KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No. 1169 of 1998 filed by Nazir Hussain, appellant who was convicted under section 302(b) and sentenced to death with further direction to pay Rs.50,000 as compensation, in default six months' R.I. By learned Additional Sessions Judge, Lahore, vide judgment dated 2-12-1998.
Murder Reference No.436 of 1998 for confirmation or otherwise of the convict Nazir Hussain shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 5-30 p.m. On 17-6-1996 within the revenue estate of Pind Jallo at a distance of 4 kilometres from Police Station Batapur, District Lahore while the matter was reported to the police at 8-00 p.m. At P.1 Kheray on the same night by Shaukat Ali through written complaint Exh.P.A. And formal F.I.R. Exh.P.A./1 was recorded by Zulfiqar Ali, A.S.-I.
3. Briefly stated the facts of the case are that at 4-00 p.m. On 17-6-1996, Shaukat Ali, the complainant alongwith his brother Ashiq Ali, nephew Abdul Hameed and Muhammad Nawaz, brother from brotherhood went to have the share of Batai. After being free at about 5-30 p.m., they were coming back to their houses. When they reached in front of the house of Muhammad Boota and the complainant and Ashiq, his brother were a little behind while Abdul Hameed and Muhammad Naw az were ahead of them. Nazir Hussain armed with dagger, Munir Hussain armed with a Chhurri and Naveed Hussain empty-handed came. Naveed Hussain raised Lalkara that the complainant party should be taught a lesson for having a case registered against them for theft.
Upon this, Naveed took Abdul Hameed into his Jhapha while Nazir Hussain caused a dagger blow which hit on the front side of his chest. Muhammad Nawaz tried to rescue Abdul Hameed but he was given Chhuri blow by Munir Hussain which hit on his left hand finger and blood started oozing.
The complainant and Ashiq tried to save Abdul Hameed but the accused while raising Lalkaras ran away. The injured in his way to hospital succumbed to his injuries.
The motive alleged was that six months prior to the occurrence, a case regarding theft of buffalo was got registered against Nazir Hussain by Abdul Hameed.
4. Investigation of the case was taken over by Muhammad Sharif, S.-I. (P.W.11). He, after registration of the formal F.I.R. Went to hospital where the dead body of the deceased was lying, prepared injury statement Exh.P.G., inquest report Exh.P.F., then he went to the place of occurrence, prepared site plan Exh.P.K., collected blood with cotton from the Emergency Ward of Mayo Hospital, Lahore and took the same into possession vide memo. Exh.P.L. And on 3-7-1996 arrested Nazir Hussain, Munir Hussain and Naveed Hussain. On 10-7-1996 Nazir Hussain while in custody led to the recovery of knife which was taken into possession vide memo. Exh.P.E. After completion of the investigation, all the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 11 witnesses in all. Then the learned A.P.P. Tendered in evidence reports of the Chemical Examiner Exh.P.L., Exh.P.O., reports of the Serologist Exh.P.P., Exh.P.Q. And closed the case of prosecution. After that statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. However, after conclusion of the trial, the accused were convicted and sentenced as stated above.
6. Learned counsel for the convict appellant submits that though a specific motive was set up by the prosecution but it has remained unproved rather was shrouded in mystery. It is added that the F.I.R. Which was the cause of motive was registered 6 months prior to the occurrence and during this period, no untoward incident had taken place though both the parties remain in the same village. Further submits that majority of the prosecution story has been disbelieved by the trial Court because during the course of investigation it was proved that Munir Hussain acquitted- accused did not cause any injury to Muhammad Nawaz, the injured, P.W. Adds that even Muhammad Nawaz the injured as to with which weapon he was caused injuries and he also did not correctly mention the seat of his injury. Further adds that even the trial Court has disbelieved Muhammad Nawaz qua his own injury. Further elaborates that the medical examination of the injured was conducted with a delay though he was present in the hospital.
As to recovery, learned counsel submits that the knife was allegedly recovered on the pointation of the appellant after 23 days and no independent witness was associated though according to Investigating Officer, many other persons were available at the spot at the time of recovery and more--over the recovery was effected after sun set. No independent person was joined to witness the recovery proceedings.
