RAZA ALI KHAN, J.---The above titled criminal appeals, filed against judgment passed by the leaned Additional District Criminal Court, Hajira, dated 07.02.2008, raise common questions of facts and law and arise out of common judgment, hence, were heard together and are decided through this single judgment.
Facts forming background of the captioned appeals are that on 07.10.2000, Abdul Qayyum son of Misri Khan, complainant filed a written application at Police Station Hajira, stating, therein, that the applicant is resident of village Serari. His real cousin Muhammad Ishaq son of Fateh Muhammad is watcher in Hirni Cap Serari. Today, i.e. 07.10.2000 at 8:30 am, Muhammad Ishaq reached at Hirni Cap, Muhammad Ishaq son of All Hussain and Rashid son of Muhammad Ishaq resident of Serari were cutting grass from banned forest. Muhammad Ishaq, watcher forbidden them from cutting grass, whereupon, accused Muhammad Ishaq son of Ali Hussain, who was armed with 12 bore riffle with the intention to kill, fired by targeting Muhammad Ishaq which hit him at his left eye and head, who died on spot. Accused along with Rashid flew away from the place of occurrence. The occurrence was witnessed by Muhammad Shafait, Muhammad Ayoub and Rehmat Jan.
Muhammad Nasim also witnessed accused with 12 bore riffle. It was stated that the accused has committed the occurrence in connivance with Muhammad Saleh, Khan Wali, Muhammad Tariq, Muhammad Arshad, Muhammad Irshad and Mukhtar.
The motive behind the occurrence is that the accused Ishaq wants to be appointed as Watcher in place of deceased. On this report, FIR No.155/ 2000 was registered at Police Station Hajira in the offences under sections 302/109, A.P.C. on 07,10.2000. The postmortem of the dead body was conducted, blood stained earth and empty of cartridge were taken into custody, site map was also prepared. After arrest of the convict/appellant, 12 bore riffle (weapon of offence) along with 6 cartridges of 12 bore riffle were recovered. The report of forensic science laboratory was also obtained. During investigation, Muhammad Irshad, Muharninad Rashid, Khan Wali, Muhammad Saleh, Mukhtar and Tariq were discharged under section 169, Cr.P.C. After formal investigation, the police submitted challan in the offence under section 302, A.P.C. before the Additional District Criminal Court, Hajira on 31.10.2000. In order to prove its case the prosecution produced as many as 17 witnesses during trial. The statement of the convict appellant under section 265-D,. Cr.P.C. was, recorded on 27.11.2000, who pleaded not guilty and claimed innocence, whereupon the prosecution was directed to lead evidence in support of allegation. At the completion of prosecution evidence, the statement of the accused under section 342, Cr.P.C. was recorded, who denied the charge and again claimed to be innocent. Upon the completion of the trial, the trial Court convicted the accused under section 302, A.P.C. and awarded him death sentence as Qisas vide judgment dated 19.08.2003. On appeal, the Shariat Court of Azad Jammu and Kashmir remanded the case to the trial Court for fresh decision after re-examination of the accused under section 342, Cr.P.C. in accordance with law vide judgment dated 07.05.2007. On remand, the learned trial Court again recorded statement of the accused under section 342, Cr.P.C. on 26.06.2007 who again pleaded not guilty and recorded his statement under section 340(2), Cr. P. C . However, opted not to produce defence evidence. At the conclusion of the trial, the learned trial Court convicted appellant Muhammad Ishaq under section 302(c), A.P.C. and awarded him 25 years imprisonment vide impugned judgment dated 07.02.2008. Appeal No.01/2008 has been filed by complainant for awarding 'death sentence as Qisas to the convict appellant. Appeals Nos.08/2008 and 09/2008 have been filed by convict appellant for setting aside the impugned sentence awarded to him.
