Dost Mohammad Khan, J.--Appellant Tahir Mehmood was booked for crimes u/Ss.302/324/353/186 PPC and u/S. 7 ATA, 1997 vide Crime Report No, 52/12 dated 23.2.2012, registered by Police Station, Dehli Gate, When. After holding t trial, the Trial Judge upon, conviction, handed down the sentences as under:
(i) U/S. 302(b) PPC: Death sentence and to pay Rs, 5,00,000/- as compensation to the LRs, of the deceased or in default thereof to suffer six months S.I
(ii) U/S. 7 ATA: Death sentence and to pay Rs, 5,00,0001- as fine or in default thereof to suffer six months S.I.
(iii) U/S. 324 PPG: 10 years RI. and to pay Rs, 50,000/- or six months S.1 in default thereof
(iv) U/S. 353 PPC: One year R.I. with fine of Rs, 10,0001- or in default thereof one month S.I.
(v) U/S. 186 PPC: Two months S.I with fine of Rs, 1500/- or in default thereof to suffer five days Si The Murder Reference sent by the Trial Court was confirmed and appeal of the appellant was dismissed maintaining his death sentence and other sentences awarded to him by the Trial Court, except the one awarded. u/S. 324 PPC because Muhammad Shahid, the injured witness has not charged the appellant for causing him injury or attempting at his life.
On filing Criminal Petition No, 721/2014, leave to appeal was granted vide order dated 29.1.2015 for re-appraisal of evidence.
3. While on petrol duty, Maqbool All SI (PW-11) received a wireless message from the police control room that a person was firing near Shah Khurram road/street and one person has been shot thus, he along with the police constables including Liaqat Ali deceased rushed to the crime spot where they were confronted by the appellant while Shahid a passerby was lying injured. The appellant made an attempt to flee away however, Constable Liaqat Ali deceased chased him and to thwart his arrest, the appellant fired at Liaqat Ali who was hit below the belt. The Inchacge of the police party, Maqbool Ali SI; was armed with a pistol while the rest were armed with service rifles fully automatic however, they did riot respond in any manner. In the "Murasla" report drawn at the spot, it is alleged that the appellant was apprehended by Muhammad Aslam and Mukhtar with the help of other private witnesses who were not produced at the trial. Liaqat Ali constable succumbed to the injury during the transit while Shahid injured survived. The case was registered vide above mentioned FIR; investigations were conducted, the crime pistol was allegedly recovered from the appellant with 14 empty cases of the same bore. The report of the FSL is positive. At the conclusion of investigation, charge sheet was filed and at the trial the Prosecution examined as many as 12 witnesses, whereafter upon conviction, the appellant was sentenced to death for two offences as above with other sentences.
We have heard the learned ASC for the appellant and Mr. M. Jaffar, learned DPG, Punjab and have carefully gone through the evidence on record.
4. Ijaz Ahmad (PW-1) "Moharar" of the PS deposed that in the Daily Diary of the Police Station, Liaqat Ali constable was assigned the duty of watch and guard of the police lock up and was not initially shown, on petrol duty as was claimed by Maqbool All SI in the "Murasla" report and that through over-writing one Javed Iqbal was added and the original entry was scored off. This circumstance has rung the alarm bells for the Court to be cautious about the story, set up by the Prosecution.
5. It is also a matter of record like inquest report, recovery memo and the site-plan of the crime scene that no Service rifle has been shown with the dead body of the deceased constable Liaqat Ali nor it was secured from the spot or elsewhere.
6. On the other hand, Muhammad Shahid (PW-8) did not support the prosecution version and changed the entire complexion of the occurrence by deposing that after finishing his labour work at Manzoorabad, he was passing by the crime scene when firing started and as a result he sustained an injury with a stray bullet however, he did not see as to who fired at him and why the firing was going on because of foggy weather and also because it was 4:00 am and there was a pitch darkness.
7. It is on record that Liaqat Aii deceased constable was the resident of the adjacent area therefore, keeping in view the documentary evidence in the shape of daily diary and because he was not assigned the official duty of patrolling the area but was stationed at the police lock up inside the Police Station for watch and guard duty, his uncalled for visit to the area would raise many eyebrows and the Prosecution has been unable to explain this mysterious circumstance.
