MISS AALIA NEELUM, J.---Muhammad Javed son of Ghulam Muhammad, caste Jatt, resident of Chak No.164/G.B Toba Tek Singh (appellant in Crl. Appeal No.1714 of 2010) and Muhammad Saleem son of Ghulam Muhammad, caste Jatt, resident of Chak No.164/G.B (Sheikhan) Tehsil Gojra, District Toba Tek Singh, (appellant in Crl. Appeal No.821 of 2010) along with Ghulam Muhammad son of Hassan Bukhsh (since acquitted) and Muhammad Boota son of Ali Bukhsh (since acquitted) were tried in case FIR No.571/2008 dated 14.10.2008, offence under sections 302, 324, 109, P.P.C., Police Station Saddar Gojra District T.T. Singh by Rana Riaz Ahmed Khan, Additional Sessions Judge, Toba Tek Singh. The learned trial court seized with the matter in terms of judgment dated 22.03.2010 convicted the appellants as under:- Sr.
No.Appellant Conviction and Sentence.
1. Muhammad JavedConvicted under section 302(b), P.P.C. read with section 34, P.P.C. and sentenced to death along with compensation of Rs.1,00,000/- (One Lac) to the legal heirs of deceased under section 544-A, Cr.P.C. and in default thereof, further undergo six months' SI.
2. Muhammad SaleemConvicted under section 302(b), P.P.C. read with section 34, P.P.C. and sentenced to imprisonment for life along with compensation of Rs.100000/-to the legal heirs of deceased and in default thereof, further undergo six months' S.I.
2. Feeling aggrieved by the judgment of the learned trial court, Muhammad Javed and Muhammad Saleem have assailed their sentence and conviction through filing Crl. Appeal No.171-J of 2010 and Crl. Appeal No.821 of 2010 respectively. The learned trial court forwarded Murder Reference No.205/2010 for confirmation of death sentence inflicted upon the convict, namely, Muhammad Javed. Likewise, Sikandar Ali, complainant filed Criminal Revision No.518 of 2010 seeking enhancement of sentence to the extent of compensation amount awarded to Muhammad Javed amounting to Rs.100,000/- as well as conversion of life imprisonment into death qua respondent No.2, namely, Muhammad Saleem vide impugned judgment. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through single judgment.
3. Precisely the facts leading to the conclusion of all the matters are that in the FIR lodged on the complaint (Exh.PJ) of Sikandar Ali (PW-9) is that the complainant is resident of Chak No.164/G.B Sheikhan and is agriculturist by profession. On 14.10.2008 at 09.00 a.m. The complainant along with Muhammad Usman (deceased) and Muhammad Mohsin Javed (nephew of the complainant) were loading dung on their bullock cart near the watt of their land i.e. Killa No.1, Square No.35. In the meanwhile accused persons Muhammad Saleem while armed with pump action .12 bore and Muhammad Javed while armed with repeater .12 bore along with Ghulam Muhammad (since acquitted) while armed with hatchet came there. Accused Ghulam Muhammad (since acquitted) raised lalkara that no body should be spared and they be taught lesson of demolishing the watt.
Muhammad Saleem made a fire with his pump action .12 bore on the body of Muhammad Usman which hit on the front of his neck and chest. Muhammad Javed fired with repeater .12 bore which hit on the body of Muhammad Usman which hit at his back. Accused persons also made straight firing upon the complainant and his nephew-Mohsin Javed but they saved their lives by hiding themselves in sugarcane crop. In the meanwhile Haji Maqbool Ahmed and Muhammad Naeem came at the spot on their motorcycle and witnessed the occurrence. They (complainant and others) took care of Muhammad Usman (deceased) who succumbed to the injuries on the spot.
The motive behind the occurrence was that there was dispute between the parties regarding demarcation of the land and irrigation by water-course. A Punchait was held in the village and the demarcation was to be conducted in presence of Punchait. Tariq Pervaiz and Muhammad Habib also came at the spot and they told that they had gone to the house of Muhammad Boota accused, last night who (Muhammad Boota) said to the accused Muhammad Saleem and Muhammad Javed in their presence that why they were convening Punchait, they have weapons to kill them, he would manage. Thus the accused persons committed the murder of Muhammad Usman (deceased) on the abetment of Muhammad Boota accused.
