MUHAMMAD ASHRAF Versus State
HASSAN RAZA PASHA, J .---The appellant, Muhammad Ashraf has challenged the judgment dated 8-5-2006 passed by learned Additional Sessions. Judge, Jhelum in case F.I.R. No.4 dated 20-1-2004 registered under section 302/34, P.P.C. at Police Station, Lilla District Jhelum through Criminal Appeal No.196 of 2010, whereby he has been convicted under section 302(b), P.P.C. and sentenced to death with payment of compensation of Rs.100,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. recoverable as arrears of land revenue, in default whereof to undergo S.I. for one year. The learned trial Court has also submitted Murder Reference No.491 of 2006 seeking confirmation of death penalty or otherwise. As both the matters are interlinked and interconnected so are being taken up together.
2. Briefly stated the prosecution version as set forth in the complaint of Exh.PD is that on 204-2004 at about 7-00 P.M. brother of complainant Muhammad Hayat who was running a weighing scale was going to his house after its closure. When he reached near the house of Noor Muhammad Mochi three unknown persons came running towards him, out of whom one person fired at Muhammad Hayat with pistol, which hit him on his belly and made exit from the other side. Brother of complainant fell down after sustaining injury but due to darkness he could not identify the accused persons. The motive was not stated in the complaint. Initially the case was registered under section 324/34, P.P.C. However after the death of Muhammad Hayat, section 302, P.P.C. was added on 23-1-2004. On 24-1-2004 the complainant submitted another application Exh.D-D stating that at the time of lodging of F.I.R. he could not bring on record the complete facts. He stated that actually Muhammad Ashraf, Muhammad Asghar and one unknown person committed the murder of his brother. The motive was stated to be that Muhammad Ashraf was dealing in husk and he used to compel brother of complainant to issue receipt having written more weight but Muhammad Hayat did not pay any heed to it due to which Muhammad Ashraf was annoyed.
3. The deceased Muhammad Hayat also got recorded his statement Exh.P-K before his death to the effect that on the fateful day Muhammad Ashraf came to his weighing scale and stated that he had not supported Talli brotherhood in murder of Afzal Talli and there is no need of a good person. After sunset he along with Ghous were going to their house: Ghous remained behind and when he reached near the house of Noor Muhammad Mochi, Umar Hayat and Ghulam Abbas were also coming in the same street from southern side. Three persons came from behind who were identified as Muhammad Ashraf (appellant) and Muhammad Asghar, however, one person was not identified. Muhammad Ashraf made firing at Muhammad Hayat with pistol from very close range with the intention to kill him. The other two persons were also his supporters.
4. After investigation the appellant Muhammad Ashraf was sent up to face trial. He was formally charged to which he pleaded not guilty and claimed trial. The prosecution produced as many as 15 witnesses in support of its version.
5. The ocular account was furnished by Khizar Hayat P.W.10, Ghulam Abbas P.W.11 and Umar Hayat P.W.12. The medical evidence was adduced through Dr. Muhammad Ali and Dr. Zulfiqar Sherazi who appeared as P.W.3 and P.W.8 respectively. Dr. Muhammad Ali P.W.3 medically examined Muhammad Hayat when he was brought to the hospital in injured condition. He found following injuries on his person:
(i) An oval wound of about 2 x 1 cm, margins were everted. No tattooing, blackening or burning was present, wound was present in epigastric region about 12 cm above the umbilical correspond ing cuts in the clothes were present, clothes were marked and handed over to police X-ray was advised.
(ii) An oval wound of about 1 x 1/2 cm, margins were inverted burning and tattooing was present, wound was present in the left side of lumber region in the lower costal area few centimeter away from the posterior axillary line. Corresponding cuts were also present on the clothes, marked and handed over to the police. X-ray was advised.
Dr. Zulfiqar Sherazi P.W.8 conducted postmortem examination of the dead body of deceased Muhammad Hayat on 23-1-2004 and according to his opinion the injuries described in MLR No.2 of 2004 and Postmortem Report No.1 of 2004 caused internal haemorrhage and shock and gangrene (synergistic) formation of tissue was sufficient to cause death, however, according to surgical reports dated 12-2-2004 received from DHQ Hospital Rawalpindi there were multiple perforation in the transverse colon splenic flexure of colon, desending colon, retro sigmoid region mesenteric lears. Gross fecal contiminatioal caused sepses and synergistic gangrene. Those perforation were stitched and colostomy was done. Those injuries with gangrene formation was sufficient to cause death in ordinary course of nature. The probable time between injury and death was within three days and between death and postmortem examination was six to eight hours.