8. The Prosecution has also failed to adduce evidence that either the appellant was insane or was intoxicated and under that effect he had been making the fire widely, therefore, the logical conclusion would be that the deceased constable after slipping away from his place of duty inside the Police Station, around or after midnight visited the area not in performance of his official duty but it was for undesirable, inappropriate or detestable purpose. The facts further suggest that probably he had entered the house of the appellant and having been spotted, he started running, chased by the appellant and was fired at on the spot while the second shot missed the target and the bullet hit the passerby namely, Muhammad Shahid (PW-8). The arrest of the appellant by private persons also raises serious doubts because how he managed his escape while encircled by the well armed police contingent. They were more capable to apprehend the appellant instead of letting him to skip after their own colleague was shot dead and in any case they would have given a befitting response by firing at the appellant with their automatic weapons. This fact would lead us to the conclusion that the plea of the appellant that he was arrested from his house was not a hollow assertion.
9. The prosecution story by itself drops hints behind that some material facts were suppressed by the investigating agency and preferred a fudged story with the object to exonerate the 1n-charge of Police Station/Moharar who had let free the deceased constable from his entrusted duty inside the Police Station and also that its colleague's blood might not go waste by giving the true facts that he entered the area with immoral designs or activity. The appellant has also not put up the true story probably due to family honour, however, each and every circumstance, leads to an inference that the deceased was killed when he was found in the house and when he made his exit there-from, he was chased and fired upon at the crime spot.
10. In view of the cardinal principle of justice, it is the obligation of every Court to look for the 3rd probable story, shorn off embroidery and free of cosmetic improvements when the facts and circumstances of the case point towards that conclusion and to reject the two rival theories, put up by the two interested parties where visible attempts have been made to muffle the established facts; Reliance in this regard is placed on the view held in the cases of Syed Ali Beopari. v. Nibaran Mollah and others (PLD 1962 SC 502) and Zahid Parvez v. The State (PLD 1991 SC 558).
11. What has been discussed and concluded above, based on logical inference, is much closer to the true facts which were unfortunately concealed from the Court of law by both the parties, however, the famous sayings would come into play that, "a man may tell a lie but not the facts".
Apart from the above, it is a matter of record that it was chilly, cold and foggy dead of night, the uninvited and unauthorized visit of the deceased constable of the area was to make some undesirable overtures. Probably, he might have intruded into the house of the appellant for that purpose and after discovery of his presence, he might have been challenged, thus, he escaped from there but was chased and was shot dead at the spot. The injured PW, Muhammad Shahid, as discussed earlier, has not charged the appellant for causing him fire-arm injury and he has squarely stated, that the occurrence took place at around 4:00 am in the dark of night. Being an independent witness, this poor fellow is giving the true version of the story in which the deceased constable also sustained the fatal injury.
12.In view of the above inferences drawn, and the conclusion reached at, we are of the considered view that Section 7 ATA is not attracted at all and also for the reasons that the view held in the recent judgment in the case of Waris Ali and other u. The State (2017 SCM R 1572), the conviction and sentence of the appellant under the above provision of law was bad in law and not sustainable. Similarly, no question arose that the deceased was prevented from discharging his official duty therefore, the conviction of the appellant u/Ss. 353 and 186 PPC is equally not tenable under the law. Accordingly, the convictions arid. sentences awarded to the appellant u/S 7 ATA and u/Ss. 353 & 186 PPC are set aside and he is acquitted of these charges.
Keeping in view the two rival theories of the prosecution and the defence and after holding that both the parties have suppressed material facts from the Court and also for the reasons that after drawing the above inferences and reaching at a 3rd probable story, we are again of the considered view that in the matter of sentence, the Court is essentially required to exercise judicial care and caution, therefore, the death sentence awarded to the appellant u/S. 302(b) PPC does not seem justified. Thus, the same is reduced to life imprisonment with benefit of 382 B Cr.P.C. Equally the compensation, amount of Rs, 5,00,000/- is reduced to Rs, 1,00,000/- or in default of payment thereof, he shall suffer six months S.I.
The appeal is partly allowed. 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.