4. Thereafter the complainant-Sikandar Ali (PW-9) proceeded to the Police Station to report the matter and at Adda Bashir Abad Moongi Road, he met with Muhammad Sarwar, S.I. (PW-12), who was present there along with other police officials. He recorded the statement (Exh.PJ) of the complainant which was read over to him and he signed it in token of its correctness. PW-12 sent the complaint to Police Station for registration of formal FIR (Exh.PJ/1) through Muhammad Ashraf 321/C. Thereafter, Muhammad Sarwar, S.I. (PW-12) proceeded to the place of occurrence, inspected the dead body, prepared application for post mortem examination and injury statement (Exh.PC).
The Investigating Officer, also prepared the inquest report (Ex.PD) and sent the dead body under escort of Liaquat Ali, constable (PW-7) for autopsy. The Investigating Officer secured blood stained earth from the place of occurrence and took it into possession vide recovery memo (Exh.PK).
Besides he collected empties of .12 bore (2 in number) from the spot vide recovery memo (Exh.PM).
Investigating Officer also prepared site plan without scale as (Exh.PN) and recorded the statements of prosecution witnesses. After postmortem examination, last worn clothes of the deceased, Muhammad Usman were produced before the Investigating Officer, which he took into possession Shirt (P-1), Bunyan (P-2), Pajama (P-3) all blood stained vide recovery memo (Exh.PE). On 15.10.2008 he summoned Patwari, the draftsman and the PWs at the spot who drafted site plan to scale Ex.PA and carbon copy Ex.PA/1. The Investigating Officer arrested the accused Muhammad Saleem, Javed and Ghulam Muhammad accused on 04.12.2008. Accused Muhammad Saleem, while in police custody, after making disclosure, got recovered pump action .12 bore from his residential house which was taken into possession vide memo (Exh.PF). On the same day, Muhammad Javed, accused got recovered pump action .12 bore shot gun (P-5) from his residential house after making disclosure which was taken into possession vide memo (Exh.PG) and also prepared site plan of place of recovery (Exh.PF/1). On the same day the Investigating Officer also took into possession Motorcycle No.6064-TSF on the pointation of Muhammad Javed accused from his residential house vide memo Exh.PH. The Investigating Officer during investigation exonerated Muhammad Boota accused in the case.
5. Having found the appellants guilty, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the court of Sessions through Magistrate as provided under section 190(2) of Cr.P.C.
6. After submission of challan, the accused were formally charge sheeted by the learned trial court in terms of order dated 11.03.2009 to which they pleaded not guilty and claimed trial. The prosecution in support of the version, produced twelve (12) witnesses. Ocular account of occurrence in this case has come out from the statements of the complainant-Sikandar Ali (PW- 9), Mohsin Javed (PW-10) and Maqbool Hussain (PW-11). Muhammad Sarwar, S.I. (PW-12) is the Investigating Officer of the case. Dr. Masood Ahmed (PW-5) had conducted the postmortem examination upon the dead body of Muhammad Usman deceased on 14.10.2008 and found following injuries on his person:- INJURIES
(I) Multiple fire arm wounds of entry measuring each 0.3 x 0.3 cm covering area 32 x 29 cm including face, front and both sides of neck and upper part of front of chest. All were muscle deep.
On dissection margins were found inverted. Four small metallic particles were recovered.
(2) Multiple fire arm wounds of entry covering an area of 12 x 9 cm each measuring 1 cm x 1 cm on back of both right and left chest, mostly on middle part. Margins were inverted, entries were (9) in number. On dissection under line muscles, ribs and vertebra were fractured. Heart and both lungs were badly injured, about 2 litres blood was present in chest cavity. Six large metallic foreign bodies were recovered.
OPINION.
According to his opinion, the cause of death was haemorrhage and shock caused by injury No.2 individually which was ante mortem and was inflicted by fire arm which was sufficient to cause death in ordinary course of nature The probable time between injuries and death was immediate and between death and postmortem was 6 to 12 hours. Exh.PB is the carbon copy of postmortem report whereas Exh.PC is injury statement and Exh.PD is inquest report.
