MUHAMMAD AMEEN Versus State
MUHAMMAD ANWAARUL HAQ, J.--- Appellants Muhammad Ameen, Muhammad Afzal and Mushtaq Ahmad along with their co-accused Muhammad Islam and Basharat were tried in a case FIR No.190 dated 17.06.2008 registered under sections 302, 324 and 148/149, P.P.C. at Police Station Mandi Ahmad Abad Tehsil Depalpur District Okara and after conclusion of trial, learned trial court vide its judgment dated 30.10.2010 convicted and sentenced the appellants as under-
Muhammad Ameen
Under section 302, P.P.C. to death with compensation of Rs.5,00,000/- under section 544- A, Cr.P.C. to, be paid to the legal heirs of the deceased Muhammad Ashraf, recoverable from his property as arrears of land revenue and in case he has no means he shall further undergo six months imprisonment;
Muhammad Afzal and Mushtaq Ahmad
(i) Under section 302, P.P.C. to imprisonment for life each with compensation of Rs.2,00,000/- each under section 544-A, Cr.P.C. to be paid to injured PW Muhammad Ahmad, recoverable and their property as arrears of land revenue and in case they have no means, they shall further undergo six months imprisonment each;
(ii) Under section 324, P.P.C. to 10 years R.I. each with fine of Rs.20,000/- each, to be paid to the injured Muhammad Ahmad and in default thereof, to further undergo six months S.I. each.
Murder Reference No.587 of 2010 for confirmation or otherwise of death sentence awarded to the appellant Muhammad Ameen submitted by the learned trial court as well as Criminal Appeal No.2651 of 2010 filed by the appellants shall be disposed of through this single judgment.
2. Brief facts of the case, as depicted in the FIR (Ex.PA) recorded on the statement of the complainant Ghulam Ahmad, are that he is resident of Haji Chand and an agriculturalist by profession. On 14.06.2008 the complainant had a fight with Muhammad Ameen but the matter was hushed up by the respectables of the village. On the fateful day i.e. 17.06.2008 at about 7.00 P.M. the complainant and his brothers Muhammad Ashraf and Muhammad Ahmad were going towards Haji Chand from their land to arrange the labour for picking up maize crop. When they reached near funeral offering place ( Janazgah ) suddenly accused Muhammad Ameen armed with a rifle, Muhammad Afzal and Mushtaq Ahmad armed with .12-bore guns and Basharat and Islam alias Pappu armed with firearms ambushing behind the wall appeared. Muhammad Afzal raised a Lalkara that they would not spare Ghulam Ahmad that day and would teach him a lesson for insulting his brother Muhammad Ameen, upon which, Muhammad Ameen fired a shot with his rifle straight at Muhammad Ashraf that landed on the right side of his head and made an exit through top of head from the left side. Meanwhile Muhammad Afzal and Mushtaq Ahmad also fired shots with their .12-bore guns and the pellets hit Muhammad Ahmad on different parts of his body. The complainant immediately lay down on the ground upon whom Basharat Ali and Islam alias Pappu fired shots with their respective weapons but luckily he remained safe. The accused raised Lalkara that if anyone came ahead he would not be left alive. Brother of the complainant Muhammad Ashraf succumbed to the injuries at the spot whereas Muhammad Ahmad received serious injuries. Besides the complainant, occurrence was also witnessed by Taj Muhammad and Manzoor Ahmad who were coming towards Janazgah from the village.
3. After completion of investigation, Challan was submitted against the appellants and their co-accused Muhammad Islam and Basharat who were formally charge sheeted to which they pleaded not guilty and claimed trial.
4. In order to prove the case, prosecution produced as many as sixteen witnesses. Dr. Rai Niaz Ahmad (PW-6), Dr. Muhammad Sharif (PW-13) and Dr. Farooq Ahmad (PW-14) provided the medical evidence, complainant Ghulam Ahmad (PW-1) and Muhammad Ahmad (PW-2) furnished the ocular account whereas Allah Ditta Inspector (PW-15) and Naseer Ahmad Inspector (PW-16) conducted investigations in this case.
5. PW-6 Dr. Rai Niaz Ahmad conducted autopsy of the dead body of the deceased Muhammad Ashraf on 18.06.2008 at 8.30 A.M. and found following injuries on his person:-
1. A firearm lacerated wound 1 cm x 1 cm into going deep margins were inverted on the right side of head, 10 cm from the right ear (entry wound).
2. A firearm lacerated wound 6 cm x 3 cm into going deep margins everted brain matter was coming out from the wound on the left side of head (exit wound of injury No.1), 11 cm from the left ear.
