' IFTIKHAR MUHAMMAD CHAUDHRY, J.---These appeals by leave of the Court are directed against judgment, dated 21-10-1998 passed by Lahore High Court, Lahore whereby while accepting Murder Reference No,352 of 1992 sentence of death awarded to appellant Mirza Zaheer Ahmad was confirmed and his Criminal Appeal No,446 of 1992 was dismissed; whereas Criminal Appeals No,453 and 459 filed by respondents against their conviction and sentences awarded to them by the trial Court vide judgment, dated 29-4-1992 were accepted and they were acquitted of the charge.
2. Precisely stating facts of the case relevant for disposal of instant appeals as gleaned from the F.I.R. (Exh. PJ/I) are that complainant owns a sweet shop in Makki Mosque Street, new Civil Lines, Gujranwala. His son P.W. Muhammad Shafique owns a poultry shop nearby in the area known as Dinga Phatak. About a week prior to the occurrence, a customer had come to the shop of Muhammad Shafique. Hafiz Muhammad Asif and Liaquat Ai alias Popi misbehaved with the said customer. They were reprimanded by P.W. Muhammad Shafique, which led to an altercation resulting in threats by Hafiz. Muhammad Asif and Liaqat Ali alias Popi that they would avenge the insult. On the day of occurrence at about 8-30 p.m. Complainant Muhammad Rafique alongwith his sons Muhammad Shafique, Tariq Javed (deceased) and Hamayun Rafique (not produced) were present in the sweet shop. Hafiz Muhammad Asif, Mirza Zaheer Ahmad, Amer Qaddoos alias Pawa, Liaquat Ali alias Popi and Ejaz Baig alias Juj, all armed with .32 bore revolvers came at the said shop and declared that they had arrived to avenge their insult and simultaneously all of them started firing. Tariq Javed deceased was sitting upon a cushion, appellant Mirza Zaheer Ahmad fired with his revolver at Tariq Javed, which hit him on the chest. Complainant Muhammad Rafique alongwith his sons Muhammad Shafique and Hamayum Rafique took refuge behind the almirhas inside the shop and did not receive any injuries. However, the accused continued firing at them, as a result of which the panes of the shop were broken. After sustaining injury Tariq Javed fell down on the ground. The accused made their escape good towards Dinga Railway Crossing raising Lalkaras. Tariq Javed was shifted to Civil Hospital, Gujranwala in injured condition where he was given first aid and referred to Mayo Hospital, Lahore due to his critical condition. The complainant was going to the Police Station for lodging the report when on the way Muhammad Siddique, A.S.-I.
(P.W.11) met him to whom MLR (Exh. P.B.) was produced who recorded the statement Exh.PJ which was sent to the Police Station Civil Lines for registration of the case.
3. After registration of statement Exh.PJ Muhammad Siddique, A.S.-I./I.O. Went to the Civil Hospital, Gujranwala in order to get the statement of Tariq Javed injured recorded. For the said purpose he presented an application (Exh.P.C.) to the doctor but the doctor opined that the patient was not fit for making statement as he had been referred to Mayo Hospital, Lahore. Thereafter he visited the place of incident and prepared rough site plan (Exh.P.M.) containing his notes. He took into possession blood-stained 'earth from the place of occurrence. He after recording statements of witnesses received information from the Police Station that Tariq Javed had expired in the hospital.
He went to Mayo Hospital, Lahore on 21-4-1988 and prepared inquest report Exh.P/N in the Emergency Ward of Mayo Hospital, Lahore and took into possession blood-stained shirt and vest of the deceased. The accused were arrested on 9-5-1988. After conducting usual investigation the appellant and acquitted accused were sent to face the trial before Additional Sessions Judge, Gujranwala.
4. Learned Additional Sessions Judge, Gujranwala on 6th May, 1990 read over charge to the accused to which they pleaded not guilty and claimed trial. To substantiate accusations the prosecution examined 11 witnesses and after completion of prosecution evidence recorded statements of accused under section 342, Cr.P.C. However, the accused did not opt to make statements under section 340(2), Cr.P.C. After conclusion of proceedings the trial Court vide judgment, dated 29-4-1992 found appellant Mirza Zaheer Ahmad guilty under section 302, P.P.C.