7. The learned DDPP vide his separate statement recorded on different dates of hearing, gave up PWs Muhammad Ahsan and Muhammad Habib on 08.9.2009, Abdul Ghafoor on 27.01.2010 and Muhammad Naeem on 10.02.2010 as being unnecessary. However, after tendering the report of Chemical Examiner (Exh.PQ), report of Serologist (Exh.PR) and Report of Forensic Science Laboratory (Exh.PS), the learned DDPP vide statement recorded on 10.02.2010, closed the prosecution evidence.
8. The appellants were also examined under section 342, Cr.P.C., wherein neither they opted to appear as their own witnesses in disproof of the allegations levelled against them nor to produce defence evidence. In response to the question why this case against them and why the PWs deposed against them, Muhammad Javed appellant made the following deposition:- "The PWs are related inter se and are inimical to me, my brother Saleem, my father and my cousin Muhammad Boota my co-accused. The prosecution story is false and concocted to me." Similarly, Muhammad Saleem appellant replied this particular question in the following terms:- "The PWs are related inter se and are inimical to me, my brother Javed, my father and my cousin Muhammad Boota my co-accused. The prosecution story is false and concocted to me."
9. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on the record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellants in the above stated terms.
10. The occurrence was a broad daylight occurrence. The FIR was A promptly lodged. We have observed that the occurrence took place at 9.a.m. On 14.10.2008 in which Muhammad Usman had received firearm injuries at the hands of the appellants and died at the spot. The complainant Sakindar Ali (PW9) reported the incident to the police at 09:40 a.m. On the same day at Adda Bashir Abad. The complainantSikandar All deposed during cross-examination that, "the distance between place of occurrence and Adda Bashir Abad might be 5-1/2/6 kilometer. I and Azher Hussain had gone from the place of occurrence to Adda Bashir Abad where the Investigating Officer met us, by car. We started from the place of occurrence about 20 minutes after the occurrence and we consumed about 15 minutes to travel from place of occurrence to Adda Bashir Abad. It consumed about 10/15 minutes in recording my statement (Exh.PJ) by the Investigating Officer. We were on our car and the police was on service vehicle while coming back from Adda Bashir Abad to the place of occurrence." From the deposition, it reveals that the complaint was made by Sikandar Ali (PW-9) at 09:40 at the distance of 5-1/2 to 6 miles from the place of occurrence and was, therefore, lodged with great promptitude and entire version of the occurrence finds mention in that report. That apart, the ocular account stated by the eye- witnesses have given a vivid description of the occurrence. Our independent appraisal of the evidence of Sikandar Ali (PW-9), Mohsin Javed (PW-10), the father and cousin of the deceased and Maqbool Hussain (PW-11) (independent witness) shows. That they are consistent in their versions not only about the assailants but also about the manner of the assault, as has been mentioned in crime report, as also has been mentioned in the earlier part of the judgment. Despite the lengthy cross-examination, nothing was brought out in the cross-examination of the eye-witnesses which could affect the veracity of their testimony. The motive part of the prosecution story has also been proved by the testimony of Maqbool Hussain (PW-11) who deposed and "Volunteered that the dispute between Ghulam Muhammad accused and the complainant party is of Killa Nos.1 and 2 of Sikandar Ali, complainant and 9 and 10 of accused party wherein in between there is a water- course which is disputed. It is incorrect that only volunteered portion of statement is false." It is also noted that through trend of cross-examination upon Maqbool Hussain (PW-11) presence of the appellants; presence of the witness (Maqbool Hussain) at the spot for the purpose of Punchiat to resolve the differences with Sikandar Ali regarding Watt by measurement; time of occurrence and the role played by both appellants were admitted by the defence. The ocular version of these witnesses was straight forward and natural. Moreover, the appellants/accused have been attributed specific role of firing with firearm with no chance of substitution. In ordinary course of things, it is not possible for the father (the complainant) to screen the actual offender and implicate the appellants falsely. The appellants have been attributed specific role of causing one injury each to the deceased. Their testimony also receives ample corroboration from the medical evidence and the recoveries of weapons of offence.