According to his opinion the cause of death of the deceased was brain death, which was sufficient to cause death in ordinary course of nature. The injuries were ante-mortem and caused by firearm weapon. The probable duration between the injuries and death was almost immediate whereas between death and postmortem was about 12 to 14 hours.
PW-13 Dr. Muhammad Sharif conducted medical examination of Muhammad Ahmad on 18.06.2008 at 4.45 A.M. and observed following injuries on his person: -
1. A firearm lacerated wound 1/4 x 1/4 cm margin inverted into deep going at front part of right chest.
2. A firearm lacerated wound 1/4 x 1/4 cm x deep going. Margins were inverted, at front upper part of right chest.
3. A firearm lacerated wound 1/4 x 1/4 cm deep going margins inverted at front part of left elbow joint.
4. A firearm lacerated wound 1/4 x 1/4 deep going margins inverted at back and lower part of left forearm.
5. Three firearm lacerated wounds in an area 16 x 10 cm into deep going each measuring 1/4 x 1/4 cm margins inverted at front upper part of left hip joint.
6. Multiple firearm lacerated wound 10 in number in area 34 x 20 cm into deep going. Margins inverted each measuring 1/4 x 1/4 cm at middle lower part of left thigh.
7. A firearm lacerated wound 1/4 x 1/4 cm deep going margin inverted at front and base of left big toe.
8. A firearm lacerated wound 1/4 x 1/4 cm deep going margins inverted at outer part of left ankle joint.
The probable duration between the injuries and medical examination was observed as 8 to 10 hours.
PW-14 Dr. Farooq Ahmad conducted X-ray of left forearm, left ankle, chest, left foot, left hip and left thigh of Muhammad Ahmad and reported as under:-
"Small radio-opaque foreign metallic bodies like pellets were seen in the following X-rays:-
1. One in X-ray left forearm.
2. One in X-ray left ankle.
3. One in X-ray chest.
4. Three in X-ray left foot.
5. Three in X-ray left hip.
6. Seven in X-ray left thigh."
6. Learned ADPP, after tendering in evidence the reports of Chemical Examiner (Ex.PZ), Serologist (Ex.PAA) and of Forensic Science Laboratory (Ex.PBB) closed the prosecution evidence.
7. Appellants Muhammad Ameen, Muhammad Afzal and Mushtaq Ahmad in their statements under section 342, Cr.P.C. denied the allegation levelled against them and professed their innocence. While answering the question "why this case against you and why the PWs have deposed against you", appellant Muhammad Ameen stated as under:-
"The PWs are closely related with each other and have deposed against me and my co-accused to blackmail and exploit. Real facts are that it was an unseen occurrence which took place in the odd hours of night by some unknown culprits. After due deliberations in connivance with the police by stopping rozenamcha involved me and my co-accused by registering an FIR ante time. Deceased Muhammad Ashraf and Muhammad Ahmad PW are men of bad character. Ashraf deceased was having criminal history and was in habit of committing murder and dacoities with Muhammad Ahmad PW. On the fateful night Ashraf deceased and Muhammad Ahmad PW were injured during such activity. Muhammad Ashraf in result of injuries sustained by him died subsequently. I and my co-accused have been falsely involved. I am innocent."
The other two appellants Muhammad Afzal and Mushtaq Ahmad replied the said question in the similar way. Appellants Muhammad Afzal and Mushtaq Ahmad neither opted to appear as their own witnesses nor to produce any defence evidence. However, appellant Muhammad Ameen produced copy of FIR No.174/94 registered at Police Station Baseerpur (Ex.DA), copy of FIR No.216/94 registered at Police Station Baseerpur (Ex.DB) and copy of FIR No.162/2006 registered at Police Station Mandi Ahmad Abad (Ex.DC).
After conclusion of the trial, all three appellants were convicted and sentenced as mentioned above whereas their co-accused Muhammad Islam and Basharat were acquitted of the charges.
