MUHAMMAD MUNIR Versus State
SADAQAT ALI KHAN, J.--- This single judgment shall dispose of Criminal Appeal No. 440 of 2010 filed by Muhammad Munir present appellant and Murder Reference No.18 of 2011 sent by the trial court for confirmation of the death sentence of appellant or otherwise as both matters have arisen out of the same judgment dated 4-12-2010 passed by learned Additional Sessions Judge, Bahawalpur according to which the present appellant was convicted and sentenced as under:--
"Muhammad Munir was convicted under section 302(b), P.P.C. and sentenced to death for committing Qatl-i-amd of Muhammad Sharif deceased along-with payment of compensation Rs.1, 00, 000 to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof six months S.I."
Whereas his co-accused namely Muhammad Shabbir and Bashir Ahmed were acquitted by the learned trial court in case FIR No. 191 dated 21-4-2008 under section 302/34, P.P.C. police station, Khairpur Tamewali District Bahawalpur.
2. The facts of the case has been stated by Abdul Aziz complainant/P.W.5 in his statement before the trial court and same statement is hereby reproduced for narration of the facts:--
"We have land in Mouza Chandrani. On 21-4-2008 I along with Mst. Sarwar Bibi my mother, Muhammad Rafique, Abdul Rehman, my brother Muhammad Sharif went to our land, at morning time. My brother Muhammad Sharif and my mother Sarwar Bibi were demolishing the joint wall adjacement to our dera. About the wall, one day prior an altercation took place between us and Bashir Ahmed etc. Bashir Ahmed etc. pointed out to us the place where the wall was to be made. Hence, the wall was being demolishing so that the same may be made at the pointed place. I Muhammad Rafique and Abdul Rehman were working in the field nearby the wall. At about 09:45 a.m. Muneer Ahmed made a fire in his previous courtyard. Having the voice of fire my brother Muhammad Sharif and my mother Sarwar Bibi run towards us. We rushed towards both of them. We saw that Bashir Ahmed accused empty handed, Shabbir Goonga accused empty handed and Munir Ahmed armed with 12-bore gun double barrel (all the accused present in the court) were chasing my brother and my mother. Bashir Ahmed raised a lalkara and asked to make a fire. My brother Sharif turned to back to see there. Munir Ahmed accused made a fire from his gun which hit my brother Muhammad Sharif on his left eye. My brother Muhammad Sharif fell down and succumbed to the injury. We tried to catch hold the accused. We caught Munir Ahmed accused along with his gun. Bashir Ahmed and Shabbir accused succeeded to get the custody of Munir accused from us. During the scuffle butt of the gun of Munir accused was broken. We snatched the gun from the possession of Munir accused. All the accused decamped from the scene of occurrence. During the scuffle Bashir accused was injured".
3. After registration of the case, investigation started and on completion of the investigation report under section 173, Cr.P.C. was submitted in the trial court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 30-7-2008 against present appellant Muhammad Munir and his co-accused Muhammad Shabbir and Bashir Ahmed under sections 302/34, P.P.C. to which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Ahmed Yar Patwari, P.W.1, Nasir Iqbal Constable P.W.2, Dr. Shafique Ahmed MO P.W.3, Sajjad Ahmad Constable P.W.4, Abdul Aziz P.W.5, Abdul Rehman P.W.6, Shahid Bashir H. C P.W.7, Taufeeq Hussain SI P.W.8, Ghulam Murtaza ASI P.W.9, Akmal Rasool Nadir Inspector P.W.10, whereas P.Ws. Muhammad Rafique and Mst. Sarwar Mai were given up by the prosecution being unnecessary and tendered in evidence site plan Exh.PA, recovery memo of last worn clothes of the deceased Exh.PB, post mortem report Exh.PC, injury plan Exh.PD, statement of Abdul Aziz Exh.PE, inquest report Exh.PF, recovery memo of Bandooq Exh.PG, injury plan Exh.PM and Exh.PN, report of Chemical Examiner Exh.PQ, report of FSL Exh.PR and closed the prosecution evidence.