Sardar Muhammad Suleman Khan, learned Advocate appearing for the convict appellant argued that initially, some other accused were also nominated in the FIR who were discharged by the police during investigation. The learned Advocate further argued that in the FIR, Muhammad Shafait, Muhammad Ayoub and Rehmat Jan were shown as eyewitnesses, however, during trial, it was established that Muhammad Shafait and Muhammad Ayoub did not saw the occurrence who came at the place of occurrence after the incident as per statement of Mst. Rehmat Jan. The learned Advocate contended that the statement of Rehmat Jan is contradictory and is not of worth consideration. He further explicated that as per FIR the occurrence took place at 8:30 am, whereas, the dead body was brought at hospital for postmortem at 4:15 p.m. after the delay of 8 hours. The learned Advocate further contended that motive behind the occurrence is not proved because the prosecution could not place on record any proof that the convict appellant was ever appointed as watcher or he wanted to be appointed as watcher. The learned Advocate further stated that there is no explanation that which type of empty was recovered from the place of occurrence. The learned Advocate added that under Article 17 of the Qanun-e-Shahadat Order on the statement of the single witness, the accused cannot be convicted. The learned Advocate also stated that the alleged weapon of offence has been recovered from a common place and the recovery witnesses are close relatives of the complainant, hence, their evidence is not reliable. The learned Advocate further added that the investigating officer did not record the statements of Muhammad Shafait, Muhammad Ayoub and Muhammad Nasim under section 161, Cr.P.C. on the same day. The learned Advocate finally submitted that the prosecution has failed to prove its case beyond any shadow of doubt, therefore, the convict appellant who is 92 years old is liable to be acquitted by extending benefit of doubt. The learned Advocate in support of his submissions placed reliance on following case law:
1. 2004 YLR 2803.
2. 2007 SCR 332.
3. Ejaz Ahmad alias Jaggi v. State 2007 YLR 1560.
4. Syed Afzaal Shah v. State and another 2010 PCr.LJ 1567.
5. Fiyya z Ahmad and others v. The State and others 2008 PCr.LJ SC (AJ&K) 868.
6. Asia Bibi (widow) and 5 others v. Ghazanfar Ali and 3 others 2005 PCr.LJ 415.
7. Ajaib Sikandar v. Muhammad Javaid alias Jaidee and another 2006 PCr.LJ SC (AJ&K) 1893.
8. Shahzad and 9 others v. Rana Qamar and 5 others 2019 YLR 2508.
9. Muhammad Azeem alias Dodo Katohar v. The State 2012 YLR 724.
10. Ahsaan Azeem and 2 others v. The State and 2 others 2014 SCR 735.
11. Medical Jurisprudence by Modi 21st Century Edition Page 354.
Mr. Saood Khan, the learned Advocate appearing for the complainant has filed written arguments wherein it is submitted that this is a day light murder which is witnessed by Muhammad Shafait, Muhammad Ayoub, Muhammad Nasim and Rehmat Jan. The learned Advocate further argued that Muhammad Ayoub, Muhammad Nasim and Rehmat Jan appeared as Prosecution witnesses and fully supported the prosecution version. The learned Advocate contended that 12 bore riffle (weapon of offence) with 6 cartridges were recovered on the pointation of the convict appellant and the recovery witnesses supported the recovery of weapon of offence on the pointation of the convict appellant. The learned Advocate contended that the prosecution has proved its case beyond any reasonable doubt, therefore, the convict appellant was liable to be awarded major punishment i.e. death as Qisas. The learned Advocate supported his submission with following case law:-
1. AIR 1957 Cal 709; 2. 2002 PCr.LJ 62;
3. PLD 1974 Lah. 929; 4. 2004 PCr.LJ 1209; 5. 2001 PCr.LJ 268; 6.
PLD 2005 Pesh. 166; 7. 2008 MLD 557; 8. 2004 SCMR 447; 9. 1993 SCMR 155;
10. PLD 1992 SC AJK 20;
11. PLD 1984 SC AJK 82; 12. 1997 PCr.LJ 5; 13. 2001 SCR 2004; 14. 1997 PCr.LJ 1539; 15. 2010 SCR 75; 16.
2014 SCR 893; 17. 2014 SCR 1585; 18. 1999 MLD 400; 19. 2008 SCMR 338;
20. PLD 2009 SC 777; 21. 1997 PCr.LJ 1522;
22. PLD 2007 SC (AJ&K) 77 and 23. 1999 SCMR 1469.
The learned AAG adopted the arguments advanced by the learned counsel for the complainant and prayed for awarding major punishment to the convict appellant.
We have heard the learned counsel for the parties and gone through the record of the case as well as case-law referred to by the learned counsel for the convict appellant.