5A. The investigation was conducted by Muhammad Bukhsh S.-I. who appeared as P.W.14. He recorded complaint of the complainant Exh.P-D, injury statement of deceased Exh.PC/2, statement of injured Muhammad Hayat Exh.PK. He also took into possession blood stained clothes of injured through memo Exh.P-A, prepared rough site plan Exh.PL, secured blood-stained earth through memo Exh.PJ, recorded statements of the witnesses. He also moved application Exh.P-M to the M.O. DHQ Hospital and obtained his report. Subsequently investigation was entrusted to Bahli Khan who appeared as P.W.13. He formally arrested the appellant, obtained his physical remand, took into possession pistol P-4 along with three live bullets P-F/1-3 through memo. Exh.P-H and prepared site plan of place of recovery Exh.P-H/1.
6. The appellant Muhammad Ashraf in his statement under section 342, Cr.P.C. in response to question No.11 replied as under:
"All the P.Ws. are relatives inter se. No independent witness has appeared from the alleged place of occurrence. The alleged place of occurrence is situated in thickly-populated area.' The prosecution is silent who took the injured (deceased) to the hospital. In fact deceased was injured in the house of unknown person in the same locality where the alleged occurrence took place and the prosecution has deliberately after consultation involved me and my brother in this false case. In fact deceased was not a man of good character. He was womanizer and he used to indulge in the activities of womanizing. In fact he was injured by some person on the basis of Ghairat and the prosecution had deliberately hidden that fact and with the connivance of the police had registered this false case against me and my brother. I am relative of Muhammad Afzal Talli (deceased) of other case and the prosecution witnesses are inimical to said Muhammad Afzal for that reason they have falsely involved me and my brother in this case."
The appellant did not opt to appear on oath in disproof of allegation levelled against him, however, he produced documents in defence. Learned trial Court after conclusion of trial convicted and sentenced the appellant as stated above.
7. Learned counsel for the appellant in support of this appeal contends that F.I.R. was got registered by P.W.10 Khizar Hayat who is real brother of the deceased and in that F.I.R. nobody was named, as an accused person; that the statement of Khizar Hayat was recorded by the police on 20-1-2004 at 8-45 p.m. at RHC Lilla and thereafter the said P.W. made a supplementary statement wherein the appellant is nominated but that supplementary statement carries no value as it is belied by the circumstances of the `Case; that similarly statements of other two P.Ws namely Ghulam Abbas P.W.11 and Umar Hayat P.W.12 also carry no weight because their statements were recorded, as per Police Officer, on 21-1-2004 but this fact is belied from another circumstance that in the inquest report Exh.P-N in the column meant for "Mukhtasir Halat e-Muqadma" which was prepared on 23-1-2004 same facts are mentioned, which were mentioned in the F.I.R., which clearly suggests that at till time the Investigating Officer had not recorded statement of the above said persons and even the supplementary statement of the complainant. As far as the statement made by Muhammad Hayat (deceased) is concerned learned counsel contends that the statement of complainant was recorded at 8-45 p.m. on 20-1-2004 whereas, as per Investigating Officer, the statement of deceased was recorded at 8-40 p.m. which means that in fact no statement of the deceased was recorded and it was manipulated by the police; that the recovery of pistol from the appellant is of no avail for the prosecution because no empty was recovered from the spot and there is no report of Fire-arm Expert; that in the F.I.R. no motive is alleged against the appellant and even in the statement of deceased no motive is attributed to the appellant; that there is conflict between the ocular account and medical evidence, as injury on the front of deceased is in fact an exit wound whereas the complainant and the other P.Ws have stated that the deceased was fired at from the front side; that there is tattooing around the wound, which suggests that the shot was fired from very close range whereas the P.Ws have stated that the deceased was fired at from five feet.