6. Medical evidence was furnished by Dr. Shafique Ahmed, P.W.3, M.O THQ Hasilpur who stated that on 21-4-2008 at 01:45 pm, he conducted postmortem examination on the dead body of Muhammad Sharif deceased and observed as under:--
"External Appearance
A dead body of a male aged about 30-32 years lying supine on post mortem table (right eye mouth were closed, head tilted towards right side, wearing off white Kameez and Shalwar, the clothes were blood stained which were handed over to the police after signatures. He has bandage on his left orbit. On removing the bandage, a big wound was present. Rigor mortis was developing and post mortem staining was present on the depended parts of the body. I found the following on the dead body of the deceased.
Injuries
A lacerated wound measuring about 8 cm x 7 cm into going deep in margin with colour of abrasion present on left eye. It was the wound of entry and there was no exit wound.
Internal Examination
There was total loss of left eye ball. All the contents of the left orbits were totally destructed. The bones of the left orbit along with the base and upper left lateral wall of the nose. Maxillary signs extending up to the left eye brow were completely destructed. The brain matter was visible through the orbital orifice. On opening the skull, the meninges were torn. There was fracture of the frontal bone in the mid line extending to the left parietal and temporal bone up to the left ear. The brain matter of the frontal parietal and temporal region was destructed. Multiple foreign body (pellets cartridge (wad) was recovered from the brain cavity, which was sealed and handed over to the police along with other things. I advised X-ray skull which was also handed over to the police.
Stomach containing mixed 50 cc digested food. Small intestine containing chum and gas. Large intestine containing faecal matter and gas. No other abnormality was found on the dead body.
Opinion
After thorough external and internal examination of the dead body, I was of the opinion that the above described injury was ante-mortem in nature and was caused by some fire arm weapon which caused destruction to the vital organ (brain and bones) which may cause severe bleeding haemorrhage and shock which leads into death. Such type of injury was usually sufficient to cause death in ordinary course of nature. The probable time elapsed between injury and death was within few minutes and between the death and post mortem was 4 to 8 hours".
7. On the other hand, statements of present appellant and his co-accused Muhammad Shabbir and Bashir Ahmed were recorded under section 342, Cr.P.C. who refuted the allegations so leveled against them and Muhammad Munir present appellant has firstly opted to appear as a witness under section 340(2), Cr.P.C. but did not appear thereafter, however, produced the defence evidence i.e. Shabbir, ASI as DW-1, Mukhtar Ahmed DW2 and Muhammad Iqbal DW-3 and in reply to question "why this case against you and why the P.Ws. deposed against you?" the appellant Munir Ahmed replied as under:--
"The unfortunate deceased sustained a fire injury from his own gang, while running towards the arriving companions of the complainant party. The P.Ws. are inter se either related or interested for their financial benefits being 'QABZA GROUP'. They wanted the land of innocent persons to be criminally occupied after putting the innocent accused persons in the trouble at the hands of police through police pimp Haji Riaz".
8. After conclusion of the trial, learned trial court convicted the present appellant with above stated sentence and acquitted his co-accused Muhammad Shabbir and Bashir Ahmed through judgment dated 4-12-2010. Hence this appeal.
9. Learned counsel for the appellant contended that:--
(i) the judgment of the trial court dated 4-12-2010 is against law and facts on the file and is liable to be set aside.
(ii) that the prosecution has failed to prove its case against the present appellant as there are many major discrepancies in the statements of the P.Ws. further there is conflict between ocular evidence and medical evidence and the learned trial court has convicted the appellant on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;
(iv) lastly submitted that appeal may be accepted and the judgment of the trial court dated 4-12-2010 may kindly be set aside and appellant may be acquitted.
10. On the other hand, learned D.P.G. assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:--
(i) prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as mentioned in FIR Exh.PE/1 recorded on the statement Exh.PE of Abdul Aziz complainant P.W.5 has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.
13. According to FIR Exh.PE/1, occurrence took place on 21-4-2008 at about 09:45 a.m. whereas FIR was registered on the same day at about 11:55 a.m. on the statement of Abdul Aziz P.W.5 complainant real brother of Muhammad Sharif deceased within two hours which is prompt one and has excluded the possibility of the substitution of the accused as FIR stood registered without unnecessary loss of time so any chance of entering into deliberation and consultation with others to involve the appellant wrongly is excluded and all the material details of the occurrence has been elaborately explained in the FIR.