11. As far as medical evidence is concerned, the post-mortem report (Exh.PB) shows that two multiple firearm wounds of entry each 0.3 x 0.3 cm covering area of 32 x 29 cm including face, front and both sides of neck and upper part of front of chest and at the back of right and left chest mostly on middle part covering an area of 12 x 9 cm each, is in the line with ocular account to the effect that deceased was hit with two (2) firearm shots at the hands of the appellants. Same is also supported by the recoveries of crime empties of .12 bore recovered from the place of spot, where the appellants were shown to be present at the time of occurrence in the site plan. Dr. Masood Ahmed (PW-5) opined that the injury No.1 could not cause death individually in ordinary course of nature whereas injury No.2 individually was sufficient in ordinary course of nature to cause death. In the FIR (Ex.PJ) lodged soon after the occurrence Sikandar Ali (PW-9) had stated that Muhammad Saleem appellant had fired straight at Muhammad Usman-deceased which hit on the person of Usman at his neck and chest and the same injury is available in postmortem report as injury No.1, whereas Muhammad Javed appellant had fired at Muhammad Usman-deceased which hit at his person at the back of the deceased and the same is available in postmortem report as injury No.2.
The complainant as well as eyewitnesses categorically attributed the firearm shots to the appellants and did not attribute any injury to the acquitted accused, namely, Ghulam Muhammad and Muhammad Boota. That apart, the time stated by the witnesses as to when the deceased was taken to mortuary for postmortem examination was only an approximate time as it was not suggested to prosecution witnesses that dead body of the deceased was shifted actually on such and such time. Too much play on such factor goes against realism and it is not enough to discredit the reliable testimony of the prosecution witnesses. Learned counsel for the appellants submitted that Dr. Masood Ahmad (PW5) also handed over four small and 6 larger foreign body metallic pieces to Liaquat Ali 900/C (PW-7). In the examination-in-chief, Liaquat Ali (PW-7) also admitted while appearing in the witness box that "the medical officer after the post mortem examination handed over to him well stitched dead body, last worn clothes of the deceased, police papers, copy of post mortem report, a sealed vial containing a piece of plastic and containing four small foreign body metallic pieces under sealed cover" and the learned counsel for the appellant cannot get benefit of recovery of any foreign body metallic recovered from the dead body as same was not produced in the court.
12. Suffice it to say, this would not improve the case of the appellants. However, this circumstance can be taken into consideration while considering the question of sentence to be awarded to the appellants.
13.During the spot inspection, two crime empties of 12 bore were taken into possession vide memo Exh.PC and Exh.PH on 14.10.2008 and the same was sent to the office of Forensic Science Laboratory on 25.10.2008. During the investigation, appellants were arrested on 04.12.2008 who led to the recovery of crime weapons on 15.12.2008 which were taken into possession vide memo.
Muhammad Saleemappellant led to recovery of .12 bore pump action short gun (P.4) which was taken into possession vide memo Ex.PF and Muhammad Javed appellant also led to recovery of .12 bore pump action shot gun (P.5) which was taken into possession vide memo Ex.PG. Thereafter parcel of guns were also sent to the office of Forensic Science Laboratory on 26.12.2008. The report of Forensic Science Laboratory Exh.PS reveals that empties recovered from the spot were fired from the guns which were recovered at the pointing of the appellants and it lends sufficient corroboration to the ocular account.
14. In our opinion, the prosecution has succeeded to prove beyond any manner of doubt that Muhammad Javed-appellant was responsible for the murder of Muhammad Usman and Muhammad Saleem for causing gun shot injury on the vital part of the body of said Muhammad Usman. The guilt, therefore, has been brought home to appellants. In this view of the matter, the sentence awarded to Muhammad Saleem appellant is maintained, therefore, this Court is not persuaded to interfere with the sentence awarded by the learned trial court unless the same appears to be too harsh.
