MUHAMMAD ZUBAIR Versus State
ASJAD JAVAID GHURAL, J.--- Through Criminal Appeal No.265/2015 in terms of section 410, Cr.P.C., appellant Muhammad Zubair has challenged the vires of judgment dated 31.03.2015 passed by the learned Additional Sessions Judge, Multan in case FIR No.242/2012 dated 23.07.2012, in respect of offences under sections 302, 337-F(i), 337-F(ii), 148 and 149, P.P.C., registered at Police Station, Qadir Pur Ran, District Multan whereby he was convicted and sentenced as under:-
Under section 302(b), P.P.C.
Rigorous Imprisonment for life and to pay the compensation of Rs.400,000/- to the legal heirs of deceased under section 544-A, Cr.P.C. and in default thereof to further undergo simple imprisonment for six months.
He was given benefit of section 382-B, Cr.P.C.
2. Criminal Revision No.152 of 2015 preferred by Complainant Shaukat Hussain seeking enhancement of sentence of respondent No.2 shall be decided through this common judgment.
3. The case set up by the prosecution in the crime report (Ex.PC/1) registered on the complaint (Ex.PC) of Shaukat Hussain (PW-11) is that on 23.07.2012 at about 05:00 p.m., when he was going to the house from his shop, he saw his brother Shafqat Hussain inside Hamdard Bakery. In the meanwhile, Muhammad Zubair (appellant) armed with scissors, Qaisar Mushtaq armed with dagger, Shahid armed with knife, Furqan alias Gosha and Muhammad Asad empty-handed came there and raised lalkara to kill Shafqat Hussain whereupon Muhammad Zubair started beating him. On raising hue and cry, the complainant, Ghazanfar Iqbal and Muzaffar Hussain reached at the place of occurrence and in their view, Muhammad Zubair (appellant) gave a scissors blow on the left side of chest of Shafqat Hussain touching the heart. Shafqat Hussain fell down in injured condition. Qaisar Mushtaq inflicted dagger blow at the buttock and the knife blow inflicted by Shahid hit at the left side of chest of injured Ghazanfar Iqbal, who also fell down. Zubair Ahmad and Qaisar Mushtaq also caused injuries to Ghazanfar. Accused Furqan Gosha and Muhammad Asad kept on giving fists and kicks blows to both the laying injured. In the meanwhile, people of the vicinity gathered and the complainant, with the help of people, got rid of the accused persons. Both the injured were shifted to the hospital where Shafqat Hussain succumbed to injuries.
Motive behind the occurrence was stated to be a quarrel between Shafqat Hussain and Muhammad Zubair, which had taken place a day before wherein Muhammad Zubair threatened to kill him.
4. Javed Iqbal, SI (PW-16, wrongly mentioned as 15) visited the place of occurrence on the same day, took all necessary steps of initial investigation at the spot, recorded statements of the witnesses under section 161, Cr.P.C. and also got conducted the post mortem examination on the dead body of the deceased. Zawar Hussain, SI (PW-15, wrongly mentioned as 14) interrogated co-accused Asad, Qaisar Mushtaq and Furqan Gosha and got proclamation of the appellant. Muhammad Aslam, SI (PW-14, wrongly mentioned as 13) arrested the appellant on 28.02.2013 and during investigation, he led to the recovery of blood-stained scissor (P-4) on 08.03.2013. After completion of investigation, he got prepared report under section 173, Cr.P.C.
5. Dr. Shabbir Ahmed (PW-10) conducted post-mortem examination on the dead body of deceased Shafqat Hussain and observed 1 x cm penetrating wound on left side of the chest, 6 cm blow left nipple and 10 cm from midline, which was the cause of death inflicted by some pointed end weapon and proved to be fatal. The probable duration between injury and death was immediate whereas, between death and post mortem examination 03-hours and 15-minutes.