14. Abdul Aziz P.W.5 stated that he has land in Mouza Chandrani and on 21-4-2008 he along with Mst. Sarwar Bibi his mother, Muhammad Rafique (given up P.Ws.) his brother Muhammad Sharif deceased went to their land at morning time as his brother Muhammad Sharif deceased and his mother Sarwar Bibi (given up P.W.) were demolishing the joint wall adjacent to our Dera and one day prior to demolishing the wall an altercation took place between them and Bashir Ahmed etc. accused and Bashir Ahmed etc accused had pointed out to them the place where the wall was to be made. The wall was being demolished so that the same may be made at the pointed place. He further stated that he, Rafique (given up P.W.) and Abdul Rehman P.W.6 were working in the field nearby the wall. At about 09:45 a.m. Munir Ahmed present appellant made a fire in his previous courtyard and on hearing the noise of fire his brother Muhammad Sharif deceased and his mother Sarwar Bibi (given up P.W.) ran toward us. He stated that they rushed towards both of them and saw that Bashir Ahmed empty handed, Shabbir Goonga empty handed (acquitted accused) and Munir Ahmed present appellant while armed with double barrel gun were chasing his brother Muhammad Sharif deceased and Mst. Sarwar Bibi and Bashir Ahmed raised a lalkara and asked him to make a fire and his brother Muhammad Sharif deceased turned to back to see there, whereupon Munir Ahmed present appellant made a fire with his gun which hit his brother Muhammad Sharif at his left eye and his brother Muhammad Sharif fell down and succumbed to the injuries. He further stated in cross-examination that his residence is at a distance of 1-1/2 Km from the place of occurrence and Abdul Rehman P.W.6 is his Chacha Zad who lives at a distance of 4 to 4-1/2 Km from the place of occurrence. Abdul Rehman P.W.6 has narrated the same story as stated by Abdul Aziz complainant P.W.5.
15. The said eye-witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated each other on all material aspects of the case. Their evidence is quite natural, trustworthy and confidence inspiring which has been fully supported by the medical evidence furnished by Doctor Shafique Ahmed P.W.3 stating therein that there was lacerated wound measuring 8 cm x 7 cm into going deep with punched in margin with colour of abrasion present on left eye of Muhammad Sharif deceased which was entry wound and did not observe any exit wound and injury was ante-mortem in nature and was caused by some fire arm weapon which caused destruction to the vital organ (brain and bones) which may cause severe bleeding haemorrhage and shock leading to the death of Muhammad Sharif deceased which injury was shown sufficient to cause death in ordinary course of nature and probable time that elapsed between injury and death was within few minutes and between the death and postmortem was 4 to 8 hours.
16. There is another aspect of the case that Abdul Aziz P.W.5 complainant is real brother of Muhammad Sharif deceased. It is a case of single accused to the extent of present appellant Munir Ahmed as there was only single injury on the person of Muhammad Sharif deceased attributed to present appellant as it is highly improbable that he would let off the real culprits and will falsely implicate the appellant Munir Ahmed for the murder of his real brother. Substitution in such like cases is a rare phenomenon.
17. Abdul Aziz P.W.5 stated that his brother Muhammad Sharif and his mother Mst. Sarwar Bibi (given up P.W.) were demolishing the joint wall adjacent to their Dera and about the wall one day prior an altercation took place between them and Bashir Ahmed etc (including Munir Ahmed present appellant) and Bashir Ahmed etc. accused pointed out to them the place where the wall was to be made and wall was being demolished so that the same may be made at the pointed place. In cross examination, he stated that they were negotiating with the appellant party for removing the wall three days prior to the occurrence and no demarcation was held by the Revenue Officer and they negotiated with Bashir Ahmed on the construction of wall and the respectable and Muhammad Sharif deceased himself told to them that said land belonging to them, however, they do not have any documentary record with him about the claim.