8. Learned counsel for the appellants contends that recovery of .7-MM rifle P5 through Ex.PG shown against the appellant Muhammad Ameen is inconsequential, as no empty of any weapon was recovered from the place of occurrence at the time of first inspection of the investigating officer and report of Forensic Science Laboratory Ex.PBB is only to the extent of working condition of the rifle; that recoveries of guns P4 and P1 shown to have been effected from the appellants Muhammad Afzal and Basharat Ali respectively through Ex.PF and Ex.PC are also not of any legal significance because the same were not sent to the Forensic Science Laboratory; that as per FIR and statements of the eye-witnesses PW-1 and PW-2, grudge of the accused was only against the complainant PW-1 who was present at the place of occurrence but he had not received even a single scratch on his body and instead the other two persons sustained injuries and out of them one succumbed to the same; that the motive set up in the FIR is totally false and it has been introduced only to strengthen the case; that complainant PW-1 in his cross-examination has admitted that there was no direct dispute of accused Muhammad Ameen with him, therefore, the appellants had no motive to kill the deceased. Further contends that there is a delay of more than nine hours in medical examination of the injured Muhammad Ahmad (PW-2) and a delay of more than 12 hours in postmortem of the deceased and no plausible explanation has been given for the same by the prosecution and it reflects that FIR was lodged after due deliberation and consultation; that injuries on the person of Muhammad Ahmad PW-2 are only skin deep simple injuries with the size of 1/4 cm x 1/4 cm and the Medical Officer PW has observed that the same could be caused even from 100 to 150 feet; that actually the deceased was murdered by one of his other enemies in the dark hours of the night and the appellants have falsely been involved by the complainant; that PW-3 Manzoor Ahmad, who was shown as an eyewitness of the occurrence, in his evidence has not assigned any role to the appellants. Further adds that co-accused Muhammad Islam and Basharat Ali have been acquitted by the learned trial court by disbelieving the same set of evidence; that although the appellant Muhammad Ameen deserves acquittal yet if this Court is not persuaded with the same, it is not a case of capital sentence, as the prosecution remained fail to prove the recovery of weapon of offence and the motive set up in the FIR. Learned counsel contends that case of appellants Muhammad Afzal and Mushtaq Ahmad is quite distinguishable than the case of Muhammad Ameen as no injury to the deceased has been assigned to them and the allegation regarding causing of injuries to the injured PW-2 is collective and general in nature whereas size of the injuries sustained by PW-2 reflects that appellants had no intention to kill him. Learned counsel further adds that section 34, P.P.C. does not attract against the appellants Muhammad Afzal and Mushtaq Ahmad because at the time of occurrence none of the accused had intention to kill the deceased or to cause any injury to PW-2. In support of his contentions, learned counsel for the appellants has placed reliance on the case of Shakeel and 5 others v. The State (PLD 2010 SC 47) and case of Maqsood Pervez alias Billa and another v. The State (2000 SCMR 1859) .
9. On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant while opposing criminal appeal filed by the appellants contends that the appellants are nominated in the FIR with the specific role of firing shots at the deceased and the injured PW-2; that even if for the sake of argument evidence of PW-1 and PW-3 is excluded from the consideration even then there is evidence of PW-2 Muhammad Ahmad who has received eight firearm injuries in the occurrence and the same is sufficient to maintain the conviction of the appellants; that although PW-3 Manzoor Ahmad had witnessed the occurrence but he has confined his statement to the extent of securing blood stained earth from the place of occurrence; that weapons of offence were recovered from the appellants during the investigation but because of negligence of the investigating officer no empty could be recovered from the place of occurrence, however, recovery is only a supportive evidence; that acquittal of co-accused Muhammad Islam and Basharat cannot help the appellants, as the learned trial court has rightly applied the principle of sifting grain from the chaff because no injury was attributed to them; that the prosecution has successfully proved its case against the appellants beyond any shadow of doubt and the appellant Muhammad Ameen does not deserve any leniency qua the quantum of his sentence; that although appellants Muhammad Afzal and Mushtaq Ahmad did not cause any injury to the deceased but they did share common intention with the appellant Muhammad Ameen in causing murder of the deceased and are equally responsible for the said act of their co-accused.
10. We have heard the learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the record with their able assistance.
11. The occurrence in this case took place on 17.06.2008 at 7.00 p.m. and FIR Ex.PA was lodged at 8.15 p.m. whereas the distance between the place of occurrence and Police Station is nine Kilometers, therefore, the delay of one and a quarter hour in reporting the matter to the police is of least importance.
