MUHAMMAD MUSHTAQ vs The STATE

1. MANZOOR AHMAD MALIK, J.---Muhammad Mushtaq (appellant) along with his co-accused was indicted in case FIR No.187/1997 dated 12.08.1997 offence under sections 302, 324, 148 and 149, P.P.C. registered at Police Station Barki, District Lahore for Qatl-iamd of Shahbaz and Waris both sons of the complainant and launching a murderous assault upon Manzoor Ahmad a cloth vendor. Vide judgment dated 26.07.2002, he was convicted under section 302(b), P.P.C. for the murders of Waris and Shahbaz (deceased) and sentenced to death on two counts. He was also ordered to pay compensation amount of Rs.1,00,000/- (rupees one lakh only) on each count to the legal heirs of both the deceased and in alternative he was directed to undergo S.I for two years. Co-accused of the appellant namely Asif alias Assa was also convicted under section 302(b), P.P.C. and sentenced to imprisonment for life on two counts. He was also directed to pay compensation amount of Rs.1,00,000- (rupees one lakh only) to the legal heirs of both the deceased and in alternative he was to undergo S.1 for two years. Said co-convict of the appellant was extended the benefit of Section 382-B, Code of Criminal Procedure. Five co-accused of the appellant namely Muhammad Younas, Muhammad Hafiz, Muhammad Nazir, Muhammad Rashid and Muhammad Idrees were acquitted of the charge by giving them benefit of doubt.

2. 2.Feeling aggrieved by the judgment passed by the learned trial court the appellant filed Criminal Appeal No:1419 of 2002 against his conviction and sentence: Co-convict of the appellant namely Muhammad Asif alias Asa filed Crl. Appeal No.1418 of 2002. Fazal Illahi complainant filed Criminal Revision No.1022 of 2002 for enhancement of the sentence awarded to Muhammad Asif alias Assa co-convict of the appellant whereas the learned trial court sent Murder Reference No.658 of 2003 for confirmation or otherwise of the sentence of death awarded to Muhammad Mushtaq alias Piddi (convict). All these matters were heard together by a learned Division Bench of Lahore High Court Lahore and through the impugned judgment appeal filed by the appellant was dismissed. Murder Reference sent by the learned trial court was answered in the affirmative and his death sentence was confirmed. Criminal Appeal No.1418 of 2002 filed by co-convict of the appellant was allowed and he was acquitted of the charge. Criminal Revision No.1022 of 2002 filed by the complainant for enhancement of the sentence awarded to co-convict of the appellant namely Muhammad Asif alias Asa was also dismissed.

3. 3.Feeling still dissatisfied Muhammad Mushtaq alias Piddi preferred Crl. Petition No.474-L of 2009 wherein leave to appeal was granted vide order dated 07.04.2009 to re-appraise the entire evidence for the safe administration of criminal justice. Hence this appeal.

4. 4.At the very outset, learned counsel for the appellant submitted that she would not challenge conviction of the appellant, however, the case against the appellant does not call for capital punishment as only one specific firearm injury was attributed to the appellant, motive was not proved and recovery of .12 bore pump action gun at the instance of the appellant is inconsequential because the crime empties were received in the office of Forensic Science Laboratory after the arrest of the appellant.

5. 5.In the interest of justice, we have gone through all the relevant record with the assistance of learned counsel for the appellant as well as learned Additional Prosecutor General Punjab for the State.

6. In the FIR, which pertained to a daylight occurrence, Muhammad Mushtaq alias Piddi (appellant) has been attributed firearm injury in the chest of Shahbaz (deceased). Thereafter general firing was also attributed to the appellant as well as his co-accused on the other deceased namely Waris. Ocular account furnished by Fazal Elahi (complainant PW.1), Muhammad Rafique (PW.2) and Ghulam Nabi (PW.3) is fully supported by the medical evidence furnished by Dr. Azhar Masood Bhatti (PW.10) and Dr. Allah Bakhsh Maitla (PW.11). Therefore, we hold that the prosecution successfully brought home guilt against the convict to the hilt. But at the same time it is not a case of capital punishment because no definite findings qua motive behind the occurrence were recorded by the learned appellate court. The alleged recovery of .12 bore pump action gun at the instance of the appellant and positive report of Forensic Science Laboratory is inconsequential because the crime empties as well as the 12 bore pump action gun were received in the office of Forensic Science Laboratory on the same day i.e. 29.12.1997. According to the testimony of Muhammad Saeed S.I (PW.12) Muhammad Mushtaq alias Piddi (appellant) led to the recovery of .12 bore pump action gun on 07.09.1997. It is well settled by now that if some doubt arises in prosecution case the same may also be taken as a mitigating circumstance while deciding the quantum of sentence of a convict. Therefore, this appeal is partly allowed and the sentence of death awarded to Muhammad Mushtaq alias Piddi (appellant) is altered to imprisonment for life on two counts. The amount of compensation is maintained. However, in default of the payment of compensation amount the appellant will suffer simple imprisonment for six months on two counts.

6. Sentence of imprisonment for life on both the counts shall run concurrently to each other. The appellant is extended the benefit of section 382-B, Code of Criminal Procedure.