Aalia Neelum, J.- Tanvir Ahmad son of Lal Khan, Caste Gujjar, resident of Dhola, Tehsil Kharian, District, Gujrat, the appellant along with Muhammad Khan (since acquitted), Safdar Hussain alias Zaman (since acquitted), Sagheer Hussain alias Lattu, (since acquitted) and Irfan (since P.O) having involved in private complaint (complaint case No.24 of 2011), under Sections 302, 324, 148, 149 P.P.C, Police Station Saddar, Kharian and were tried by Malik Ali Zulqarnain Awan, Additional Sessions Judge, Kharian. The learned trial court seized with the matter in terms of judgment dated 15.12.2011 convicted Tanvir Ahmad son of Lal Khan (the appellant) under Section 302(b) P.P.C. and sentenced to death with the direction to pay Rs.3,00,000/- as compensation to the legal heirs of deceased, Ghulam Abbas and in default thereof, to further undergo six months Simple Imprisonment.
2. Feeling aggrieved by the judgment of the learned trial court, Tanvir Ahmad, appellant has assailed his conviction by filing Criminal Appeal No.2094 of 2011. The learned trial Court forwarded Murder Reference No.19-2012 for the confirmation of death sentence inflicted upon the convict, Tanvir Ahmad (the appellant).
3. Tersely the facts as narrated in the private complaint (Exh.PD) filed by Adalat Khan (PW- 6)/the complainant are that on 09.10.2005 at about 05:00 p.m. (evening), he (complainant) along with Muhammad Aslam son of Niaz Ali and Ehsan son of Sardar Khan, resident of Mauza Dhola, Tehsil Kharian, District Gujrat were present in the house of Ghulam Abbas (since died), brother of the complainant and in the meantime, Tanvir Ahmad (the appellant) arrived there and told that he was accompanying some guests who were present outside in the car and they had to visit the village Jaura along with Ghulam Abbas (since died) in connection with some work, whereupon Ghulam Abbas (since died) came out of his house and when he (Ghulam Abbas since died) reached near the car, the accused, Irfan and Tanvir Ahmad brought out 30-bore pistols from their folds and made straight fires at Ghulam Abbas (since died). The accused, Tanvir made first shot which landed near the right eye of Ghulam Abbas (since died) whereas the accused, Irfan made second shot which passed over the head of Ghulam Abbas (since died). Thereafter the accused sitting in the car namely Muhammad Khan son of Bahadar Khan, Caste Gujjar, resident of Dhola, Safdar Hussain alias Zaman son of Mehndi Khan, Caste Gujjar, resident of Ali Chak and Saghir Hussain alias Lattu came out of the car and made straight firing on the complainant party, who saved their lives by entering into the house whereas the accused persons decamped from the spot while sitting in the car and Ghulam Abbas (since died) succumbed to the injuries at the spot. The motive behind the occurrence was a conflict over local bodies election.
4. After the alleged occurrence, the complainant (PW-6) rushed towards the police station for reporting the occurrence and he (PW-6) met with Muhammad Aslam, S.I. (PW-9), who along with Aziz Ahmad 640/C, Muhammad Arshad 243/C and Muhammad Arshad 758/C were on patrolling at Bernali and the complainant (PW-6) produced complaint (Ex.PC) to him (PW-9) whereas (PW-9) after completion of police karwai, sent the complaint (Ex.PC) to the police station through Muhammad Arshad 243/C for registration of formal F.I.R.
5. On receipt of the complaint (Ex.PC), formal F.I.R. (Ex.PC/1) was chalked out by Ehsan Ullah, A.S.I. (PW-8). Thereafter the Investigating Officer (PW-9) reached at the spot and prepared inquest report Ex.PE, injury statement Ex.PF, drafted an application for postmortem examination of the deceased as Ex.PG and handed over the dead body of the deceased, Ghulam Abbas along with other police papers to Aziz Ahmad 640/C (PW-11), who escorted the dead body to the mortuary of Tehsil Headquarter Hospital, Kharian for postmortem examination. Thereafter the Investigating Officer (PW-9) prepared rough site plan of the place of occurrence Ex.PH, took into possession blood-stained earth vide recovery memo Ex.PA and recorded the statements of prosecution witnesses under Section 161 of Cr.P.C. Aziz Ahmad 640/C (PW-11) handed over last worn clothes of the deceased to the Investigating Officer (PW-9), who took the same into possession vide recovery memo Ex.PJ. On 12.10.2005, Akhter Naqash, Draftsman inspected the place of occurrence and prepared scaled site plan Ex.PK and Ex.PK/1. On 29.10.2005, he (PW-9) submitted an application Ex.PL for obtaining the non-bailable warrants of arrest of accused Irfan and Tanvir Ahmad whereas proclamation was obtained by him (PW-9) through an application Ex.PM. Thereafter the investigation of this case was entrusted to Zafar Iqbal, S.I. (CW-1), who arrested the accused, Tanvir Ahmad on 27.12.2010.