18. Admittedly, no litigation is pending between the parties regarding the disputed wall and no enmity was existed previously between the parties. Complainant Abdul Aziz P.W.5 did not give any detail of altercation allegedly took place one day prior to the present occurrence between the parties on the dispute of wall rather he himself stated that Bashir Ahmed etc pointed out to them the place where the wall was to be made and the wall was being demolished so that the same may be made on the pointed place. This shows that there was no dispute between the parties regarding demolishing of the wall prior to the present occurrence. So it is our confirmed view that motive as alleged by the prosecution is not proved.
19. Abdul Aziz P.W.5 stated that after the occurrence they caught hold of Munir Ahmed accused along with his gun whereas Bashir Ahmed and Shabbir Ahmed (acquitted accused) are succeeded to get the custody of Munir Ahmed accused from them during the scuffle and butt of gun of Munir Ahmed appellant was broken and they snatched the gun from the possession of Munir Ahmed accused and produced the same to police. P.W.6 Abdul Rehman also stated that police took into possession double barrel gun P-3 along with its broken butt P-4 through recovery memo Exh.PG attested by him and Muhammad Rafique (given up P.W.) after sealing the same into parcel and police also took into possession two empty cartridges Exh.P5/1-2 from the barrels of the gun through recovery memo Exh.PG. Taufeeq Hussain SI/I.O. of this case P.W.8 stated that on 5-5-2008 he arrested Munir Ahmed accused and admittedly during the investigation nothing was recovered from or on the pointation of Munir Ahmed appellant and double barrel gun Exh.P3 along with two crime cartridges Exh.P5/1-2 were allegedly taken into possession by the police on the day of occurrence on 21-4-2008 allegedly snatched by complainant party much before the arrest of Munir Ahmed present appellant i.e. 5-5-2008 and both double barrel gun P-3 and two crime empties Exh.P5/1-2 were sent together to FSL on 13-5-2008 through Sajjad Ahmed constable P.W.4 who deposited the same on 4-5-2008 in the office of FSL Punjab Lahore about eight days after the arrest of Munir Ahmed accused i.e. 5-5-2008. Possibility of the manufacturing of the crime empties before their dispatch to the said laboratory could not be ruled out of consideration. Reliance is palced on case titled Masood Aslam alias Shada v. The State (2002 PCr.LJ 1603).
20. Now coming to the defence evidence of Munir Ahmed appellant produced in his defence in the shape of Shabbir Ahmed ASI DW-1, Mukhtar Ahmed as DW2, Muhammad Iqbal DW-3 but he himself has not appeared under section 340(2) Cr.P.C. and simply to a question, why this case is against you and why the P.Ws. deposed against you? he replied as under:--
"The unfortunate deceased sustained a fire injury from his own gang, while running towards the arriving companions of the complainant party. The P.Ws. are inter se either related or interest for their financial benefits being 'QABZA GROUP'. They wanted the land of innocent persons to be criminally occupied after putting the innocent accused persons in the trouble at the hands of police through police pimp Haji Riaz".
21. In view of that, the defence plea of Munir Ahmed appellant is nothing except the denial.
22. Although, we have disbelieved the motive and recovery of gun double barrel P-3 and if same evidence is excluded from consideration, even then, the case of the prosecution is proved against Munir Ahmed appellant as discussed earlier, the prosecution has proved its case against Munir Ahmed appellant through the evidence of eye-witnesses namely Abdul Aziz P.W.5 and Abdul Rehman P.W.6 supported by medical evidence furnished by Doctor Tauseef Ahmed P.W.3 therefore, we are of the view that the prosecution has proved its case against the appellant beyond the shadow of any doubt.
23. Now coming to the quantum of sentence, we have noted some mitigating circumstance, in favour of the appellant Munir Ahmed. Firstly we have disbelieved recovery of the gun P-3 and two crime cartridges P5/1-2 admittedly not recovered from or on pointation of Munir Ahmed appellant and were sent to FSL together on 13-5-2008 which were received in the office of FSL on 14-5-2008 after eight days of the arrest of appellant Munir Ahmed i.e. 5-5-2008 allegedly produced by complainant Abdul Aziz P.W.5 on 21-4-2008 on the day of occurrence to the police on the pretext that same was snatched by him from Munir Ahmed appellant. Secondly it is a case of single fire shot and there is no allegation of repetition of any fire arm injury against Munir Ahmed appellant and thirdly we have already disbelieved the motive story of the prosecution in para No. 19 of this judgment, secondly.
