MUHAMMAD SALEEM Versus State
SAYYED MAZAHAR ALI AKBAR NAQVI, J.--- Muhammad Saleem son of Jahangir, caste Khokhar, resident of Pakki Gali, Hanjarwal Lahore, appellant, along with Muhammad Hussain, Shahzad Ahmad alias Sajjad and Nadeem Hussain (all since acquitted) was involved in case FIR No.1192/2008, dated 14.12.2008, offence under sections 302, 452, 34, P.P.C., registered with Police Station Hanjarwal, Lahore. He was tried by learned Additional Sessions Judge, Lahore, under the afore-mentioned offences. The learned trial court after completion of the trial, convicted and sentenced the appellant vide judgment dated 30.06.2012 in the following terms:-
๏ Under section 302(c), P.P.C., sentenced to undergo imprisonment for life with direction to pay Rs.3,00,000/- as compensation to legal heirs of deceased in terms of section 544-A, Cr.P.C. and in case of default in payment thereof to further undergo S.I. for six months.
๏ Under section 452, P.P.C., sentenced to undergo imprisonment for four years with fine of Rs.50,000/- and in case of default in payment thereof to further undergo S.I. for one month.
๏ Both the sentences inflicted upon the appellant were directed to run concurrently and benefit of section 382 -B, Cr.P.C. was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction and sentence through filing Crl. Appeal No.1248/2012. The complainant also filed Crl. Appeal No.1403/2012 against the acquittal of respondents under section 302(b), P.P.C., in which vide order dated 12.11.2013 notice was issued against Muhammad Saleem/respondent in the following terms:-
"4. It was the case of the prosecution that respondent No.1 along with other respondents came to the place of occurrence while he was armed with rifle and he committed the occurrence in which Azhar Abbas, brother of the complainant, lost his life. It was alleged that respondent No.1 fired three repeated shots with rifle and during spot inspection, three crime empties were recovered from the place of occurrence. During investigation, a rifle was recovered from the possession of respondent No.1 which was sealed and ultimately sent to the firearm expert. The report of the firearm expert indicates that all the three empties, recovered from the place of occurrence, were fired from the same rifle. It is stated that respondent No.1 made repeated fires with his rifle to make sure death of the deceased and as such respondent No.1 was liable to be convicted under section 302(b) of the Pakistan Penal Code, 1860.
5. The points raised need consideration.
6. Let notice be issued to respondent No.1 against his acquittal under section 302(b) of the Pakistan Penal Code, 1860."
However, to the extent of Muhammad Hussain, Shahzad Ahmad alias Sajjad and Nadeem Hussain/respondents the same was dismissed as having not pressed. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.
3. Prosecution story as portrayed in the FIR (Exh.PA) lodged on the complaint (Exh.PC) of Muhammad Rafique son of Farmaish, caste Khokhar (PW-4) is that the complainant along with his brother Azhar Abbas resides at Mohalla Laniyan Wali Masjid, Hanjarwal. Brother of the complainant Azhar Abbas had constructed a new slab over sewerage nalla underneath rain pipe of his house. On 14.12.2008, at 3:00 p.m. the complainant along with his brother Azhar Abbas was standing in the street when Muhammad Saleem son of Jahangir, caste Khokhar, resident of Pakki Gali, Hanjarwal approached there while riding the motorcycle rashly. Brother of the complainant asked Muhammad Saleem to take care as the slab was newly constructed and it might not break. However, Muhammad Saleem intentionally broke the slab due to which scuffle took place and abuses were exchanged. Muhammad Saleem being infuriated went to his house infuriated and after taking out rifle .44-bore he reached there along with his brothers Shehzad alias Sajjad, Muhammad Nadeem and one Muhammad Hussain son of Ghulam Hussain, caste Julaha, resident of Hanjarwal. The complainant along with his brothers Azhar Abbas and Muhammad Shafique and Faqeer Hussain son of Said Muhammad, all Khokhar by caste and residents of the same vicinity, after locking the outer door went in the courtyard of the house. All of sudden Muhammad Saleem armed with rifle .44-bore, Shehzad, Nadeem and Muhammad Hussain, empty handed, started raising lalkaras. Shehzad, Nadeem and Muhammad Hussain persuaded Muhammad Saleem to teach lesson to Azhar Abbas for abusing and he be killed on which Muhammad Saleem made two fire shots upon Azhar Abbas over the wall, which landed on the front wall of the room. Azhar Abbas rushed towards his room and closed the door. Muhammad Saleem after climbing over the wall entered the courtyard and made straight fire shot towards Azhar Abbas, which after crossing the door of the room landed on right side of his chest. The accused persons while raising lalkaras and extending threats of dire consequences made their good escape. When the complainant and other PWs opened the door, Azhar Abbas had succumbed to the injuries.
