ABDUR REHMAN alias BOOTA and anothers vs THE STATE and another

' CH. IJAZ AHMED, J.---We intend to decide the above mentioned Criminal Appeals by one consolidated judgment having similar facts arising out of the common impugned judgment.

2. Facts as mentioned in para 3 of the impugned judgment are reproduced hereunder:-- "The occurrence took place on 23-9-2000 at about 2 p.m. On a thoroughfare- in mauza Fatehpur Afghanan at a distance of 4 kilometers towards east from Police Station Noor Kot. According to the prosecution Azhar Qayyum alias Kala deceased was a police constable who worked in the special branch at Shakargarh. On the day of occurrence he was taking his breakfast when his nephew, a child (son of Mst.Tahira Bibi sister of the appellant) went there. Mst. Tahira Bibi got annoyed which gave rise to petty dispute. Azhar Qayyum alias Kala deceased after taking breakfast left for Shakargarh to attend to his duty. At about 12-30 p.m. He returned to his house and took his meal.

He was about to go to his tube-well when his younger son started crying. He picked up his son, when (sic) to a shop and returned to his house after a short while after purchasing some articles for his son. In the meantime Abdur Rehman alais Boota appellant brother of Mst. Tahira Bibi had also come there and was sitting with his sister. Azhar Qayyum alias Kala deceased greeted the appellant who immediately got up and struck his head on the forehead just above the left eye of Azhar Qayyum alias Kala deceased. The ladies present in the house intervened. Abdur Rehman alias Boota appellant went to his house. Azhar Qayyum alias Kala deceased also proceeded towards his tube-well carrying fuel with him. He was just in front of the shop of Aslam Khan when all of a sudden Abdul Rehman alias Boota appellant armed with .222 bore rifle came from the front side and fired hitting Azhar Qayyum on his chest. The later fell and died at the spot. Abdur Rehman fired 2/3 more shot and ran away. The occurrence was witnessed by Ghulam Abbas, Ghulam Hussain and Shamoon Khan complainant. Shortly thereafter Muhammad Yousaf S.-I/SHO P.W,.12 reached the village. He found the dead body of Azhar Qayyum alias Kala lying in his house which was near the place of occurrence. He recorded the statement of Shamoon Khan complainant Exh.

PD at 4 p.m."

3. The investigating agency investigated the matter and submitted challan before the competent Court. After completing legal formalities, the learned Additional Sessions Judge Sharkargarh, District Narowal, vide its judgment dated 18-3-2002 convicted and sentenced Abdur Rehman alias Boota and awarded him death sentence under section 302(b), P.P.C. With a compensation of Rs, one lac under section 544-A, Cr.P.C. To be paid to the legal heirs of Azhar Qayyum, deceased. In case of default, he will have to further undergo R.I. For six months. Convict being aggrieved filed Criminal Appeal No, 404 of 2002 before the Lahore High Court, Lahore, wherein the learned High Court had altered his conviction from section 302(b), P.P.C. To section 302(c), P.P.C. And sentenced him to 14 years R.I. With benefit of section 382-B, Cr.P.C. But maintained payment of compensation under section 544-A, Cr.P.C. Convict being aggrieved filed Criminal Petition No, 142-L of 2007 whereas the complainant Shamoon Khan filed Criminal Petition No,69 of 2007 which were fixed before this Court on 24-7-2007 and leave was granted in the following terms:- "The reasons which had weighed with the learned High Court in discarding the ocular testimony require re-examination. Consequently, Criminal Petition No, 69 of 2007 filed by Shamoon Khan complainant is allowed and leave is granted for the purpose.

' Since we have allowed leave to the complainant, therefore, Criminal Petition No, 142-L of 2007 filed by the convict is also allowed and leave is granted to him also."

4. Learned counsel for the convict did not press the appeal on the ground that during the pendency of the appeal the convict has suffered the sentence awarded to him and consequently he has been released from the jail.

5. Learned counsel for the complainant submits that the learned High Court had erred in law to alter the sentence of the convict from section 302(b), P.P.C. To 302(c), P.P.C. He further maintains that the learned High Court had erred in law to discard the ocular testimony of Shamoon Khan (P.W.10) and Ghulam Hussain (P.W.11) merely on surmises and conjectures whereas the learned trial Court had accepted the veracity of the eye-witnesses with cogent reasons.

6. The learned Deputy Prosecutor General has supported the impugned judgment.

7. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. The learned High Court had re-examined evidence on record and discarded the evidence of the eye-witnesses of the occurrence, namely, Shamoon Khan (P.W.10) and Ghulam Hussain (P.W.11) with cogent reasons. It is pertinent to mention here that Mst. Rahat Bibi (P.W.9) is the witness of the first occurrence as mentioned and highlighted in the narration of facts mentioned herein above but she did not mention the names of the eye-witnesses in her statement. The learned High Court had given finding of fact after re-appraisal of evidence in accordance with law and also appealed to the common sense and logic as evident from paragraphs 9 to 12 of the impugned judgment. It is better and appropriate to reproduce para 11 of the impugned judgment to resolve the controversy between the parties:-- "In the light of the above discussion we are of the considered view that both the eye witnesses were not present at the spot and Mst. Rahat Bibi P.W.9 rightly omitted to mention their presence at the spot when she reached immediately after the occurrence. Thus the ocular account furnished by the two witnesses cannot be safely relied upon."

8. In the interest of justice and fair play we have also re-examined the evidence on record with the assistance of the learned counsel of the parties and come to the same conclusion after re- appraisal of the evidence that eye witnesses were not present on the spot, therefore, the learned High Court was justified to ignore their statements. The convict was convicted in terms of his statement under section 342, Cr.P.C. Therefore, the learned High Court was justified to alter the conviction of the convict from under Section 302(b), P.P.C. To section 302(c), P.P.C. It is settled principle of law that statement of the accused has to be accepted or rejected as a whole when entire prosecution evidence disbelieved as the eye witnesses were not present at the spot, then conviction under section 302(b), P.P.C. Altered to section 302(c), P.P.C. And sentence of death awarded by trial Court was reduced to 14 years' R.I. By the learned high Court was not against the law laid down by this Court in various pronouncements. See:--

(i) Sattar Khan's case (1984 SCM R 678)

(ii) Ghulam Qadir's case (1991 SCM R 61)

(iii) Faiz's case (1983 SCM R 76)

9. In view of what has been discussed above we do not find any infirmity or illegality in the impugned judgment. Consequently these appeals have no merits and the same are dismissed with no order as to costs.