And sentenced him to death. Respondents in Criminal Appeal No,463 of 2000 were also found guilty under sections 302/149, P.P.C. However, they were sentenced to suffer imprisonment for life.
The accused were also directed to pay Rs,10,000 each as fine which if recovered shall be paid to the legal heirs of deceased as compensation within the purview of section 544-A, Cr.P.C.
5. Being aggrieved from the judgment of trial Court the appellant and acquitted respondents preferred criminal appeals before Lahore High Court, Lahore. Trial Court also forwarded murder reference for confirmation or otherwise of death sentence of appellant Mirza Zaheer Ahmad.
Complainant also filed Criminal Revision for enhancement of sentence awarded to the acquitted respondents. Learned Division Bench of the High Court dismissed appeal of appellant Mirza Zaheer Ahmad whereas the appeal filed by respondents in Criminal Appeal No,463 of 2000 was accepted and they were acquitted of the charge vide impugned judgment, dated 21-10-1998.
6. Convict Mirza Zaheer Ahmad as well as complainant Muhammad Rafiq assailed the judgment .Of High Court by filing Petitions for Leave to Appeal. In both the petitions leave was granted to determine whether the impugned judgment is based on proper assessment of evidence on record.
7. Learned counsel for convict Mirza Zaheer Ahmad argued as under:--
(i) Prosecution adduced ocular evidence of two witnesses namely P.W. Muhammad Rafiq and Muhammad Sahfiq but their statements are not admissible as both of them are of impeachable character.
(ii) The prosecution witnesses have animosity towards convict because he used to complain against their nefarious activities against the society like dealing in the business of drugs and guns running etc. Therefore, they have falsely involved him in the commission of the offence.
(iii) Ocular testimony of P.Ws. Muhammad Rafiq and Muhammad Shafiq has not been corroborated in any manner by an independent source.
(iv) The recovery of incriminating articles against the appellant has been disbelieved by the trial Court as well as High Court and motive has also ,not been proved against appellant, therefore, appellant is entitled for acquittal.
(v) The prosecution case as it has been set up seems to be improbable because out of alleged firing made by five accused discharging each one of them. 4 to 5 shots from their weapons has only caused injury to Tariq Javed deceased whereas remaining persons did not receive even a single scratch on their persons, therefore, the case of prosecution seems to be pregnant with doubts, benefit of which cannot be extended to any one else except the accused.
(vi) The appellant is in custody for last about 14/15 years and as motive has also not been proved against him, therefore, if his other pleas fail, alternatively he is entitled at least for lesser sentence.
8. On the other hand learned counsel for complainant stated as under:
(i) Prosecution has established accusation against convict by producing trustworthy evidence of Muhammad Rafiq and Muhammad Shafiq whose presence at the place of incident was natural as they were present on their shop after Ifftar at the time of Taraveeh.
(ii) Motive has been established against appellant Mirza Zaheer Ahmad as well as the acquitted accused, therefore, they are liable for adequate sentence. The order of learned High Court acquitting respondents Nos.2 to 5 is not based on correct appreciation of evidence, therefore, on setting aside the order of the High Court, the sentences awarded to them by the Trial Court may be restored.
(iii) Appellant Mirza Zaheer Ahmad cannot claim reduction in the quantum of sentence for delay in conclusion of his trial.
9. Mr. Muhammad Zaman Bhatti, learned counsel for the State appearing in both the cases supported the arguments advanced by the learned counsel for the complainant and prayed that conviction/sentence awarded to Mirza Zaheer Ahmad be maintained whereas the impugned judgment of the High Court be set aside to the extent of acquitted respondents and the order of the trial Court convicting them be restored.