24. Fourthly from the evidence, it is revealed that at the time of demolishing the disputed wall by Muhammad Sharif deceased some hot words would have been uttered due to which both the parties grappled with each other in result of which Muhammad Sharif deceased was died and Bashir Ahmed real father of Munir Ahmed present appellant and Muhammad Bashir alias Goonga real brother of Munir Ahmed present appellant received injuries and the MLRs in this respect are placed on pages 148 to 159 of the paper book and further complainant Abdul Aziz P.W.5 himself stated in FIR as under:--
25. Bashir Ahmed is real father of Munir Ahmed appellant and Bashir Ahmed has also received injuries in the occurrence as stated above.
26. In view of the above, appellant Munir Ahmed appellant who at the time of occurrence was a young man of 23/24 years of age acted under the influence of his father Bashir Ahmed co-accused who was acquitted. The prosecution case was found to be false qua Bashir Ahmed and Shabbir Ahmed two co-accused who were acquitted and no appeal has been filed by the prosecution against their acquittal. Therefore, in our view death sentence awarded to Munir Ahmed appellant is quite harsh. Reliance is palced on case titled Muhammad Imran alias Asif v. The State (2013 SCMR 782) in which Hon'ble Supreme Court of Pakistan has observed at page 786 as under:--
"Since the learned counsel for the appellant has elected not to challenge the conviction, we have considered the submissions on question of sentence and find that a motive was alleged in the FIR but there was no detail of what actually caused the quarrel/ altercation 1 and 1/2 months prior to the occurrence. No evidence was led during trial to clarify this rather P.W.2 Amer Mehmood in his cross-examination admitted that he did not know the reason which led to the quarrel but 1 and 1/2 months prior to the occurrence and even P.W.4 Muhammad Latif admitted that he did not witness the motive part of the prosecution story. No wonder the learned High Court disbelieved the motive qua those who were acquitted. There is evidence to suggest that appellant who at the time of occurrence was a young man of 21 years of age acted under the influence of his father Mubarak co-accused who stands acquitted. The latter had raised the 'lalkara' that Shahid deceased should be done to death where after the accused launched the attack. Even the nature of injuries caused by the appellant could be yet another factor which would give qua the quantum of sentence as we find that appellant was attributed injuries Nos.1 to 3, which were simple. Injuries Nos.5 and 11 were attributed to Irfan who still remains fugitive to law and injuries Nos. 4, 6, 7, 8 and 10 were attributed to Mubarak co-accused (father of the appellant) who was acquitted. As per medical evidence injuries Nos.4, 5 and 6 were the cause of death. Thus none of these fatal injuries are attributed to the appellant. The prosecution case was found to be false qua the two co- accused who were acquitted. In terms of section 302(b), P.P.C. there are two legal sentences i.e. death or life. The latter sentence in the facts and circumstances of the case would meet the ends of justice. Consequently we partly allow this appeal and convert the sentence of death into life imprisonment. However, the remaining sentence with regard to the compensation and in default thereof six month's RI shall remain intact. Benefit of section 382-B, Cr.P.C. would also be extended".
27. Due to the above mentioned reasons, the conviction of Munir Ahmed appellant under section 302(b), P.P.C. awarded by the learned trial court through impugned judgement is maintained but his sentence is altered from death to imprisonment for life. The compensation awarded by trial court and sentence in default thereof is maintained. The benefit of section 382-B, Cr.P.C. is also given to the appellant. Consequently, with the above said modification in the sentence of Munir Ahmed present appellant, Criminal Appeal No. 440 of 2010 filed by Munir Ahmed present appellant is hereby dismissed. Murder Reference No. 18 of 2011 is answered in NEGATIVE and death sentence of Munir Ahmed present appellant is NOT CONFIRMED.
HBT/M-288/L Sentence altered.