8. On the other hand learned A.P.-G. assisted by learned counsel for the complainant opposes this appeal on the grounds that there is no reason for false implication of the appellant in this case; that the ocular account furnished by P.W.10, P.W.11 and P.W.12 is natural and it finds support from the medical evidence available on the record and moreover there is statement of the deceased, which was recorded by the Investigating Officer when he was in injured condition and that the statement was proved by him, which is on the file as Exh.P-K wherein the appellant is specifically named as the person who fired at the deceased and it has not been disputed by the appellant's side by suggesting that no such statement was recorded rather there is a suggestion on behalf of appellant that said statement was recorded and as such the prosecution has proved its case. Further-more there is no conflict between the ocular account and the medical evidence as per MLR Injury No.2 is the entry wound and not the Injury No.1.
9. We have heard the arguments of both the sides in this case and perused the record with the able assistance of learned counsel for the parties.
10. The occurrence took place on 20-1-2004 at 7-00 p.m. while the matter was reported to police at 9-00 p.m. through the statement of complainant Exh. P-D. The distance between the place of occurrence and Police Station is 200 yards. In the F.I.R. no one is mentioned as an accused person rather it has been stated that some unknown person has murdered the brother of the complainant and even in the F.I.R. there is no mention that the complainant has got any information about this incident. Subsequent to this statement his supplementary statement was recorded on 24-1-2004 wherein the appellant is mentioned as an accused person along with others and even a motive has been set up. Two other witnesses i.e. Ghulam Abbas P.W.11 and Umar Hayat P.W.12 also claimed to have witnessed the occurrence but evidence of the complainant and these two P.Ws. Nos.11 and 12 is of no avail for the reason that:
(i) The complainant did not name any person in the complaint which became basis for registration of the case;
(ii) The statements of P.Ws. Nos.11 and 12 even as per prosecution were recorded on 21-2-2004 but in the inquest report, which was admittedly prepared by the I.O. on 23-1-2004 in the column meant for "Mukhtasir Halat-e-Muqadma" same facts are mentioned as were mentioned in the F.I.R., which clearly shows .that by that time the police had not recorded the statement of any other person.
11. Now the only evidence left in the field is the statement of deceased, which he made before the police when he was injured. His statement was recorded by a Police Officer who subsequently appeared as P.W.14 and proved his statement as Exh.P-K. The said witness was cross-examined at length but he remained strict to the point that he recorded the said statement and even he was not suggested that he did not record the statement of deceased. So in the circumstances the statement of the deceased, which he made in an injured condition has now become dying declaration. It is not necessary that the dying declaration be made before a specific person. We are guided by the Hon'ble Supreme Court of Pakistan. In a judgment reported as 2010 SCMR 55 at page 59 it has been observed as under:--
"It is well-settled principle of law that if dying declaration is made even before a private person, is free from influence and the persons before whom such dying declaration was made was examined then it becomes substantive piece of evidence and for that no corroboration is required and such declaration can be made basis of conviction."
We have examined this statement, which inspires confidence. In that statement appellant is specifically named as the person who fired at the deceased with pistol. Though the recovery of pistol from the appellant is of no avail for the reason that no empty was taken into possession from the spot but this sole statement, in the circumstances is sufficient for main taining the conviction of appellant under section 302(b), P.P.C. However as far as the sentence is concerned we have noted that there are mitigating circumstances:
(i) that the appellant fired only one shot;
(ii) that there is no deep-rooted enmity between the appellant and the deceased and even the motive set out in the supplementary statement of the complainant Ex.D-D and in the statement of the deceased Exh.P-K are altogether different.
Moreover as far as quantum of sentence in case of Qatl-e-amd is concerned, the Hon'ble Supreme Court of Pakistan has observed in PLD 2007 SC 111 as under:
"The difference of punishment for Qatl-e-amd as qisas and tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of qisas, Court has no discretion in the matter of sentence whereas in case of tazir Court may award either of the sentence provided under section, 302(b), P.P.C. and exercise of this discretion in the case of sentence of tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-e-amd, keeping in view the circumstances of the case, may award the offender the punishment of death or imprison ment of life by way of tazir. The proposition has also been discussed in Ghulam Murtaza v. State 2004 SCMR 4, Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203, Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338."
12. Considering the facts and circumstances of the case and the case-law referred above this is not a case of capital' punishment. Therefore, while main taining the conviction of appellant under section 302(b), P.P.C. we reduce his sentence to imprisonment for life; benefit of section 382-B, Cr.P.C. is also extended and other sentence of compensation and imprisonment in default thereof awarded by the learned trial Court is also maintained. The murder reference is answered in the negative.
N.H.Q./M-415/L Sentence reduced.