Motive behind the occurrence as disclosed in the crime report was that accused broke the slab constructed by brother of the complainant intentionally as a consequence whereof abuses were exchanged. Due to this grudge accused Muhammad Saleem etc. had committed murder of Azhar Abbas.
4. On receipt of information regarding the occurrence Nazir Hussain, Inspector (PW-12) along with other police officials proceeded to the place of occurrence where the complainant made his statement, which was reduced into writing (Exh.PC) and complainant thumb marked the same in token of its correctness. After endorsing police karvai the complaint was transmitted to Police Station for registration of formal FIR. Thereafter, the investigation was entrusted to Muhammad Saeed, Inspector (PW-13), who reached the place of occurrence and prepared inquest report (Exh.PQ). He dispatched the dead body to mortuary under the escort of Wazir Ali 5564/C (PW-2) and Aish Muhammad 7627/C (PW-3). From the spot the Investigating Officer secured bloodstained earth vide recovery memo Exh.PS and took into possession three empties of rifle .44-bore vide recovery memo Exh.PU. The Investigating Officer also prepared rough site plan of the place of occurrence (Exh.PR). After postmortem examination, last worn clothes of the deceased shalwar (P-1), Bunyan (P-2) and qameez (P-3) were produced before the Investigating Officer, which were taken into possession vide recovery memo Exh.PT. On the direction of the Investigating Officer and on the pointing out of the PWs, on 16.12.2008, Syed Younas Bukhari, Draftsman (PW-7) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PF and Exh.PF/1), which was made part of the file. On 22.12.2008, the Investigating Officer arrested Muhammad Saleem/appellant. Thereafter, the investigation was entrusted to Iftikhar Rasool, Inspector (PW-14), who on 23.12.2008 obtained physical remand of the appellant. During the course of interrogation, in pursuance of disclosure on 26.12.2008, the appellant led to the recovery of rifle (P-4) along with four live bullets (P-6/1-4), which were taken into possession vide recovery memo Exh.PN. The Investigating Officer also prepared rough site plan of the place of recovery (Exh.PN/1).
5. During the course of investigation having found the appellant guilty, the Investigating Officer prepared report under section 173, Cr.P.C. while placing his name in column No.3, which was sent to the Court of Session en-routed through the Illaqa Magistrate as provided under section 190(2), Cr.P.C. On 27.10.2009, the learned trial court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as fourteen (14) prosecution witnesses.
6. Occular account in this case consists of the statements of Muhammad Rafique, complainant (PW-4) and Faqir Hussain (PW-5). On presentation of complaint Muhammad Hayat, S.I. (PW-1) had chalked out formal FIR while Syed Younas Bukhari, Draftsman (PW 7) had prepared scaled site plan of the place of occurrence. Investigation, in this case was conducted by Nazir Hussain, Inspector (PW-12), Muhammad Saeed, Inspector (PW-13) and Iftikhar Rasool, Inspector (PW-14).
Dr. Ahmed Raza Khan (PW-10) had conducted postmortem examination over the dead body of Azhar Abbas/deceased and observed following injuries on his person:-
"Injury No.1-A
A lacerated wound 3 cm x 2.5 cm with inverted margins and surrounding collar of abrasion, oval in shape on the front aspect of the right upper chest, 6 cm right of the midline, on the right clavicle.
Injury No.1-B
A lacerated wound 1 x 1 cm, with everted margins, circular in shape on the back of the left side of the chest, 9 cm below the left shoulder and 6 cm from the left axilla at One O'clock position.
On Dissection of the Chest
The projectile pierced the skin, superficial tissues and muscles and entered the chest cavity at injury site 1-A. It fractured the right clavicle and first rib of the right ribcage. It then perforated the middle lobe of the right lung, then it lacerated the ascending aorta and finally after perforating the upper lobe of the left lung, the projectile exit out a Injury site 1-B after it fractured the fourth rib posteriorly, chest cavity was full of blood and clothes."