6. Having found the appellant guilty, the Investigating Officer prepared report under section 173 Cr.P.C and sent the same to the court of Sessions enrouted through the learned Illaqa Magistrate as provided under Section 190 (2) Cr.P.C. Being dis-satisfied with the result of investigation in case F.I.R. No.551-2005, dated 09.10.2005, registered under Sections 302, 324, 148, 149 P.P.C, at Police Station, Sadar Kharian, as the Investigating Officer (CW-1) declared the accused- appellant, Tanvir Ahmad as innocent, the complainant filed a private complaint (Exh.PD) before the learned Illaqa Magistrate on 12.03.2011 with delay of approximately five years, five months and three days whereas the F.I.R. was lodged on the day of occurrence i.e. 09.10.2005. The learned Illaqa Magistrate sent the same to the worthy Sessions Judge, Gujrat for its entrustment to the court of competent jurisdiction. The learned trial court after hearing preliminary arguments, summoned all the accused persons to face their trial.
7. After the appearance of accused persons, they were formally charge sheeted by the learned trial court on 20.08.2011 whereas in view of statement made by the complainant (PW-6) on 27.04.2011, that in the private complaint, he (complainant) wants to proceed against the accused- Tanvir Ahmad only whereupon, the learned trial court charge sheeted the accused, Tanvir Ahmad separately on 10.05.2011 to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as eleven prosecution witnesses whereas three witnesses were examined as CWs. Adalat Khan (PW-6) is the complainant of the case, whereas his testimony was supplemented by Muhammad Ehsan (PW-7). Muhammad Aslam, S.I. (PW-9) is investigating Officer whereas formal F.I.R. (Ex.PC/1) was chalked out by Ehsan Ullah, A.S.I. (PW-8). Dr. Atif Mansoor conducted the postmortem examination on the dead body of deceased, Ghulam Abbas but he could not appear in the witness box as he had proceeded abroad whereas Arshad Iqbal, Dispenser (PW-3) being well conversant, verified the hand-writing of Dr.Atif Mansoor.
8. Dr. Atif Mansoor had conducted the postmortem examination upon dead body of the deceased, Ghulam Abbas on 09.10.2005 at 11.40 p.m. and found the following injuries:- INJURIES
1. Firearm entry wound 1/2 cm x 1 cm at under eye lash. Edges irregular inverted, blackening present.
2. Firearm exit wound mid of lower occipital region 3 x 1 cm, edges irregular, everted. Brain matter damaged, occipital bone fractured, skull cavity full of blood.
OPINION.
According to doctor's opinion, death had occurred due to shock and brain hemorrhage due to injury No.1 caused by firearm. Death had occurred in ordinary course of nature.
Probable time between injuries and death was immediate. Time between death and post mortem was 6 to 8 hours.
Rest of the prosecution witnesses are formal in nature.
9. On 15.10.2011, Adalat Khan, the complainant (PW-6) gave-up PW Fateh Sher being dead whereas on 06.09.2011 & 14.11.2011, PWs Muhammad Arshad 758/C and Muhammad Aslam were given up by the learned counsel for the complainant. On 29.11.2011, learned Deputy District Public Prosecutor closed the prosecution evidence after tendering the reports of Chemical Examiner and Serologist as Ex.PN & Ex.PQ. At the request of learned Deputy District Public Prosecutor, the learned trial Court summoned the remaining PWs as CWs. Therefore, statements of three Court witnesses, namely, Zafar Iqbal, S.I. (CW-1), Syed Zawar Hussain (CW-2) and Muhammad Ashraf, S.I.(CW-3) were also recorded by the learned trial Court.