The case of the prosecution is that on 07.10.2000, convict appellant Muhammad Ishaq son of Ali Hussain, murdered deceased Muhammad Ishaq with 12 bore riffle and the occurrence was witnessed by Muhammad Shafait, Muhammad Ayoub, Rehmat Jan and Muhammad Nasim also witnessed accused with weapon of offence on the place of occurrence. As per prosecution stand, the motive behind the occurrence was that the accused wanted to be appointed as watcher in place of deceased. The weapon of offence i.e. 12 bore riffle was also recovered on the pointation of convict appellant. The prosecution abandoned Muhammad Shafait P.W.3. Muhammad Ayoub, P.W.5, deposed in his Court statement recorded on 07.02.2001. During cross-examination admitted that he reached at the place of occurrence after 10 minutes of the incident, therefore, he cannot be declared as eye-witness of the occurrence. Muhammad Nasim Khan, P.W.4, deposed in his Court statement recorded on 02.03.2001 that on the day of occurrence he was cutting grass from his land. Accused cried loudly, whereupon, he saw towards the accused at that time accused and deceased were in front of each other, thereafter, accused fired which hit the deceased who died.
This witness in his statement recorded under section 161, Cr.P.C. on 12.10.2000 did not depose that the accused raised any cry rather he stated that, he, Muhammad Ayoub, Mst. Rehmat Jan and Muhammad Shafait were seeing, at the meantime the accused fired by targeting deceased Muhammad Ishaq who died on spot. He also stated in his Court statement that he was at the distance of about 200 yards from the place of occurrence. Mst. Rehmat Jan, P.W.2, who is the eye- witness of the occurrence deposed in her Court statement that she was grazing her cattle and accused Ishaq and his son were cutting grass from Horni Cap. Deceased forbidden them from cutting grass, whereupon, accused fired which hit deceased at his eye who fell down. Accused flew away from the place of occurrence. This witness fully supported the prosecution story.
After arrest, weapon of offence, 12 bore riffle was also recovered on the pointation of convict appellant on 18.10.2000. Abdul Haq and Shoukat Hussain were shown as recovery witnesses.
Shoukat Hussain, appeared before the Court and recorded his statement and deposed that the weapon of offence was recovered in his presence on the pointation of convict appellant from village Dothan. Shoukat Hussain is an independent witness and his statement is of worth consideration. Abdul Haq also supported the recovery of weapon of offence on the pointation of the convict appellant The recovered weapon of offence i.e. 12 bore riffle and crime empty of 12 bore recovered by the police from the place of occurrence were sent to the chemical examiner. The Chemical Examiner opined that the crime empty of 12 bore marked as "C" had been fired from the "SBBL" Short gun of 12 bore. He further opined that "SBBL" short gun of 12 bore butt and body are in working order.
As per medical report, the deceased died due to gun shot, thus the medical report also supports the prosecution version. Dr. Muhammad Naseem Hassrat Qazi, CMO, Civil Hospital Hajira, who conducted the postmortem examination on the dead body of deceased and found a single GSW of entry (Lt.) orbit shouted gun all orbit was vanished and teared off smoking of bullet 6 giaprox.
Wound of exit (Lt.) mastoid process (Lt.) TMR. Dislocation, on his body according to his opinion cause of death was "Homicidal death by GSW by long bore heavy gun from 3-4 yards approx"
Homicidal nature GSW "12 bore". Improbable time between injuries and death was 5-10 minutes and between death and postmortem was 6-8 hours.
The complainant specifically alleged the motive of occurrence in the FIR and the prosecution witnesses also established the motive behind the occurrence in their statements.
In the present case, when the aggravating and mitigating factors are taken into account, together with the facts of the case, our view is that the 25 years sentence is not an appropriate sentence, there are therefore, substantial and compelling circumstances justifying a sentence lesser than 25 years sentence imposed. In our view, after taking into account all circumstances of this matter, we consider a sentence of 14 years imprisonment to be an appropriate sentence and considerably certain enough to teach the culprit a lesson of a life time to never repeat and undergo any crime again.
In view of above, the appeals filed by convict appellant Muhammad Ishaq are accepted partially and he is convicted under section 302(c), A.P.C. and is awarded 14 years rigorous imprisonment.
The convict appellant shall also pay Rs.5,00,000/- as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of none payment of compensation amount, the convict appellant shall undergo for further 6 months simple imprisonment. The convict shall also be extended benefit of section 382-B, Cr.P.C. The appeal filed by the complainant is disposed of in the manners indicated hereinabove.