10. We have heard learned counsel for parties and have gone through the relevant record carefully.
As per the contentions of the appellant both the eye-witnesses i.e, Muhammad Rafiq and Muhammad Shafiq who are father and brother of deceased Tariq Javed remained in custody in connection with murder of father of respondent Hafiz Muhammad Asif. Although P.W. Muhammad Rafiq was ultimately acquitted but as far as Muhammad Shafiq is concerned he originally was awarded death sentence by the trial Court, which was confirmed by the High Court as well as by this Court as criminal petition for leave to appeal filed, by him was dismissed. However, later on this Court reviewed its earlier judgment, dated 26-1-1994 and modified his sentence from death to life imprisonment. Except this case no other material is available on record to conclude that they being hardened criminals were convicted/sentenced in other cases also. However, a person cannot be stamped to be a man of impeachable character merely for the reason that he remained involved in the case because to ascertain this aspect of the case it is necessary to go into the facts and circumstances of the case in which an accused has committed a crime. As far as the proposition that conviction in a criminal case cannot be based upon evidence of witnesses of impeachable character is concerned as it has been held in the case of Muhammad Aslam and 4 others v. The State (1975 PCr.LJ 1058). There is no cavil with this proposition. But before applying this test the facts and circumstances of each case have to be considered in depth. It is also to be noted that in criminal administration of justice each case has to be decided on its own facts because it is very rare where the facts of two cases in which crime has taken place at different times is similar, therefore, with exactness the principle laid down in the authority referred to hereinabove cannot be applied on each case. It may also be important to note that nothing has been brought on record by defence to substantiate that besides criminal case relating to the murder of father of Hafiz Muhammad Asif both the witnesses remained involved in drugs business or gunrunning etc. It is also important to point out that substitution in the instant case was impossible because it never happened that a father in whose presence his son has been killed will allow the real culprit to go escort free and will involve an innocent person in the commission of the offence. It may also be seen that it is the plea of the appellant that perhaps he as a social reformer used to complain against the conduct of the witnesses to the authorities as according to him they were involved in drug business etc., therefore, they had involved him in the instant case falsely. To substantiate his plea he failed to bring on record convincing evidence except making suggestion during cross- examination.
11. It is true that both the witnesses i.e, P.Ws. Muhammad Rafiq and Muhammad Shafiq are closely related to deceased Tariq Javed but they have furnished trustworthy evidence to support the prosecution case. The statements of both the witnesses get corroboration from each other. As far as medical evidence is concerned it being in the nature of confirmatory has also substantiated their version. Therefore the evidence of both these witnesses cannot be discarded merely for the reason that they were closely related to Tariq Javed deceased. It may also be noted that if P.W.
Muhammad Rafiq wanted to falsely involve the appellant in the commission of the offence he would have assigned a specific motive against him. A perusal of F.I.R. Exh. PJ/1 shows that in respect of previous occurrence, which had taken place 6/7 days prior to the incident in the shop of Muhammad Rafiq where Hafiz Muhammad Asif and Liaquat Ali alias Popi misbehaved him, the complainant had not named appellant Mirza Zaheer Ahmad. During the statements they had not furnished exaggerated account of incident against him except mentioning that he alongwith acquitted accused came at the place of incident and fired a shot which hit on the vital part of deceased Tariq Javed. Therefore, we are of the opinion that both these witnesses have furnished natural and coherent evidence. Although they were subjected to lengthy cross-examination but nothing beneficial to defence was extracted from them.
12. Now turning towards the case of acquitted accused it may be noted that High Court had taken into consideration the material available on record and on the basis of the same concluded that conviction recorded against them by the learned trial Court is not sustainable. We have heard learned counsel appearing for the complainant and have also independently gone through the record. We are persuaded to hold that neither incriminating articles were recovered from the place of incident to connect them with the commission of the offence nor any one has sustained injuries at their hands with firing allegedly made by them. Similarly nothing was recovered from the spot to establish their presence in the shop for the purpose of commission of the offence, therefore, learned High Court by extending benefit of doubt has rightly acquitted them of the charge.
13. As far as question of lesser punishment qua Mirza Zaheer Ahmad is concerned, in this behalf it may be noted that the prosecution has not alleged any motive against him in the F.I.R. Inasmuch as during trial nothing has come on record to suggest the motive for which he has committed the murder of Tariq Javed. Although it is now well known principle of law that presence of motive in each murder case is not necessary particularly when a cold blood or wanton murder has been committed but this principle is applied only keeping in view the facts and circumstances of each case. It may be noted that although in F.I.R. No motive was assigned against appellant but during his statement Muhammad Rafiq attempted to improve his earlier statement but a statement of a witness, which his been improved in the Court, would not advance the cause of the prosecution case. Contrary to it such improvement can create doubt in favour of the defence. So we feel no hesitation in concluding that the prosecution has failed to allege or prove motive against the convict. In addition .To it, he had only caused one injury on the person of Tariq Javed deceased.
