BASHIR AHMAD Versus THE STATE

MUHAMMAD FARRUKH MAHMUD, J. ‑‑‑Through this appeal Bashir Ahmad son of Qasim Ali, appellant has challenged the judgment dated 18‑1‑2001 passed by Mr. Riaz ul Hassan Alvi, Special Judge, (STA) Court, Multan, in case F.I.R. No. 99 of 1997 dated 11‑3‑1997 registered at Police Station Noor Shah, District Sahiwal, for offence under sections 302/201/34, P.P.C. The appellant was convicted under section 302(b)/34, P.P.C. and sentenced to death. A compensation of Rs.1,00,000 was also imposed upon the appellant under section 544‑A, Cr.P.C. In case the amount of compensation could not be recovered, the appellant was to undergo further imprisonment for six months. The appellant was also convicted under section 201, P.P.C. and sentenced to undergo seven year' R.I. A fine of Rs.50,000 was also imposed upon the appellant and in default of payment of fine he was to further undergo simple imprisonment for 18 months.

2. Four persons including the appellant were involved in this case. However, Haq Nawaz and Iqbal Hussan co- accused could not be tried as they remained absconders while Anwar Hussain co- accused lost his life in 3 police encounter, therefore, only appellant faced the trial.

3. The law set in motion on the statement (Exh.PA) of one Muhammad Sarwar, who reported the matter to Shafiq Ahmad, S.I./S.H.O. on 11‑3‑1997 at about 4‑00 p.m. when the latter was present at Adda Bahadar. Shah alongwith other police officials. The formal F.I.R. Exh.PA/1 was recorded by Manzoor Ahmad, Head-constable/Muharrar P.W.1.

4. According to the story as given in the F.I.R. Exh.PA/1 Muhammad Sarwar alongwith Manzoor Ahmad riding on a motorcycle and Mumtaz Hussain alias Manna deceased alongwith Saifraz Ahmad on another motorcycle went to Sahiwal City and while they were returning to their houses and were at Qutab Shahana Road at about 3‑30 p.m. a blue colour Toyota Car without number plate and having a blue light on its roof stopped near the motorcycle, which was being driven by Mumtaz Hussain. It is further stated that Haq Nawaz armed with kalashnikov and Anwar Hussain armed with kalashnikov, who were wearing the police uniforms, were sitting on the front seats of the car, while Bashir Ahmad appellant and Iqbal armed with 222 rifles, who were sitting on the rear seats .of the car, came out and raised Lalkara to teach lesson to Mumtaz Hussain for becoming a witness/complainant in the case against them. Anwar Hussain raised Lalkara that Mumtaz Hussain should be done to death and without considering the beseeching of the P. Ws. the accused fired with their weapons at Mumtaz Hussain deceased on various parts of his body, who died at the spot. The accused extended threat that nobody should come near the dead body of Mumtaz Hussain and after/putting the dead body in the car fled away towards Sahiwal. The motive given in the complaint was that the accused were inimical towards Mumtaz Hussain for the last two years on the basis of certain murders. It was also stated that Mumtaz Hussain deceased was complainant in a case F.I. R. No.164 of 1995 registered under section 392, P.P.C. at Police Station, Sumundry City against Anwar Hussain and other accused.

5. After registration of the case the Investigating Officer reached the spot and collected blood‑stained earth vide memo. Exh.PB, Motorcycle Yamaha belonging to the deceased vide memo. Exh.PC and 232 empties vide memo. Exh.PD. Subsequently, the blood‑stained earth was also recovered from the trunk of the car, vide memo. Exh.PA. All these memos were attested by P.W.4 Sarfraz, Manzoor Ahmad P.W.3 and Muhammad Sarwar complainant, who was not produced. The memos. were prepared by P.W.9 Shafiq Ahmad.

6. The appellant was formally arrested in this case on 23‑9‑1997, who led to the recovery of one 222 rifle P‑1 along with 10 bullets P‑2/1 to 10 on 28‑9‑1997.

These articles were taken into possession vide Exh.PG.

7. After completion of the investigation the appellant was sent up for trial. As he denied the charges, the trial commenced.

8. During trial, .the prosecution produced nine witnesses in total P. W.3 and P. W.4 appeared as eye‑witnesses as well as recovery witnesses for the motive. P.W.9 stated about the investigation. Rest of the witnesses were formal in nature. After submission of the reports of the Chemical Examiner and the Serologist along with the report of Forensic Science Laboratory Exh.P.M. the prosecution closed its case.

