan; that his father used to demand the same from the deceased; that on the day of occurrence his father demanded the same from the deceased, which was taken ill by the deceased and he attacked at his father and abused him; that on hearing the alarm he came out of his house and reached at the shop; that he tried to save his father from the clutches of the deceased whereupon the deceased left his father and grappled with him and called his relatives in a loud voice asking them to bring arms and ammunition; that at that time he picked up a churri lying in the shop in order to save himself and his father and in the struggle the deceased was injured and he ran towards the house of the complainant and fell down on the ground. According to the accused none of the PWs were present at the spot. The respondent-accused Tufail in his statement has clearly admitted the occurrence though with a different angle. On the other hand, to support the prosecution version there are two eyewitnesses, one of them is an injured witness. However, the story of the accused has not been supported by any witness. Even otherwise, the same was not the version of the accused before the Police after his arrest, and it seems he has concocted a story later on with a view to save his skin.
So far as the testimony of the eyewitnesses i.e. Khawaja Farooq Ahmed PW-1 and Hanif Ahmed PW- 2 is concerned, we have found that the learned High Court has not rightly disbelieved the same. We have perused their statements with care and caution and have found that they remained consistent on all material particulars of the case i.e. Date, time, place and the manner in which the occurrence took place. The discrepancies pointed out by the learned High Court in the prosecution case are minor in nature and cannot absolve the respondent from his liability. The occurrence took place in front of the house of the complainant PW-2, whereas PW-2 was the resident of another lane within the same mohallah, as such they are natural witnesses. PW-2 Hanif Ahmed has also received injury on his hand, which injury is proof of his presence at the spot. The learned High Court took much stress while observing that the deceased was medically examined at 8.15 PM whereas the injured Muhammad Hanif was examined at 8.20 PM and there was a difference of seven numbers in their CODs, which shows that PW-2 had been later on made an injured witness and the possibility cannot be ruled out that the injury is self suffered. Such a finding is not tenable in the facts and circumstances of this case, as it has specifically been stated by Dr. Waseem Sarwar PW- 8 that both the deceased and the injured were brought by the complainant and he firstly, examined the deceased, who was then in injured condition and then he examined PW-2 Hanif Ahmed. This statement supports the version of the complainant that he "removed Lauf Ahmed injured and Hanif Ahmed injured to Nishtar Hospital Multan. Doctor medically examined them and admitted Kh. Latif Ahmed in the hospital." So tar asthe issue that there was a difference of seven numbers in the CODs of both the injured is concerned, the Same can hardly make a doubt. Dr. Waseem Sarwar PW-8 in his statement has specifically stated that "the fact of the matter is that both the persons had arrived together. Nevertheless, as per practice the one who is more serious is to be examined first, and I had adopted this procedure in this case." The statements of PW-8 Dr. Waseem and PW-1 complainant fully support each other. We have not been able to find out any reason as to why the PWs would have falsely implicated the respondents-accused in the commission of offence and let off real culprit. It is by now a well settled principle of law that testimony of a witness cannot be discarded merely on the basis of the fact that he is a close relative of the deceased. So far as the issue that the FIR was registered with the delay is concerned, the same is of no help to the respondent-accused. The complainant has explained as to why the delay occurred in lodging the FIR. According to him, he took the deceased in injured condition to hospital. The complainant at that time had acted in a natural manner as the prime consideration at that time for the complainant party was to make efforts to save the life of the deceased.
However, the life of the deceased could not be saved and he succumbed to the injuries in the hospital at about 4.00/4.30 AM whereas the case was got registered at about 6.30 AM. The respondent-accused Tufail was arrested on 18.9.2001 and after his arrest he led to the recovery of the weapon of offence i.e. Dagger from the western room of his house on 20.9.2001, which was taken into possession vide recovery memo Ex.PC. The medical evidence also fully supports the ocular account. According to the doctor who medically examined the deceased in injured condition, he had received as many as two injuries and both were inflicted by sharp edged weapon. The said injuries according to post-mortem report proved fatal and wore the cause of death. The time of injuries and the death was given as 9/10 hours, which fact also proves the ocular account.
7. So far as the statement of respondent Tufail under Section 342, Cr.P.C. Is concerned, in Azhar labal v. State (2013 S'CMR 383) this Court has specifically held that statement of an accused recorded under Section 342 Cr.P.C. Has to be accepted or rejected in its entirety and where prosecution's evidence is found to be reliable and the exculpatory part of such statement has been established to be false and excluded from consideration, then the inculpatory part of such statement might be read in support of prosecution's evidence. Respondent-accused Tufail has clearly admitted the occurrence and could not produce any witness in support of his version that he acted in self-defence. Keeping in view the law laid down by this Court that inculpatory part of a statement can be read in support of the prosecution's case, it can safely be concluded that it was the respondent Tufail who actively participated in the occurrence and committed the murder of Latif Ahmed deceased and, thereafter, he concocted a false story to save his skin.
8. In the afore-referred circumstances, the learned High Court has erred in law while.Converting the offence from section 302(b), P.P.C. To section 302(c), P.P.C. Consequently, the respondent-Tufail is convicted under section 302(b), P.P.C. Instead of section 302(c), P.P.C. However, so far as quantum of punishment is concerned, we are of the view that the motive set up by the prosecution had remained far from being established through any independent evidence and even otherwise the same had already stood patched up two years prior to occurrence. In this view of the matter, the respondent-Tufail is sentenced to life imprisonment. However, the amount of compensation and the imprisonment in default whereof is maintained. So far as the conviction under section 324, P.P.C. Is concerned, the same has not been proved in the facts and circumstances of this case.
Benefit of Section 382-B, Cr.P.C. Is also extended to the respondent Tufail.
9. However, so far as the case of respondent-accused Hameed son of Khursheed Aslam is concerned, we have found that only the injury on the hand of the injured PW-2 was attributed to him. He was only convicted and sentenced to life imprisonment by the learned Trial Court in furtherance of common intention to kill. However, we are not convinced with it, as if he would have wanted to kill the deceased, he would have caused any injury to him. In these circumstances, we convict him under Section 324, P.P.C. And sentence him to the period he has already undergone.
However, so far as the third accused is concerned, the judgment of acquittal to his extent passed by the learned Trial Court is neither arbitrary nor fanciful and the same is unexceptionable.
10. For what has been discussed above, this appeal is partly allowed and the sentences of the respondents-accused Tufail and Hameed are modified to the extent as mentioned above in the preceding paragraphs.
CRIMINAL PETITION NO. 500-L/2008 11.. For reasons mentioned in the connected Criminal Appeal No.150-L/2009, this petition is dismissed being without any merit and leave is refused.
CRIMINAL M.A. NO. 435-L/2014
12. Since, Criminal Petition No. 500-L/2008 has been dismissed, this application for appointment of a counsel at state expense to defend applicant-accused Muhammad Tufail has become infructuous and is disposed of accordingly.