6. At the commencement of trial, the prosecution produced
17-witnesses besides the report of Chemical Examiner and that of Punjab Forensic Science Agency (Ex.PF and Ex.PU). The appellant and his co-accused Qaisar Mushtaq, Furqan alias Gosha and Muhammad Asad (all since acquitted), in their statements recorded under section 342, Cr.P.C., had denied and controverted all the allegations of fact levelled against them. They neither opted to make statements under section 340(2), Cr.P.C. nor had they produced any witness in their defence.
7. The trial Court, after hearing learned counsel for the parties, proceeded to acquit co-accused Qaisar Mushtaq, Muhammad Asad and Furqan alias Gosha, whereas, convicted and sentenced the appellant in the above terms vide impugned judgment dated 31.03.2015. Hence, this appeal.
8. Learned counsel for the appellant submits that the prosecution has miserably failed to prove the charge against the appellant; that one of the PWs namely, Sohail Iqbal also sustained injuries during the occurrence but the accused against whom the said injury was attributed, has already been acquitted of the charge by the trial court by disbelieving his testimony; that when an injured witness could not establish the injury on his own person, his testimony cannot be believed to the extent of remaining structure of the prosecution case; that the prosecution has failed to establish any motive or previous enmity between the adversaries; that the alleged incident took place at the spur of the moment, in the heat of passion, without pre-meditation and the appellant had no intention to kill the deceased; In the end, he submits that it is hardly a case of offence under section 302(c), P.P.C. He has made alternate prayer to convert the conviction and sentence in one of section 302(c), P.P.C. to the imprisonment already undergone.
9. On the converse, learned Deputy Prosecutor General appearing on behalf of the State assisted by learned counsel for the complainant submits that it was a day light occurrence, which took place in a busy Bazar in front of a backery, where identity of the assailants cannot be questioned; that the witnesses of ocular account were quite natural and consistent inter se coupled with the medical evidence; that lodging of crime report within the shortest span of time rules out the possibility of fabrication and consultation; that no reason whatsoever was explained by the appellant that what happened at the spot, which prompted him to commit the murder of deceased at the spot; that defence of the appellant qua non-existence of planning or pre-meditation is just words of mouth having not been supported with any piece of the evidence; that the appellant along with his co-accused with pre-meditation, in pursuance of their common object, attacked upon the complainant party, which resulted into death of one person and injuries to others; that the learned trial Court has not recorded any justifiable reason for acquitting the co-accused and as such on that basis no benefit can be extended to the appellant; that the prosecution has successfully proved the case against the appellant beyond reasonable shadow of doubt. In the end, a prayer has been made for dismissal of this appeal.
10. I have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant and perused the record with their able assistance.
11. The case of the prosecution hinges upon ocular account, medical evidence, recovery of weapon of offence and motive part of the occurrence. In order to establish the ocular account, the prosecution produced Shaukat Hussain (PW-1)/complainant, brother of deceased Shafqat Hussain and Ghazanfar Iqbal (PW-12)/injured. They while appearing in the dock in the court-room demonstrated in unison that on the fateful day, they along with Muzaffar Hussain and Shafqat (deceased) were present in front of Hamdard Bakery at Qadirpur Raan, when appellant Zubair armed with scissor, Qaisar Mushtaq armed with dagger, Shahid armed with knife, Furqan and Muhammad Asad empty handed came there and raised a Lalkara to kill Shafqat Hussain and in their view, appellant Zubair inflicted scissor blow at the left side of chest of deceased Shafqat Hussain, who fell down. Accused Qaisar Iqbal and Shahid caused injuries to injured Ghaznafar Iqbal with their respective sharp edged weapons. Co-accused Furqan and Asad also gave beating to both the laying injured with fists and kicks. The eye-witnesses, with the help of the people gathered there, got rid of the accused and shifted the injured to the hospital where Shafqat took his last breath. All the eye-witness including one injured witness, being natural witnesses, were subjected to the ordeal of lengthy cross-examination making consistent statements corroborating each other qua the date, time, place, mode and manner of the occurrence, name of the appellant, weapon of offence and the role played by him during the occurrence and the defence could not extract any favourable material from their mouths. It was a promptly lodged FIR, which was registered within the shortest possible time nominating the appellant and his co-accused with minute detail and the role played by them during the occurrence. The post mortem examination on the dead body of the deceased, which was conducted on the same day within 3/4 hours shows that the medical officer not only observed the existence of the injury attributed to the appellant caused by sharp edged weapon but also it was proved fatal to the life of the deceased. The promptness in lodging the crime report as well as sharp proceedings of the post mortem examination on the dead body of the deceased rules out every hypotheses of consultation, fabrication and deliberation.