After conducting postmortem examination the doctor rendered the following opinion:-
"Injuries stated above were ante mortem in nature and caused by fire arm weapon. Cause of death in this case was damage to both lungs and ascending aorta under Injury No.1 which led to haemorrhage, shock and death. Probable time between injury and death was within few minutes and time between death and post mortem was between 17 to 24 hours."
Statements of rest of the prosecution witnesses are formal in nature.
7. Vide his statement recorded on 10.11.2013, learned ADPP gave up Moheen-ud-Din Butt, PW, being unnecessary. On 24.03.2011 learned DDPP tendered in evidence the report of Chemical Examiner (Exh.PN), report of Serologist (Exh.PO) and report of Forensic Science Laboratory (Exh.PP). On 19.12.2011, learned ADPP closed the prosecution evidence.
8. The appellant was examined under section 342, Cr.P.C. wherein he opted not to appear as his own witness in terms of section 340(2), Cr.P.C. in disproof of allegations levelled against him in the prosecution evidence. He, however, opted to adduce evidence in his defence. While replying to the questions why this case against him and why the PWs deposed against him, the appellant made the following deposition: -
"That in fact all the original facts were concealed by the prosecution and concocted facts were told by the complainant and his witnesses before this learned court, due to the reason that complainant party through this false case is blackmailing me as I married with the maternal cousin, namely Fozia, of complainant and later on I contracted second marriage with one Uzma, the later marriage is a love marriage and the complainant and his other relatives continuously threatened me to divorce the second wife otherwise I will be taught with a lesson by the complainant party and unfortunately the death of Azhar Abbas was caused by some unknown persons accidentally during a marriage ceremony and the complainant party involved me and other co-accused in this false case and during whole the proceedings the only and lonely demand from the complainant side is to divorce Uzam but I cannot do this, due to the reason that I have two children from Uzma and one daughter from Fozia. I am innocent and I did not murder Azhar Hussain and I can depose this fact on holy Quran".
9. Learned trial court after evaluating the evidence available on record, found version of the prosecution proved beyond shadow of reasonable doubt against the appellant, resulting into his conviction in the afore-stated terms.
10. At the very outset, learned counsel for the appellant contended that the impugned judgment has been recorded by the learned trial court in a slipshod manner in derogation to the material available on record. Further contended that the story advanced by the prosecution on the face of it does not sound sense and the FIR was lodged after due deliberations and consultation. It was argued that the presence of the prosecution witnesses at the place of occurrence at the relevant time is highly doubtful. Contended that there are glaring contradictions in the statements of the prosecution witnesses with regard to mode and manner of occurrence, hence they could not be termed as truthful witnesses. Learned counsel argued that medical evidence does not corroborate the prosecution case as postmortem examination was conducted with a delay of seventeen hours. It was contended on behalf of the appellant that there is absolutely no evidence with regard to motive. Further submitted that on the same set of evidence three accused were acquitted of the charge and although appeal against their acquittal was filed, however, the same was dismissed as having not pressed. As far as report of the Forensic Science Laboratory (Exh.PP) is concerned, it was argued that the same being of corroborative nature, it does not establish guilt of the appellant in isolation. Finally it was argued that if the whole prosecution version is presumed to be true even then as the appellant has been ascribed single fire shot upon the person of the deceased coupled with the fact that the occurrence had taken place at the spur of moment, it is not a case of capital punishment and prayed for alternative sentence provided under the statute.
11. On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant. It was argued that it is a broad-daylight occurrence, which had taken place on 14.12.2008 at 3:00 p.m. while the matter was reported to the police at 4:25 p.m. with quite promptitude in which the appellant is duly named with his specific role. Parties are known to each other being residents of the same vicinity. Contended that according to prosecution accusations the appellant while entering in to the house of the complainant had made successive fire shots upon Azhar Abbas, however one was subsequently proved fatal. It was argued that prosecution witnesses of the occular account while appearing in the witness-box fully substantiated the prosecution case on minute details. The complainant being inmate of the house, his presence at the place of occurrence at the relevant time could not be doubted. Argued that although the prosecution witnesses were subjected to lengthy cross-examination, however, nothing adverse to the prosecution version could be brought on record. Learned counsel submitted that medical evidence fully corroborates the prosecution case. Contended that after arrest of the appellant, rifle .44-bore was recovered, which was sent to the office of Forensic Science Laboratory and report of the concerned quarter in this regard is positive. Learned counsel went on arguing that the appellant had committed the occurrence on a petty issue, who was also found guilty during the course of investigation as such his name was placed in column No.3 of the report prepared under section 173, Cr.P.C. Learned counsel finally argued that the prosecution through leading cogent and confidence inspiring evidence established its case against the appellant, which squarely attracted the provisions of section 302(b), P.P.C., and the learned trial court fell, in error while recording conviction/sentence under section 302(c), P.P.C.. Hence, learned Division Bench had rightly issued notice against the appellant for enhancement in sentence under section 302(b), P.P.C.