15. The matter relates to Muhammad Javed-appellant has come up before this Court under the provisions of Criminal Procedure Code for the confirmation of the death sentence. It has been the consistent view of the Apex Court of the country that the question of quantum of sentence requires utmost care and caution on the part of the courts as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence. Reliance is made on the ratio decidendi of August Supreme Court of Pakistan in the case of "Mir Muhammad alias Miro v. The State" (2009 SCM R 1188) held that:- "It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence required utmost care and caution on the parts of the courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
16. As far as the quantum of sentence in this case is concerned, the same is of pivotal importance to the extent of Muhammad Javed- appellant, which requires reappraisal of evidence while scrutinizing the prosecution evidence, we have observed that during the course of trial, the learned trial court had acquitted co-accused-Hassan Bukhsh and Muhammad Boota on the same set of evidence and the prosecution never assailed their acquittal before this Court; meaning thereby that the complainant was satisfied with the conclusion arrived at by the learned trial court, which create doubt in the authenticity of the prosecution version to some extent persuading this Court to believe that the case of the appellant-Muhammad Javed falls within the ambit of mitigation. In the case of "Mir Muhammad @ Miro v. The State" (2009 SCM R 1188) wherein it was held as under:- "7. We have given anxious consideration to the arguments advanced before us, examined the case-law and scrutinized the evidence as well as the impugned judgment. It is an admitted position that the ocular evidence qua co-accused Khair Muhammad and La! Muhammad was not believed by the Appellate Court by observing that the evidence was exaggerated and required corroboration which was lacking. It was further held that the motive as set up by the prosecution remained unproved. The High Court further observed, and so rightly that the evidence with regard to recovery of weapons was not admissible."
"9 It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence.
In the case of Mst. Bevi v. Ghulam Shabbir and another 1980 SCMR 859, it was ruled by this Court "that the principle underlying the concept of benefit of doubt can in addition to the consideration of question of guilt or otherwise, be pressed also in matter of sentence."
"10 For the above reasons, we are of the considered view that in the given situation, there are mitigating circumstances for awarding lesser penalty. Resultantly while dismissing the appeal and maintaining the conviction, we modify the sentence of death awarded to the appellant by awarding him imprisonment for life. Rest of the convictions and sentences awarded to the appellant shall, however, remain unaltered."
Moreover, August Supreme Court of Pakistan in the case of "Israr Ali v. The State" (2007 SCMR 525) held that:- '"........Sentence, quantum of---Principle---Question of sentence demanded utmost care on the part of Court dealing with life and liberties of people---Accused persons are also entitled to extenuating benefit of doubt on the question of sentence."
It is also held by the Hon'ble Supreme Court of Pakistan in the case of Dilawar Hussain v. The State (2013 SCM R 1582) that:- "---It has neither been the mandate of law nor the dictates of this Court as to what quantum of mitigation is required for awarding imprisonment for life rather even an iota towards the mitigation is sufficient to justify the lesser sentence. According to our estimation even a single stance providing mitigation or extenuating circumstance would be sufficient to award lesser punishment as an abundant caution. In such circumstances, if the court is satisfied that there are certain reasons due to which death sentence is not warranted, the court has no other option but to impose second sentence of imprisonment for life while extending benefit of the extenuating circumstances to the convict in a just and fair manner.---"
17. When facts of the case are scrutinized on the touchstone of dictum of law referred to above, we have arrived at the conclusion that to meet the ends of justice for safe administration of criminal justice it would be justified if the sentence of death awarded to Muhammad Javedappellant is converted into imprisonment for life.
18. In sequel to above, Criminal Appeal No.171-J of 2010 filed by Muhammad Javed son of Ghulam Muhammad, appellant and Criminal Appeal No.821 of 2010 filed by Muhammad Saleem son of Ghulam Muhammad are dismissed but the sentence of death awarded to Muhammad Javed- appellant under section 302(b), P.P.C. is altered to imprisonment for life and benefit of section 382-B, Cr.P.C. Is also extended in favour of the appellant-Muhammad Javed. However, his sentence of fine and the effect in case of default in the same, would remain as directed by the learned trial court.
19. Murder Reference No.205 of 2010 forwarded by the learned trial court for confirmation of sentence of death inflicted upon the convict Muhammad Javed is not confirmed and is answered in the NEGATIVE.
20. So far as Criminal Revision No.5I8 of 2010 seeking enhancement in sentence of the respondents inflicted by the learned trial court is concerned, for the afore-stated reasons, the same has no weight, which is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.