9. In statement under section 342, Cr.P.C. the appellant stated that he was roped in the case due to suspicion and the witnesses had deposed against him as they were related to the deceased. He also denied the motive. Neither the appellant appeared as a witness in his defence nor adduced any other evidence.

10. We have heard the learned counsel for the parties and have gone through the record of the case very minutely. The points raised by the learned counsel for the appellant are that the motive as set in the F.I.R. could not be established; that the eye‑witnesses were related to the deceased and were chance witnesses. He has also pointed out certain discrepancies in the statements of the eye‑witnesses and the P.W.3 and P.W.4. He has also argued that no one from the locality was made witness and that the recovered articles were never proved during the trial. He further argued that according to report of the Forensic Science Laboratory Exh. P. M. the recovered empties were not fired by .the rifle allegedly recovered from the appellant.

11. On the other hand, the learned counsel appearing on behalf of the State has vehemently argues that the case against the appellant was proved to the hilt.

12. After perusal of the evidence on record it has been noticed that time of occurrence and the place of occurrence have not been challenged. The matter was reported to the Police without any delay and in that report the name of the appellant was also mentioned. Both the P.Ws. also identified the appellant as accused during trial. It is true that the P.W.3 is uncle while P.W.4 is brother of the deceased. The mere relationship could not be enough to disbelieve the statements of these P.Ws. on Oath. P.W.23 has categorically stated that prior to this murder he had no enmity with Bashir Ahmad appellant. Both the P.Ws. have given a straightforward account of the occurrence and have corroborates each other on all the material points. The discrepancies pointed out by the learner counsel for the appellant are minor. It was suggested to P.W.4 that no previous enmity existed between the appellant and the P.Ws.

13. The occurrence took place at 3‑30 p.m. and the matter was reported to the police at about 4‑00 p.m. The formal F.I.R. was registered at 4‑45 p.m. The distance between the place of occurrence and the police station is about 14 k.ms. It shows that the F.I.R. was registered without any delay and the P.Ws. had no chance to concoct the story. It has been stated that two of the co‑accused namely Haq Nawaz and Anwar Hussain were wearing police uniforms. No such allegation was levelled against the appellant. The upshot of this discussion is that the statements of the P. W. 3 and P. W.4 are worthy of credence and are fully corroborated by the reports of Chemical Examiner and the Serologist.

14. The recovery of the rifle allegedly affected from the appellant cannot be used as a corroborative evidence. According to the report of Forensic Science Laboratory, Exh. P.M the empties recovered from the place of occurrence did not tally with the empties fired by the rifle allegedly recovered from the appellant.

15. The motive as set in the F.I.R. was mainly against Anwar Hussain accused. Lalkara was also attributed to him. Subsequently he lost his life during a police encounter. P.W.4 during his cross -examination stated about his enmity with the appellant but the same was not relating to the same object and the same was not mentioned in the F.I.R., however, it is not necessary to set motive in all murder cases as the circumstances of each case differ from the other.

16. The upshot of the whole discussions is that we have come to the considered conclusion that the prosecution has proven its case through ocular account and the surrounding circumstances against the appellant, therefore, we maintain his conviction under section 302(b), P.P.C. While considering the sentence we have noticed that the dead body was never recovered so as to ascertain whether the deceased lost his life at the spot. Lalkara attributed to Anwar Hussain accused. There are general allegation in the F.I.R. against the appellant and the other co -accused. The motive as set in the F.I.R. also could not be proved vis‑a‑vis the appellant. In these circumstances, we reduce the sentence of the appellant under section 302(b), P.P.C. from death to imprisonment for life. The amount of compensation under section 544‑A, Cr.P.C. is maintained.

17. As far as the conviction under section 201, P.P.C. is concerned it was held in the cases of Muhammad Shafiq and others v. The State (1984 PCr.LJ 2011), Muhammad Bakhsh and two others v. The State (PLD 1988 Lahore 359) and Nasar Khan v. The State (2000 SCMR 130) that when the murderer himself tries to screen the offender and removes the evidence of his guilt, he could not be convicted under section 201, P.P.C. As the appellant was convicted for murder i.e. under section 302(b), P.P.C. he could not be convicted for disappearance of evidence to screen or save himself, his conviction and sentence under section 201, P.P.C. is not maintainable and the same is set aside. We extended the benefit of section 382‑B. Cr.P.C. to the appellant.

18. With the above modifications the instant appeal stands dismissed.

I.B.T./B‑102/L Order accordingly.