Concluding his submissions learned counsel submits that if the submissions made by him do not find favour with the Court, then it is not a case of capital punishment as there are mitigating circumstances in the shape of motive and being a case of single shot.
7. Learned counsel for the State submits that though the prosecution has been successful in proving its case against the appellant but there is mitigating in the shape of motive and being a case of single shot.
8. Learned counsel for the complainant submits that it was a day time occurrence, there was no question of mistaken identity; there was no background of enmity to falsely implicate the appellant; ocular account is fully corroborated by the medical evidence; the injury caused by the appellant was so serious that it damaged all the internal organs of the deceased; motive has been duly proved and that there is no mitigation in favour of the appellant. He supports the judgment of the trial Court.
9. We have heard learned counsel for the parties and have gone through the evidence recorded by the trial Court. Eye--witness account in this case was furnished by Shaukat Ali who is uncle of the deceased, and Muhammad Nawaz who is from the brotherhood (P.Ws.1 and. 2 respectively) while the post-mortem examination on the dead body of deceased was conducted by Dr. Aamir Bashir (P.W.5) at 8-45 p.m. On 18-6-1996. The ocular account is fully corroborated by medical evidence.
Learned counsel for the defence failed to point out any contradiction between eye-witness account and the medical evidence.
There was no previous background of enmity between the parties so there was no question of false implication. There was only one injury on the person of the deceased which was attributed to the present appellant. Naveed Hussain co-accused of the appellant was empty-handed. He was ascribed the role of Lalkara and having caught the deceased into his Jhapha while Nazir Hussain caused dagger blow on the person of the deceased. He alongwith Munir Hussain accused was acquitted by the trial Court because the trial Court has disbelieved the testimony of Muhammad Nawaz, the injured P.W. Criminal Appeal No.1241 of 1998 filed by the complainant against the acquittal of Naveed and Munir accused was dismissed by a D.B. Of this Court, on 3-5-1999.
Occurrence had taken place at 5-30 p.m. On 17-6-1996 while the matter was reported to the police at 8-00 p.m., the same night and the formal F.I.R. Exh.P.A./1 was recorded at 8-05 p.m., so it was a case of promptly lodged F.I.R. And the question of due deliberation and consultation does not arise.
The overall analysis of the above discussion is that the prosecution has been successful in proving its case against the appellant Nazir Hussain to its hilt through ocular account having come from an unimpeachable source which is fully corroborated by medical evidence.
The motive alleged in this case was that six months prior to the occurrence a case was registered against Nazir Hussain etc. For the theft of buffalo of Abdul Hameed, the deceased. No such F.I.R.
Was ever brought on record. Even the Investigating Officer .Had admitted that no evidence whatsoever was produced before him to prove the motive.
Moreover, the occurrence had taken place 10 feet away from the house of appellant and it seems that something happened before the present occurrence which has been concealed by the prosecution. It is settled that when prosecution puts a specific motive, a duty is cast upon the prosecution to prove the same while in the instant case, the prosecution failed to prove the motive rather it remained shrouded in mystery. Learned counsel for the State has also conceded that motive in this case remained unproved. There was only one injury on the person of the deceased and the blow was never repeated. As far as recovery of knife at the instance of the appellant is concerned, no independent witness was produced by the prosecution though independent witnesses were available at the time of alleged recovery as has been admitted by the Investigating Officer, so there is also clear violation of section 103, Cr.P.C. In the case of Muhammad Arshad and 2 others v. State PLD 1996 SC 122 their lordships of the Honourable Supreme Court converted the sentence of death into imprisonment for life, treating no background of previous enmity or deep- rooted hostility between the appellant and the deceased and that the accused fired a single shot and did not repeat the same as extenuating circumstances. Following .The dictum laid down by the Honourable Supreme Court, we treat the motive which was specifically alleged by the prosecution but not proved rather remained shrouded in mystery and that it was a case of single shot and that there is clear violation of section 103. Cr.P.C. To be extenuating circumstances and though maintain the conviction under section 302(b), P.P.C. But reduce the sentence from death to imprisonment for life with the benefit of section 382-B, Cr.P.C. The sentence of six months' R.I. For non--payment of amount of compensation is converted into six months' S.I. The death sentence of Nazir Hussain, appellant is NOT confirmed and murder reference is replied in the NEGATIVE. 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.