12. The ocular account has been furnished by Ghulam Ahmad PW-1 and Muhammad Ahmad PW-2. PW-2 has sustained eight firearm injuries during the occurrence and he as well as PW-1 remained consistent regarding attribution of role to the appellants. Although the delay in medical examination of Muhammad Ahmad PW-2 and postmortem of the deceased Muhammad Ashraf has not been explained satisfactorily by both the PWs yet PW-13 Dr. Muhammad Sharif has mentioned the duration between the injuries and the medical examination of the injured as 8 to 10 hours and similarly PW-6 Dr. Rai Niaz Ahmad has observed the time that elapsed between the death and postmortem of the deceased as 12 to 14 hours, which clearly correspond to the FIR and narration of the occurrence by the witnesses. The evidence of PW-14 Dr. Farooq Ahmad reflects that there were metallic shadows inside the body of the injured (PW-2). Moreover, PW-13 during cross-examination has ruled out the possibility of sustaining of injuries by PW-2 with one fire shot. The defence remained unable to shatter the evidence of PW-2 even after lengthy cross-examination. The contention of the learned counsel for the appellants that deceased Muhammad Ashraf had many enemies and was involved in numerous criminal cases and was killed by other enemies does not find support from the evidence available on record and there is no reason apparent on the record to substantiate the plea of the appellants regarding substitution of the real culprit with the innocent persons especially when Muhammad Ahmad PW-2 and Ashraf deceased were on speaking and visiting terms with Ameen accused and used to go to the Dera of Muhammad Ameen prior to the occurrence. Mere relationship of both the eyewitnesses with the deceased also is not a ground to disbelieve their evidence, which is confidence inspiring on all material aspects of the case.
As regards PW-3 Manzoor Ahmad he has simply stated that he was present at the spot and had seen the occurrence but he has not assigned any role to any of the accused, therefore, he cannot be termed as an eyewitness of the occurrence. Even otherwise this witness has not been confronted to his previous statement (if any).
13. So far as recoveries of weapons of offence shown against the appellants are concerned, no empty was recovered from the place of occurrence at the time of first inspection of the investigating officer and report of Forensic Science Laboratory Ex.PBB regarding rifle P5 shown to be recovered from the appellant Muhammad Ameen is only to the extent of its working condition whereas guns P1 and P4 alleged to have been recovered from the appellants Muhammad Afzal and Mushtaq Ahmad were not sent to the Forensic Science Laboratory, therefore, such recovery of weapons of offence against the appellants is inconsequential.
14. The motive behind the occurrence as narrated in the FIR as well as in the statements of the witnesses was a quarrel between the complainant PW-1 and the appellant Muhammad Ameen prior to the occurrence, however, detail of the quarrel was not given in the FIR as well as in the examination in chief of the witnesses and the complainant, with whom the appellant Muhammad Ameen had a dispute, did not receive any injury during the occurrence. Even PW-1 showed his ignorance about the names of respectables of the village who had intervened and patched up the matter. Moreover, motive was further exaggerated by both the witnesses in their cross-examination by stating that infact the appellant Muhammad Ameen had beaten their servant Bashir and the dispute arose between the appellant and the complainant when the complainant PW-1 complained him in this regard. It has been admitted by PW-1 in his cross-examination that the deceased and the injured PW-2 were on visiting terms with the appellant Muhammad Ameen, therefore, motive set up in the FIR is of no help to the prosecution but even if evidence of motive and recovery of weapons of offence from the appellants are not considered there remains sufficient evidence to the extent of appellant Muhammad Ameen in the shape of ocular account and medical evidence to sustain his conviction under section 302(b), P.P.C. for qatl-i-amd of deceased Muhammad Ashraf recorded by the learned trial court and in our view the same is based upon proper appreciation of evidence.
15. As far as case of appellants Muhammad Afzal and Mushtaq Ahmad is concerned, we are of the considered view that their common intention with the principal accused Muhammad Ameen regarding qatl-i-amd of deceased Muhammad Ashraf has not been established for the following reasons:- i) Admittedly both the appellants Muhammad Afzal and Mushtaq Ahmad have not caused any injury to the deceased; ii) Admittedly as per case of the prosecution complainant Ghulam Ahmad PW-1 was the actual target of the accused. It is the case of prosecution in the FIR that appellant Muhammad Afzal raised a Lalkara asking his co-accused/appellants that Ghulam Ahmad PW-1 should not go alive, as he had insulted his brother Muhammad Amin but strangely after raising of Lalkara appellant Muhammad Ameen had not aimed at his target Ghulam Ahmad PW-1 and opted to fire a shot at Muhammad Ashraf deceased/brother of Ghulam Ahmad. The allegation against both the appellants Muhammad Afzal and Mushtaq Ahmad is that they had caused pellet injuries on the person of PW-2 Muhammad Ahmad from a distance of about 70 feet as per Ex.PK/1 without causing any harm to the deceased and PW-1 Ghulam Ahmad. iii) PW-2 in his examination in chief has stated that Ghulam Ahmad PW-1 took shelter in a ditch, therefore, he remained safe. Stance taken by PW-2 is clearly an afterthought and improvement as the same is not even supported by the evidence of PW-1 himself who has not mentioned any ditch at the place of occurrence where he took shelter to save his life.
