Sadaqat Ali Khan, J.--Appellant (Muhammad Asif @ Assu) has been tried by learned trial Court in case FIR No. 702 dated 21.12.2015 under Sections 394/397/302/34/41 1, PPC P.S. Yousaf Wala District Sahiwal and was convicted and sentenced vide judgment dated 14.01.2017 as under:
(i) Muhammad Asif g Assu appellant U/S. 302(b), PPC He was sentenced to DEA TH as Tazir" alongwith compensation Rs. 5,00,000/- u/S. 544-A, Cr .P.C. to be paid by him to the legal heirs of deceased and in default thereof to further undergo 6- months S.I.
U/S 394, PPC He was sentenced to imprisonment for 10-Y ears R.I. and fine of Rs. 50,000/- and in default thereof to further undergo 3-months S.I.
U/S. 397, PPC He was sentenced to imprisonment for 7-yesrs R.I.
All the sentences were, ordered to be run concurrently with benefit of Section 382-B, Cr .P.C.
Appellant has filed instant appeal against his conviction whereas learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise which are being decided through this single judgment.
2. Brief facts of the case have been stated by Dr.Zulfiqar complainant (PW-6) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts: "Stated that on 21.12.2015 at about 06:00 p.m. I alongwith my son Husnain and nephew Naeem reached to Tahir Medical store situated at Adda 73/5L, Sahiwal where already Muhammad Tahir my brother and his son Adnan S/o Hanif already present who was counting sale amount. At that , time the electric lights were on inside and outside the medical store. Meanwhile, accused Asif present in the Court alongwith his one unknown co-accused armed with pistols .30-bores entered into medical store. Both the accused asked to us to keep eyes down ward and hand over all belongings to their. Sale amount Rupees two lac laying on the counter of the medical store which was picked up by accused Asif present in the Court and after roping the same in a shopper put it into his wearing jacket and also hurled murder threats not to chase them. The accused persons "went out from the medical store and went away while riding on motorcycle but said Tahir and Adnan, chase them to apprehe nd them. I and my son Husnain and nephew Naeem PW also followed them. The accused persons took turn toward soling leading to graveyard 73/5L and fell on the ground due to slip of their motorcycle. Various sweet shops were also situated at that point and their electric lights were on. My broth er Tahir and Adnan since deceased also reached near them and we also reach there while following them. In our view, the accused Asif @ Assu present in the Court armed with pistol made a shot which hit on right flank of Adnan who fell down being injured. The other unknown co-accused person also made a pistol shot which hit on the nose of my brother Tahir who also fell down and both the accused persons succeeded to flee away while brandishing their weapons in air on their motorcycle towards graveyard of the village.
Meanwhile, police also reached at the spot who rescued the said injured persons and shifted them to DHO Hospital Sahiwal. Both the injured persons were unconscious. On the same night Tahir Injured PW was referred to General Hospital Lahore due his serious conditions. I moved an application Exh.PB to police for registration of case.
I came back from Lahore on 26.12.2016 at night at my house at Sahiwal. I alongwith my son Husnain and nephew Naeem went to DHO, to see injured Adnan. Aneeq-uz-Zaman, Zeshan etc. were also present at DHQ, Sahiwal.
After midnight i.e 27.12.2015 Muhammad Adnan Injured PW, on over inquiry disclosed that he had identified the accused who fired on him namely Asif Alias Assu now present in the Court. We also recorded the voice of injured PW Adnan to said context in a mobile phone and thereafter , we got prepared C.D-P9 of the same and presented to I. 0 of this case who took the same into his possession vide recovery memo. Exh.PE. I and other PW attested the said recovery memo.
On 30.03.2016 I joined identification parade alongwith Husnain and Naeem PWs at central Jail Sahiwal in the supervision of area Magistrate. I also identified the accused Asif alias Assu now present in the Court in custody during identification parade. Thereafter , I moved application Exh.PF to nominate the accused Asif alias Assu present in the Court in this case."
3. Arguments heard, record perused.
4. Adnan (since dead) and Muhammad Tahir injured PW-5 sustained fire-arm injuries during the commission of robbery took place at medical store of Muhammad Tahir injured PW-5 on 21.12.2015 at 6.00 p.m., FIR was lodged on the same night on 21.12.2015 on the written application Exh.PB moved by Dr. Zulfiqar complainant PW-6 against unknown accused. Adnan injured died on 27.12.2015. Statement of Adnan, the then injured was recorded by Dr. Zulfiqar complainant PW-6, before his death on 27.12.2015 in a mobile phone, which was converted into CD P9 and produced before the I.O. who took the same into possession vide recovery memo.
Exh.PE. Learned trial Court specifically observed in Para 20 of the impugned judgment that statement of Adnan (deceased) in injured condition "both in audio and video simultaneously" was recorded through mobile phone modern device and then CD P9 was prepared as per Article 164 of Qanoon-e-Shahadat Order 1984. CD P9 was played in computer of the Court (audio, video) simultaneously during arguments in presence of parties and their learned counsels wherein deceased Adnan in injured condition has nominated the appellant Assu (Asif) resident of Chak No. 44 and name of the appellant is Asif alias Assu, resident of Chak No. 44/5-L. whereafter appellant was arrested on 24.02.2016 being suspect by Noor Samad S.I. I.O. of this case, PW-8 who on 30.03.2016 was identified by Muhammad Tahir injured PW-5 and Dr. Zulfiqar complainant PW-6 during identification parade held in Central Jail Sahiwal under the supervision of Muhammad Zahid Farid, the then Judl. Magistrate PW-11. Learned counsel for the appellant could not point out any illegality in the proceedings of identification parade. Reliance is placed on case titled "Muhammad Siddique and others v. The State" (2020 SCMR 342).