Besides, he is suffering rigors of trial by remaining in incarceration for the last about 14/15 years, therefore, following the observations in the case of Mehoob Ahmad and another v. Muhammad Khan alias Kalu and another (2003 SCM R 95) sentence of death awarded to him can be altered to life imprisonment. Relevant para. From the judgment is reproduced hereinabelow:-- "10. Adverting to the question of sentence as modified by the High Court, we find that this is a case of single shot fired by the appellant, which proved to be fatal. Obviously, appellant did not repeat the fire from the weapon. Furthermore, appellant was aged about 60 years at the time of occurrence and by now he has attained the age of almost 70 years. Learned High Court, in the exercise of its discretion to our mind, was justified in awarding lesser penalty in view of the special circumstances. We are also of the firm opinion that the appellant had no direct motive to commit the murder of the deceased. Learned High Court neither acted illegally nor arbitrarily in altering the sentence of death of life imprisonment. In the peculiar circumstances of the case, we are not inclined to interfere with the discretion exercised by the High Court, which was justly and fairly exercised by it."
Thus for the foregoing reasons Criminal Appeal No,462 of 2000 is partially allowed and Criminal Appeal No,463 of 2000 is dismissed. As a result whereof conviction of appellant Mirza Zaheer Ahmad under section 302, P.P.C. Is maintained. However, the death sentence is reduced to imprisonment for life with a fine of Rs,2,00,000 (Rs, Two lacs) or in default whereof he would undergo three years' S.I. If fine is recovered it shall be paid to the legal heirs of deceased Tariq Javed as compensation. Benefit of section 382-B, Cr.P C. Is also extended to appellant Mirza Zaheer Ahmad.
14. Above are the reasons of our short order of even date.
Order accordingly.
2003 SCM R 1172 [Supreme Court of Pakistan] Proent: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ ALTAF HUSSAIN SHAH---Petitioner versus PUNJAB SERVICE TRIBUNAL, LAHORE and others---Respondents Civil Petition for Leave to Appeal No,22-L of 1999, decided on 9th May, 2002.
(On appeal from judgment of Punjab Service Tribunal dated 25-10-1998 passed in Appeal No,1209 of 1997).
Punjab Police (Efficiency and Discipline) Rules, 1975--- ----Rr. 4, 5 & 6---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service---Allegation of misconduct---Contention of civil servant was that he was condemned unheard and that no regular enquiry was held---Service Tribunal dismissed appeal filed by civil servant--Validity--- Impugned judgment and record showed that proper procedure under Punjab Police (Efficiency and Discipline), Rules, 1975 had been observed and rules of natural justice had been strictly adhered to---Maximum possible opportunity of defence had been provided to civil servant as he was heard both by appointing authority and appellate forum---No substantial question of law of public importance was made out---Supreme Court dismissed petition in circumstances. [pp. 1173, 1174] A, B & C Sheikh Salahud Din, Advocate-on-Record for Petitioner.
A.H. Maqsood, Advocate Supreme Court for Respondents.
Date of hearing: 9th May, 2002.
' RANA BHAGWANDAS, J.---Petitioner, formerly a Constable in the Police Department at Rajanpur was dismissed from service by Superintendent of Police, Rajanpur on the charge that he alongwith another person was running gambling den. An enquiry was ordered and, after examining witnesses and holding thorough probe into the charge, Enquiry Officer reported about direct involvement of the petitioner in running a gambling den. Petitioner was served with a show-cause notice and afforded an opportunity of personal hearing. After complying with all legal requirements, his services were dispensed with.
2. He preferred a service appeal before the Punjab Service Tribunal (hereinafter referred as the Tribunal) and agitated the grounds that he had been condemned unheard; that no regular inquiry was held and that he was not afforded a chance of being heard. All these contentions were duly considered by the Tribunal and repelled for valid reasons after consulting the record;
3. Learned counsel for the petitioner raised the same arguments, which were advanced before the Tribunal. We have perused the judgment and examined the record, which clearly tends to show that proper procedure under Punjab Police Service (Efficiency and Disciplinary) Rules, 1975 was observed and the rules of natural justice were strictly adhered. It is not correct to say that the petitioner was deprived of reasonable opportunity of hearing that no enquiry was held. He was not only heard by the appointing authority but also by the appellate forum. Indeed maximum possible opportunity of defence was provided to him.
In the circumstances, no substantial question of law of General public importance is made out.
Petition is, therefore, dismissed.