Keeping in view the above reasons, we are of the considered view that the act done by Muhammad Ameen, co-convict of Muhammad Afzal and Mushtaq Ahmad cannot be termed as an act in furtherance of common intention of all that is a material ingredient of section 34, P.P.C. In this respect we respectfully refer the case of " Shakeel and 5 others v. The State (PLD 2010 Supreme Court 47)" wherein the Hon'ble Supreme Court of Pakistan has observed as under:-
"It is worth mentioning that "To have some intention independently of each other is not to have common intention. Common intention requires a pre-arranged plan. There must be a prior meeting of minds . (Emphasis provided). Several persons can simultaneously attack a man and may have the same intention, namely the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention as there was no prior meeting of mind to form a pre-arranged plan. In a case like that each would be individually liable for whatever injury be caused but none could be convicted for the act of the other vicariously. (PLD 1996 SC (Ind.) 176).
It may not be out of place to mention here that a line of distinction is to be drawn between "Same or similar intention and common intention, care must be taken not to confuse same or similar intention with common intention; the partition which divides their bounds is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. (Emphasis provided). In their Lordship's view, the inference of common intention within the meaning of the term in section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case. It must be shown that the criminal act was done by one of the accused persons in furtherance of the common intention of all. "Common intention" within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre arranged plan (ILR (1945) 26(Lah.) 267 (PC)." There is no cavil to the proposition that inference of common intention should not be reached unless it is necessary inference deducible from the circumstances of the case (PLD 2001 SC 378)"
Resultantly, while extending benefit of doubt to both the appellants qua their conviction and sentence under section 302(b)/34, P.P.C. they are acquitted of the charge of qatl-i-amd of deceased Muhamamd Ashraf. However, keeping in view sufficient prosecution evidence against the appellants Muhammad Afzal and Mushtaq Ahmad i.e. ocular account furnished by injured witness PW-2 fully corroborated by medical evidence, their conviction and sentence under section 324, P.P.C. is maintained.
16. So far as quantum of sentence of appellant Muhammad Ameen is concerned, we have noted certain extenuating circumstances in his favour, which are as under:- i) As discussed above in Para No.13, no empty was recovered from the place of occurrence and report of Forensic Science Laboratory Ex.PBB is only to the extent of working condition of the rifle P5, therefore, recovery of weapon of offence is inconsequential; ii) A specific motive was alleged in the FIR as well as in the statements of the witnesses but as observed supra in Para No.14 the prosecution remained fail to prove the same; and iii) The actual target of the appellant as per prosecution case was PW-1/complainant of this case Ghulam Ahmad but the appellant had not caused any injury to him.
Therefore, we are convinced that the appellant Muhammad Ameen in the peculiar circumstances of this case deserves benefit of doubt to the extent of his sentence provided under section 302(b), P.P.C. for committing qatl-i-amd of Muhammad Ashraf deceased. It is well-recognized principle by now that accused is entitled for the benefit of doubt as an extenuating circumstance while deciding question of quantum of his sentence. Reliance is placed on the case of Ghulam Mohy-Ud -Din alias Haji Babu and others v. The State (2014 SCMR 1034) wherein it has been held by the Hon'ble Supreme Court of Pakistan that a single mitigating circumstance is enough to convert the death penalty into life imprisonment.
17. For what has been discussed above, while maintaining the conviction of the appellant Muhammad Ameen under section 302(b), P.P.C. for the qatl-i-amd of deceased Muhammad Ashraf, his sentence is altered from death to Imprisonment for Life with the benefit of section 382-B, Cr.P.C, however, penalty of compensation or sentence in default thereof is maintained. The conviction and sentence of the other two appellants Muhammad Afzal and Mushtaq Ahmad under section 324, P.P.C. is also maintained, however, they are acquitted of the charge under section 302(b)/34, P.P.C. Both the appellants Muhammad Afzal and Mushtaq Ahmad are also convicted and sentenced under section 337L(2), P.P.C. for the injuries caused to PW-2 Muhammad Ahmad and are sentenced to rigorous imprisonment for one year each. The sentences of both the appellants shall run concurrently with the benefit of section 382-B, Cr.P.C. Accordingly with this modification in the conviction and sentence, Criminal Appeal No.2651 of 2010 is dismissed to the extent of appellant Muhammad Ameen and is partly allowed to the extent of appellants Muhammad Afzal and Mushtaq Ahmad.
18. The Death sentence of convict Muhammad Ameen is not confirmed and Murder Reference No.587 of 2010 is answered in the Negative .
HBT/M-388/L Order accordingly.