10. The appellant was also examined under Section 342 Cr.P.C. Neither the appellant opted to appear in person as his own witness under Section 342 (2) Cr.P.C nor he produced any defence witness. While replying to a question, why this case and why the PWs have deposed against him, the appellant-Tanvir Ahmad made the following deposition:- "My relatives Muzammil etc were resident of my village. Prior to this occurrence, ex-MNA of our constituency namely Manzoor Shah was murdered and the case was registered against said Muzammil etc. Due to the said case, Muzammil etc had shifted their residence from the village and their property was being looked-after by me. The complainant party belongs to the party of Manzoor Shah. Ghulam Abbas deceased was murdered by some unknown person and after his murder under the influence of relatives of Manzoor Shah, the complainant party got registered this case against me to please their political leadership and also to grab the property of Muzammil etc which was under my supervision and control. The PWs are related inter-se, therefore, they had deposed falsely against him on the asking of complainant."
11. The learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction to the extent of the appellant, Tanvir Ahmad in the afore stated terms.
12. We have heard the arguments advanced by the learned counsel for the parties. We have also gone through the record with able assistance of learned counsel for the appellant and learned counsel for the complainant as well as Deputy Prosecutor General.
13. That the occurrence in this case took place at 05:00 p.m. on 09.10.2005 and the incident was reported to the police at 06:30 p.m., on the same day and F.I.R was lodged at 07:15 p.m. As a matter of fact, such F.I.R had been lodged at a distance of 10-miles from the place of occurrence. It can not be contended that there had been any considerable delay. Moreover, even assuming that there was some delay in lodging F.I.R, such delay certainly does not become fatal for the prosecution case in view of preponderance of evidence adduced in the case. In the instant case, the witness was not questioned about the delay, if any, in recording of F.I.R. However, during cross- examination, the complainant (PW-6) deposed that the police station is situated on the G. T. Road, in Kharian City. He (PW-6) started for the police station on motorcycle and on the same motorcycle, he (PW-6) reached in Barnali where police met him in chowk of village. He (PW-6) further deposed that he had not made deliberation before registration of F.I.R. Muhammad Ehsan (PW-7) also deposed during cross-examination that Adalat Khan did not consult them before joining the investigation. The complainant-Adalat Khan (PW-6), brother of the deceased-Ghulam Abbas, in the F.I.R (Ex.PC/1) and private complaint (Ex.PD) had attributed a specific role for causing firearm injury on the body of the deceased-Ghulam Abbas below his right eye with the pistol 30- bore to the appellant-Tanvir Ahmad. It was also mentioned in the F.I.R (Ex.PC/1) and the private complaint (Ex.PD) that the accused-Irfan (still P.O) also fired with his pistol 30-bore at Ghulam Abbas which passed over his head. The story of F.I.R (Ex.PC/1) and private complaint (Ex.PD) was reiterated by Adalat Khan (PW-6) with the improvement that Sagheer Ahmad alias Lattu was also named and role of in-effective firing was attributed to him. This improvement does not help the case of the accused-the appellant.
14. We have carefully examined the evidence of Adalat Khan (PW-6) and Muhammad Ehsan (PW-7) eye-witnesses of the occurrence. They have given a vivid account of the entire sequence of events and fully proved the prosecution case. The defence has not been able to make any dent in their deposition during cross-examination. The complainant (PW-6) remained consistent and stated that Tanvir-accused and Ghulam Abbas reached near the car; they were at a distance of about 40 feet; Tanvir-accused brought out his pistol from his pocket and fired at Ghulam Abbas which hit him (Ghulam Abbas, deceased) below his right eye. The complainant (PW-6) has also been categorical in stating during cross-examination that, he as well as Ehsan and Aslam used to reside in village Abadi; he was already present at the Dera of Ghulam Abbas as his own Dera was also situated there; we were sitting in the Dera of Ghulam Abbas about half an hour prior to arrival of Tanvir accused; the car was parked at a distance of 40/45 feet from the main gate; soon after getting out of Ghulam Abbas, the occurrence took place; the accused were present on the southern side of Ghulam Abbas at a distance of about six feet; the car was parked on the thoroughfare; I can not tell the total number of fire shots as we had gone inside the house. Similarly, Muhammad Ehsan (PW-7), has also corroborated the complainant on all material and major aspects of the case by stating categorically during cross-examination that, I along with Aslam PW went to the Dera of Ghulam Abbas deceased; after half an hour of our sitting in the Dera of Ghulam Abbas, Tanvir-accused arrived there; that the deceased as well as the accused were at a distance of about 40 feet from us at the time of occurrence; after about 1/2 minutes of calling of Ghulam Abbas, deceased, occurrence took place; there was no shelter between the place when we were present at the time of occurrence and the gate of the house of Ghulam Abbas, deceased, therefore, we took shelter inside the gate; the inter-se distance between accused and deceased