12 We have heard the arguments advanced from both sides and perused the record available on file with the able assistance of learned counsel for the parties.
13. In the instant case the occurrence is stated to have taken place on 14.12.2008 at 3:00 p.m. while the matter was reported to the police at 4:25 p.m. whereas inter se distance between the place of occurrence and the Police Station is 1-1/2 KMs. Hence, in all eventualities it is a promptly lodged FIR wherein all details have been mentioned that the appellant after breaking the slab constructed by the deceased exchanged hot words with him and being infuriated he took out rifle from his house and while entering into the house of the complainant, resorted to firing upon the deceased landing at right side of his chest which proved fatal. Parties are known to each other as they are residents of the same vicinity. In order to substantiate its version the prosecution has led evidence in the shape of occular account, motive, medical evidence, recovery of rifle and report of Forensic Science Laboratory in this regard, investigation and other pieces of evidence.
As far as occular account in this case is concerned the same has been furnished through the statement of Muhammad Rafique, complainant, who appeared during the course of trial as PW-4. His statement is corroborated by Faqir Hussain (PW-5). Both the prosecution witnesses have claimed that they were present at the place of occurrence and had seen the mode and manner of occurrence. As far as presence of Muhammad Rafique complainant/PW-4 is concerned, he is real brother of the deceased and resident of the same house where the occurrence had taken place. Hence, in all eventualities his presence at the place of occurrence is quite natural. As far as Faqir Hussain (PW-5) is concerned he is cousin of the complainant, as well as, the deceased. He is also resident of the nearby vicinity and cultivator by profession. Hence, presence of both the prosecution witnesses at the place of occurrence at the relevant time is fully established. While appearing in the witness-box, both the prosecution witnesses remained unanimous qua the time, date, place, mode and manner of occurrence, as well as, role played by the appellant during the occurrence. The defence has cross-examined the prosecution witnesses on these aspects at length but could not detect anything, which may hamper the salient features of the prosecution vesion regarding the afore-stated aspects of the case. All the details given by the prosecution witnesses on the salient features of the prosecution case do not imprint any impression from where it could be gathered that they had not seen the occurrence. Although there are certain contradictions in the statements of PWs of ocular account, but those are of minor nature which do not hamper the prosecution version on salient features. Hence, it can safely be held that the prosecution version qua occular account is reliable, trustworthy and inspires confidence.
14. As far as medical evidence in this case is concerned, Dr. Ahmed Raza Khan (PW-10) had conducted postmortem examination on the dead body of Muhammad Azhar Abbas, deceased. The locale/stamp of injury ascribed to the appellant on the person of deceased is fully corroborated from the medical evidence and according to doctor injury ascribed to the appellant was caused by firearm, which proved fatal. Moreover, the duration between injury and death as observed by the doctor also coincides with the time of occurrence.
15. At the time of spot inspection, the Investigating Officer had collected three crime empties of rifle .44-bore, which were dispatched to the office of Forensic Science Laboratory. Even the marks of bullets were found on the wall to further substantiate the prosecution case. After arrest of the appellant he had got recovered rifle .44-bore (P-4), which was transmitted to the quarter concerned. Report of the Forensic Science Laboratory (Exh.PP) in this regard is positive, which fully establishes link of the appellant with the occurrence.
16. Fact also remains that at the time of spot inspection the Investigating Officer had taken into possession bloodstained earth where the deceased had received injuries, which was dispatched to the offices of Chemical Examiner and Serologist and according to report of the concerned quarter (Exh.PO) its origin was determined as human blood.