12. The appellant, in his examination under section 342, Cr.P.C. deposed that "The occurrence took place without premeditation, all of sudden, at the spur of moment, in the heat of passion and without any undue advantage". He, however, neither produced any evidence in his defence nor even opted to appear on oath as his own witness under section 340(2), Cr.P.C. to disprove the charges against him.
13. Thrashing out the evidence adduced by the prosecution and statement of the appellant recorded under section 342, Cr.P.C., it came on surface that date, time and place of occurrence is admitted one and there is only a difference between the parties qua the mode and manner of occurrence and the only question, which requires determination is as to whether it was a case of intentional murder as alleged by the prosecution or incidental death occurred at the spur of moment as set out by the defence. In order to determine this fact it is appropriate to have a quick glance over the provisions of section 302, P.P.C., which by itself divides qatl-i-amd for the purpose of punishment in three categories i.e. a) qatl-i-amd, punished with death as qisas; b) qatl-i-amd, punished with death or imprisonment for life as ta'zir c) qatl-i-amd, punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of qisas is not applicable."
In the mischief of section 302(c), P.P.C. the legislature has left the quantum of sentence under discretion of the Court keeping in view facts and circumstances of each case. The Hon'ble apex Court in a celebrated judgment reported as "Ali Muhammad v. The State" (PLD 1996 Supreme Court 274) has held that the provisions section 302(c), P.P.C. cover those cases within any one of the five listed exceptions of the erstwhile section 300, P.P.C. The relevant portion of the esteemed judgment reads as under:-
"As to what are the cases falling under clause (c) of section 302, the law-maker has left it to the Courts to decide on case to case basis. But keeping in mind the majority view in Gul Hassan case PLD 1989 SC 633, there should be no doubt that the cases covered by Exception to the old section 300, P.P.C. read with old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C."
Exception 4 of old section 300, P.P.C. reads as under:-
"Exception 4:- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation: It is immaterial in such cases which party offers provocation or commits the first assault."
14. From the aforementioned angel, we can say that help of Exception-4 can only be invoked if death is caused, firstly, without premeditation, secondly, in a sudden fight in a heat of passion upon a sudden quarrel and thirdly, without the offender's having taken undue advantage or acted in a cruel or unusual manner. On the touchstone of above principles, now we have to see as to whether the case of the appellant falls under Exception 4 of erstwhile section 300, P.P.C. for the purpose of brining it within the ambit of section 302(c), P.P.C. or it was an intentional murder attracting the provisions of section 302(b), P.P.C.
15. From the material available on record it evinces that in this unfortunate incident one innocent person lost his life while two others sustained serious injuries. One of the injured namely, Ghaznafar Iqbal (PW-12) while appearing in the dock in the court room fully supported the prosecution version, whereas, the other injured namely, Muzaffar could not record his statement before the learned trial Court being murdered. On the contrary, astonishingly the accused party, who allegedly consisted upon a group of five persons including the appellant, did not sustain even a single scratch, which fact is sufficient to believe that they planned the occurrence and attacked upon the complainant party when they were not in a position to respond. Had this incident been taken place at spur of moment, naturally the accused party would have also sustained injuries at the hands of the complainant side, which was not a case of defence at any stage. Even the appellant in his statement did not disclose what actually happened at the spot and what prompted him to kill the deceased at spur of the moment. There exists even no evidence of sudden fight. Though the appellant was not armed with conventional weapon at the time of occurrence yet he can safely be attributed the knowledge that scissor blow inflicted by him at the most vital part of the body i.e. chest near the heart of deceased was so imminently dangerous that it in all probability can cause death, attacked upon unarmed person. This by itself constitutes undue advantage and excludes his case from the purview of the Exception 4. Reliance is placed on case reported as "Javed Akhtar v. The State" (PLD 2020 Supreme Court 419) wherein it has been laid down as under:-
"In the present case there is no evidence of a sudden fight, let alone in the heat of passion. The petitioner armed himself with a shotgun against unarmed persons, this in itself constitutes undue advantage and excludes his case from the purview of the Exception 4."