was about five feet; the accused were present on the southern side of the deceased. The above depositions of the eyewitnesses have been clear and consistent while describing the sequence of the incident that had taken place on the day of occurrence. There is no material discrepancy or contradiction in the statement of the prosecution witnesses. According to the learned counsel for the appellant, Adalat Khan (PW-6) deposed during cross-examination that after about 1/2 minutes, they also followed Ghulam Abbas, deceased whereas Muhammad Ehsan (PW-7) deposed during cross-examination that after 2/3 minutes, they also followed Ghulam Abbas and Tanvir after their going out of the house; that Adalat Khan (PW-6) deposed during examination-in-chief that they were present in the "house" of Ghulam Abbas, whereas during cross-examination the complainant repeatedly deposed that "the Dera" of Ghulam Abbas and similarly Muhammad Ehsan (PW-7) deposed which creates doubt about the presence of the witnesses at the place of occurrence. In this regard, we have noted that there was minor difference in time stated by both witnesses regarding following Ghulam Abbas-deceased which does not go to the root of the case, the minor discrepancy in time may has been arrived due to lapse of time, in between the time of occurrence and when the witnesses deposed in the court and the time can not be pin-pointed with mathematical precision. As well as whether Ghulam Abbas-deceased was present in his "house" or "Dera" is concerned, we have noted that defence has not put any suggestion to the prosecution witnesses that the house and Dera of Ghulam Abbas were separately situated. Muhammad Alam, S.I. (PW-9)-the Investigating Officer deposed during cross-examination that, "the eye-witnesses and complainant are residents of village Dhola. The occurrence took place outside the village Dhola, where the complainant and the witnesses have their residences/Deras" which shows that the house and Dera of Ghulam Abbas were the same. There is no material discrepancy or contradiction in the depositions of the prosecution witnesses. The eye-witnesses have also been categorical in deposing that Tanvir-accused had fired at Ghulam Abbas hitting him below his right eye. The elaborate cross-examination of the eye-witnesses on behalf of the accused has failed to discredit their testimony in any manner whatsoever. All the aforesaid witnesses have also categorically denied the defence version which was put to them in their cross-examination. It has been held by the Hon'ble Supreme Court of Pakistan in case titled "Khadim Hussain v. The State"
(PLD 2010 SC 669) as under:- "---Mere relationship of a witness with the deceased is not sufficient to discard his statement, if he stands firm to the test of cross-examination and is corroborated by sufficient material---"
15. As against the above, what we find is the un-acceptable defence version which remains un-substantiated in the absence of any acceptable evidence. According to the defence version put to the eye-witnesses is that, "after the occurrence the accused as well as the relatives of accused Tanvir participated in funeral rituals of the deceased." The aforesaid version remains un- substantiated, as during cross-examination conducted by the defence counsel, Zafar Iqbal, S.I.
(CW-1) deposed that, "Tanvir accused had stated that at the time of occurrence, he along with Sajjad, Arshad, Irfan and Mian Khan were present in the house of Sajjad situated in village Dhola and at Maghrab time he had heard a fire shot from outside and mother of Sajjad namely Saed Bibi asked us not to go outside and she would get the news about the fire shot and after a while she had told them that Abbas had received fire shot and after that the above mentioned persons proceeded towards the Dera of Abbas, before their reaching there, Abbas was shifted to Jaura Hospital on a car but as Abbas had expired on the way, therefore, his dead body was brought back and he along with other persons brought out the dead body of the deceased from the car and put the same on a cot and afterwards he along with other persons had arranged the sitting arrangement of the guests who had arrived for condolence. His family including the female members also reached there. He along with his other male family members had participated in the funeral of the deceased." On the contrary, the material on the record shows that while giving answer to question No.5, in statement under Section 342 Cr.P.C., Tanvir Ahmad-accused took new defence. For ready reference, the plea took by Tanvir Ahmad-accused is being reproduced here under: "---I was not present at my village in the days of occurrence as I had gone to some other place and registration of F.I.R was not in my knowledge. As soon as the same came into my knowledge, I myself had surrendered before Zafar Iqbal, S.I. to plead my innocence."
The above facts clearly demonstrate the falsity of the defence version. In view of the facts stated herein above, it can not be urged that the prosecution tried to suppress the genesis of the case.
16. As far as medical evidence is concerned, learned counsel for the appellant submitted that Dr. Atif Mansoor was not examined and postmortem report was placed on the record without prior permission, so the postmortem report can not be considered. Dr. Atif Manzoor conducted the postmortem examination of the dead-body of Ghulam Abbas deceased, who was not produced before the court by the prosecution. We have gone through the record of the learned trial court.