17. The accumulative effect of the whole discussion is that prosecution has been succeeded in bringing home guilt against the appellant through reliable, trust-worthy, substantive evidence on the record, which in other words is unshaken and confidence inspring. From the close scrutiny of the material brought forth on record it reflects that there is sufficient incriminating evidence available on record to record conviction under section 302(b), P.P.C. The appellant had approached the place of occurrence after preparation while arming himself with a lethal weapon like rifle .44-bore, which further supplements that it was a case falling within the ambit of section 302(b), P.P.C., and in no way there is glimpse of any compelling circumstance, which may bring the case of the appellant under the provisions of section 302(c), P.P.C. Hence, the learned trial court fell in error while recording conviction under section 302(c), P.P.C. We have noticed that in the connected appeal bearing Crl. Appeal No.1403/2008, while admitting the appeal by learned Division Bench, notice for enhancement of sentence from section 302(c), P.P.C., to section 302(b), P.P.C., has already been issued. Therefore, at this stage issuance of notice for enhancement in sentence would be futile exercise. Hence, while taking into consideration the material available on record, the appellant is convicted under the provisions of section 302(b), P.P.C.
18. Moreover, there is sufficient material available on record that the appellant had committed the occurrence while scaling over wall of the house of the complainant, hence provisions of section 452, P.P.C., are fully attracted.
19. Now the question arises what should be the sentence under section 302(b), P.P.C., in proportionate to the act committed by the appellant. Admittedly the occurrence had taken place without long standing enmity. Moreover, the appellant has been ascribed three fire shots, however only one was found on the person of the deceased. Admittedly on the same set of evidence three accused were acquitted of the charge and though their acquittal was assailed through the instant appeal, however, the same was dismissed as having not pressed to their extent. All these facts when taken into consideration, we are of the considered view that the appellant has made out a case for infliction of alternative sentence of imprisonment for life. Guidance in this regard is sought from the ratio decidendi laid down by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Amin v. The State (2016 SCMR 116) following principle was laid down:
"----S. 302(b)---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd---Death as Ta'zir---Partial compromise---Effect---Partial compromise may not have any bearing upon conviction of an accused person in case of Ta'zir but it may have, in the circumstances of a given case, some relevant to the question of sentence in such a case."
Moreover, in the case of Muhammad Riaz and another v. The State and another (2007 SCMR 1413); following principle was laid down:-
"No doubt normal penalty for an act of commission of Qatl-i-Amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case."
Similar view was affirmed in the case of Muhammad Sharif v. The State (PLD 2009 Supreme Court 709); wherein it was held as under:-
"It has been seen and observed from the perusal of the various precedents in relation to section 302 of P.P.C. in particular its clause (b), that there is a choice and discretion left with the Court to inflict punishment "with death or imprisonment for life as tazir having regard to the facts and circumstances of the case."
20. This Court is conscious of the fact that the learned trial court has sentenced the appellant under section 302(c), P.P.C., to imprisonment for life, which is alien to the aforesaid provision. However, this Court has concluded that the sentence of imprisonment for life under section 302(b), P.P.C., would meet the ends of justice being directly in proportionate to the act of the appellant. While enhancing the sentence of the, appellant from imprisonment for life under section 302(c), P.P.C., (alien to the statute), notice was mandatory to be issued, but this Court has observed that while dealing with Crl. Appeal No.1403/2012, this Court has already issued notice vide order dated 12.11.2013 as referred above. Therefore, issuance of notice at this stage would be mere a futile exercise. The accumulative effect of the aforesaid discussion is that the appellant is ordered to be convicted under section 302(b), P.P.C., to imprisonment for life with direction to pay Rs.3,00,000/- as compensation to legal heirs of the deceased in terms of section 544-A, Cr.P.C. and in case of default in payment thereof, to further undergo S.I. for six months. The sentence recorded by the learned trial court under the provisions of section 452, P.P.C., however, is maintained. All the sentences inflicted upon the appellant are directed to run concurrently and benefit of section 382-B, Cr.P.C. is also extended in his favour.
21. As far as Crl. Appeal No.1403/2012 filed by the complainant in which a learned Division Bench of this Court has already issued notice for enhancement of sentence which has already been dealt with by this Court while dealing with the connected Crl. Appeal No.1248/2012, hence it has borne fruit, therefore, no order is required to be passed in the appeal in hand.
JK/M-36/L Order accordingly.