While inflicting sharp edged weapon at the most vital part of the body of the deceased, the appellant acted in a cruel manner, which is yet another factor making him ineligible for the benefit of said exception. Moreso, the appellant neither produced any evidence in his defence nor even bothered to appear as his own witness under section 340(2), P.P.C. and, thus, his stance so taken in statement under section 342, Cr.P.C. is nothing but a bald story being words of mouth having no corroboration from any independent source of the evidence. In such circumstances there exists no occasion of sudden provocation, spur of the moment and exclusion of pre-meditation at the time of occurrence in order to bring the appellant's case under the ambit of section 302(c), P.P.C.
16. So far as acquittal of co-accused by the learned trial Court is concerned by disbelieving the prosecution evidence including the injured witness, who allegedly sustained injury at the spot at the hand of co-accused Ghaznafar Iqbal, is concerned, the reasons which persuaded the learned trial Court for acquitting the co-accused reads as under:-
"Adverting to accused Qaisar Mushtaq, Muhammad Asad and Furqan alias Gosha, learned ADPP and learned counsel for the complainant stood in awe of arguments of learned defence counsel and submissions made by them could be no more than filler words. The dominant narrative emerging works to appearance of doubts as far as accused aforementioned are concerned. In result, Qaisar Mushtaq, Muhammad Asad and Furqan alias Gosha, being extended benefit of doubt are hereby acquitted of the charge, with release of their surety bonds."
I am afraid that the reasons undertaken by the learned trial Court while acquitting the co-accused are neither legal nor tenable. Nowhere the learned trial Court discussed and disbelieved the prosecution evidence to the extent of acquitted co-accused. No doubt it was not a case of acquittal of co-accused Qaisar Mushtaq, who had inflicted dagger blow at the buttock of injured PW Ghazanfar Iqbal, which was supported by his medico-legal examination report and the learned trial Court failed to make any specific observation while discarding his testimony but it has been observed that the alleged incident took place in the middle of year, 2013, the accused face the trial till March, 2015 and after pronouncement of the judgment, the acquitted accused are enjoying acquittal for more than six years and in the interregnum, neither the complainant nor the State opted to file any appeal against his acquittal. At this stage, keeping in view the aforementioned facts and circumstances of the case, I deem it appropriate to ignore the acquittal of said accused. However, on that basis no latitude or mercy to a murderer of an innocent person having no fault on his part can be extended.
17. Gathering all these facts and circumstances of the case, I am of the considered view that the prosecution has successfully proved the charge against the appellant by producing cogent, reliable and confidence inspiring evidence. It was a day light occurrence and the case was registered within an hour. The promptness in lodging the crime report coupled with the sharp post mortem examination on the dead body of the deceased not only confirms the presence of eye-witnesses at the spot but also rules out every possibility of fabrication and consultation. Belatedly taken plea of the appellant that the occurrence took place at spur of the moment without any pre-meditation, does not find corroboration from any independent source of evidence, which was nothing but a far cry. It is inconceivable for the complainant to substitute the assassin of his brother with an innocent person and that too without any rhyme or reason. I have no legitimate exception to differ with the conclusion arrived at by the trial Court qua conviction and sentence of the appellant.
18. For what has been discussed above, the appeal in hand stands dismissed.
19. Criminal Revision No.152 of 2015 filed by the complainant for enhancement of sentence is without any merit and the same stands dismissed in limine.
JK/M-37/L Appeal dismissed.