From which it reveals that the request was made by the learned Deputy District Public Prosecutor to the learned trial court for summoning of the Record Keeper of Tehsil Headquarter Hospital, Kharian along with the original register of postmortem report to prove the evidence of Medical Officer through secondary evidence. The request was allowed as learned defence counsel has not opposed the request of learned Assistant District Public Prosecutor. The prosecution through Arshad Iqbal (PW-3) produced secondary evidence by adopting due procedure. From the testimony of Arshad Iqbal (PW3), it reveals that the original register of postmortem report pertaining to the postmortem examination of Ghulam Abbas, deceased No.100 AF/2005 was produced before the learned trial court. The original was compared with Ex.PB and Ex.PB/1 found correct, signed and returned. The ocular account fully corroborated by the postmortem report (Ex.PB), which had been proved as secondary evidence. As per contents of postmortem report (Ex.PB), Dr.Atif Mansoor had conducted postmortem examination of the deceased at 11:40 p.m. on 19.10.2005 and found following injuries on the dead body of the deceased-Ghulam Abbas:-
1. Firearm entry wound 1/2 cm x 1 cm at under (R) eye lash. Edges irregular inverted, blackening present.
2. Firearm exit wound mid of lower occipital region 3 x 1 cm, edges irregular, everted. Brain matter damaged, occipital bone fractured, skull cavity full of blood.
The above quoted injuries reflect that the injury No.1 was the entry wound. The cause of death in this case in the opinion of Medical Officer was shock and hemorrhage due to injury No.1 caused by firearm. According to postmortem report (Ex.PB), the probable time that elapsed between the injuries and death was immediate. The medical evidence fully corroborates the ocular account qua the appellant as the injury attributed to the appellant, was available on the dead-body of the deceased.
17. As far as the motive is concerned, although motive for committing the incident by the appellant has been alleged by the prosecution but no evidence was produced that there was any conflict over local bodies election between the deceased-Ghulam Abbas and the appellant-Tanvir Ahmad. We are of the opinion that the prosecution has been unable to establish a motive in the instant case.
18. As far as non-recovery of any weapon of offence and crime empty for the place of occurrence is concerned, in view of the direct evidence available, non-recovery of weapon was not material and same can not take away the probative force of the ocular account.
19. As far as, contention of the learned counsel for the appellant is concerned that the appellant was declared innocent during investigation conducted by the Investigating Officer after a thorough probe and the appellant is liable to be acquitted is concerned, the same has no force. As Zafar Iqbal, S.I. (CW-1) deposed during cross-examination that 23 persons appeared in defence of Tanvir-accused but he did not record their statements. It is also admitted fact that the appellant was declared proclaimed offender on 14.05.2007 by the learned trial court. Later on, on 27.10.2010, the appellant was arrested by Zafar Iqbal, S.I. (CW-1) after five years after the occurrence and any finding of the Investigating Officer regarding innocence of the appellant has no evidentiary value as same was recorded without any solid material. Furthermore, the opinion of the police is not binding upon the Courts.
20. In view of above circumstances, we have drawn a conclusion that the prosecution has been able to prove its case against the appellant beyond any shadow of doubt. We have observed the factors which have persuaded us not to uphold the capital sentence of the appellant. Firstly, the motive has not been proved by the prosecution and secondly it is a case of single fire shot.
21. On the basis of grounds discussed hereinabove, we are of the view that mitigating circumstances exist in the quantum of sentence of the appellant. Therefore, in our view death sentence awarded to the appellant is quite harsh. It is well recognized principle that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence. It is held by the Hon'ble Supreme Court of Pakistan in the case titled "Dilawar Hussain v.
The State" (2013 SCM R 1582) in which the Hon'ble Supreme Court of Pakistan has observed at page 1590 as under:- "---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 improve second sentence of imprisonment for life while extending benefit of the extenuating circumstances to the convict in a just and fair manner---." private complaint (complaint case No.24 of 2011), under Sections 302, 324, 148, 149 P.P.C, Police Station Saddar, Kharian, is dismissed. However, his (the appellant) death sentence is converted into imprisonment for life. The benefit of Section 382 (b) of Cr.P.C., is also extended to the appellant whereas the compensation amount as well as sentence qua non payment of compensation amount imposed by the learned trial court shall remain intact upon the appellant (convict).
23. Murder Reference No.19 of 2012 forwarded by the learned trial court for confirmation of the sentence of death inflicted upon the convict fails, which is answered in Negative.