MUHAMMAD ANWAR vs The State

ASIF SAEED KHAN KHOSA, J.---Muhammad Anwar appellant had allegedly murdered his brother namely Muhammad Javed. Iqbal by firing at him at 10.45 a.m. on 10.11.2001 in a bazaar in Chak No,200/RB in the area of Police Station Khurrianwala, District Faisalabad and for commission of he said offence the appellant and some others had been booked in case FIR No, 439 registered at the said Police Station on the same day. Some co-accused of the appellant were not even challaned and another co-accused of the appellant was acquitted by the trial court but after a regular trial the appellant was convicted by the trial court for an offence under section 302(b), P.P.C. and was sentenced to death and to pay compensation which conviction and sentence of the appellant were subsequently upheld and confirmed by the High Court. Hence, the present appeal by leave of this Court granted on 23.09.2011.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

3. The occurrence in this case had taken place in broad daylight and an FIR in respect of the same had been lodged within 45 minutes of the occurrence. The place of occurrence was a bazaar full of people at 10.45 a.m. and firearm had been used in the incident in issue and thus, it was not possible for culprit to have gone unnoticed or unseen. The appellant happens to be a real brother of Muhammad Javed Iqbal deceased. Mst Sharifan Bibi complainant (PW7) was of the wife of the deceased whereas the other eye-witness produced by the prosecution namely Zahid Hussain (PW8) was an independent witness. There was no reason available with the said eye-witnesses of falsely implicate the appellant in case of this nature. In his defence advanced by the appellant through his statement recorded under section 342, Cr.P.C. it had been maintained that the above mentioned eye-witnesses were carrying on illicit relations with each other and it were the said witnesses who had killed the deceased but no evidence worth it had name had been produced by the appellant before the trial court and it has, thus, not surprised us to learn that both the courts below had rejected the said defence advanced by the appellant. Post-mortem examination of the dead body of the deceased had been conducted quite promptly and the medical evidence had confirmed the date time weapon and locale of the injury stated by the eye-witnesses. The motive set up by the prosecution had also been B established by it through the mouth of Zahid Hussain (PW8) who was physically present in the panchayat convened in the matter of distribution of property which was the bone of contention in this case and had formed the motive. It may, be true that the alleged recovery of firearm from the appellant's custody during the investigation was legally inconsequential because no crime-empty had been secured from the place of occurrence but at the same time we have felt that failure of the prosecution to prove the alleged recovery did not dislodge the otherwise storing case of the prosecution against the appellant. Both the courts below had undertaken and exhaustive analysis of the evidence available on the record and had then concurred in their conclusion regarding guilt of the appellant having been established beyond reasonable doubt and upon our own independent evaluation of the evidence we have not been able to take a view of the matter different from that concurrently taken by the courts below.

4. We have particularly attended to the 'sentence of death passed against the appellant and in that regard we have observed that Amjad Iqbal PW a son of Muhammad Javed Iqbal deceased statedly present inside the relevant shop with the deceased at the time of occurrence, had not been produced by the prosecution and he had been given up as unnecessary. It could well be that said son of the deceased could disclose before the trial court something which could provide a mitigating circumstance as far as the appellants sentence is concerned. The case in hand was case of a single shot which was not repeated by the appellant. The alleged recovery of the weapon of offence from the appellant's custody had been ruled out of consideration by the courts below and a co-accused of the appellant attributed firing at the spot had been acquitted by the trial court. We have further observed in the context of the appellant's sentence of death that according to the FIR itself the deceased had an exchange of abuses with his own father, who was the appellant's father as will, about 15 days prior to the present occurrence. In his capacity as son the appellant must have taken an affront to such abuses hurled at his father by Muhammad Javed Iqbal deceased and that showed that some act on the part of the deceased himself had contributed towards his murder and in all likelihood he had asked for it. We have, therefore decided to exercise caution in the matter of the appellant's sentence.

5. For what has been discussed above this appeal is dismissed to the extent of the appellant's conviction for the offence of murder recorded and upheld by the courts below but the same is partly allowed to the extent of the appellant's sentence of death which sentence is reduced to imprisonment for life. The benefit under section 382-B, Cr.P.C. shall be extended to him. The order passed by the trial court in respect of payment of compensation by the appellant as well as the order in respect of imprisonment in default of payment of compensation are however, maintained with the modification that in case of failure of the appellant to pay compensation he shall undergo simple imprisonment for six months instead of rigorous imprisonment ordered by the trial court.

This appeal is disposed of in these terms.