5. Both the eye-witnesses Muhammad Tahir injured PW-5 and Dr.Zulfiqar complainant PW-6 have absolutely no grudge or to falsely implicate the appellant in the present case. They were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated each other on all material aspects of the case. They have established their presence at the time of occurrence at the place of occurrence with their stated reasons. Their evidence is straightforward, trustworthy and confidence inspiring.
6. Medical evidence has been furnished by Dr. Asad Ullah PW-9, who during post-mortem examination observed fire-arm injuries on the person of Adnan deceased attributed to the appellant which were ante-mortem in nature and were sufficient to cause death in ordinary course of nature. This witness also identified the signatures and hand writing of Dr. Farhan, who had medically examined Adnan deceased in injured condition and Muhammad Tahir injured PW-5, therefore, we are of the view that medical evidence has fully supported the ocular account furnished by the above mentioned eye-witnesses.
7. Petitioner was arrssted on 24.02.2016 by Noor Samad S.I. I.O. of this case PW-8 who on 10.04.2016 during interrogation disclosed and got recovered pistol P-14 from his house. Report of PFSA Exh.PHH shows that crime empties received in the office on 02.03.2016 after arrest of the appellant i.e. on 24.02.2016. In these circumstances, possibility cannot be ruled out that crime empties have been manufactured after arrest of the appellant before their dispatch to the PFSA to obtain positive report, hence positive report of PFSA Exh.PHH in this respect is not believable and is hereby discarded.
8. Noor Samad S.I. I.O. of this case PW-8 stated in his statement before the trial Court that on 17.04.2016 appellant got recovered Rs.50,000/- and on 18.04.2016 Rs. 30,000/- which were taken into possession through recovery memos Exh.PX and Exh.PY respectively , which show that Husnain and Muhammad Nadeem were the recovery witnesses who had been given up being unnecessary vide order dated 23.11.2016 by the learned trial Court on the statement of learned ADPP , hence these recoveries are not believable.
9. Adverting to the defence plea of Muha mmad Asif @ Assu appellant, he stated in answer to question "why this case against you and why the PWs made statements to involve you?" as under: "No eye-witness come into witness box to corroborate the statement of complainant. The complainant is the political figure of the area and is being supported by Ex.MP A Walayat Shah Khakhga. After his disqualification from membership of Provincial Assembly , nowadays his son Peer Khizar Hayat Shah Khakhga is sitting MPA of constituency NO. PP 220. Complainant also contested the election of Naib Nazim of Union Council No. 25 Headquarter 73/5/L under the umbrella of Peer Walayat Shah Khakhga Ex.MP A. There is a family and political enmity in between Peer Walayat Shah Khakhga Ex.MP A and Peer Mazhar Shah Khakhga. I was the gunman and front man of Peer Mazhar Shah Khakhga. After this sad incident being the gun man and front man of Peer Mazhar Shah Khakhga, after consultation and due deliberation, I was patronized in this case on the direction of Peer Walayat Shah Khakhga after four month s of registration of case. I was involved in this case by the complainant party on the direction of said Ex.MP A just to accommodate him and to teach me a lesson to support the rivals of ruling party . The I.0 of this case was also politically influenced by the said MPA. Whole investigation is the result of political pressure and based on mala fide intention. The reports of Punjab Forensic Science Agency , Lahore are fabricated and manoeuvred."
Muhammad Asif @ Assu appellant did not opt to appear as a witness under Section 340(2), Cr.P.C. However , he produced certain documents i.e. Exh.DA, Mark-A to Mark-E in his defence evidence.
Considering above, it is concluded that Muhammad Asif @ Assu appellant has failed to prove his defence plea and learned trial Court has rightly discarded his defence plea with suf ficient reasons.
10. In view of the above discussion, if evidence X recoveries are excluded from consideration, even then prosecution has, proved its case beyond shadow of doubt against the appellant through the evidence discussed earlier .
11, Now, coming to the quantum of sentence, we are of the view that positive repor t of PFSA Exh.PHH for matching of pistol with crime empties and recovery of currency notes have been discarded, therefore, in these circumstances case of the appellant is not of capital punishment. Reliance is placed on ease titled "Ahmad Khan alias Malangi and 3 others v . The State " (2008 SCMR 1644 )
12.Considering above, conviction of Muhammad Asif @ Assu appellant under Section 302(b), PPC for committing the murder of Adnan deceased is maintained but his sentence is altered from death to imprisonment for life. The compensation and sentence in default thereof awarded by the trial Court through the impugned judgment are maintained and upheld. Convictions and sentences of the appellant on other heads awarded by the learned trial Court are also maintained. All the sentences shall run concurrently . Benefit of Section 382.8, Cr.P.C. is also given to the appellant,
13. Consequently , with the above said modification in the impugned judgment, instant Criminal Appeal is hereby dismissed. Murder Reference is answered in NEGA TIVE and death sentence of Muhammad Asif @ Assu appellant is NOT CONFIRMED .