SHAHBAZ AHMAD Versus State
ABDUL SAMI KHAN, J.--- Shahbaz Ahmad appellant was tried in case FIR No.152/2007, dated 08.03.2007, under section 302, P.P.C., registered at Police Station Thikrewala District Faisalabad, by the learned Additional Sessions Judge, Faisalabad, who, vide judgment dated 29.04.2008, convicted the appellant on the charge of offence under section 302(b), P.P.C. and sentenced him to undergo life imprisonment and to pay compensation amounting to Rs.3,00,000/- to the legal heirs of Muhammad Ilyas deceased under section 544-A, Cr.P.C., failing which the appellant will further undergo S.I. for six months. The benefit of section 382-B, Cr.P.C. was also extended to the appellant. Shahbaz Ahmad appellant has challenged his conviction and sentence through the instant criminal appeal, whereas Shabbir Hussain complainant has filed. criminal revision bearing No.614 of 2008 for the enhancement of sentence awarded by the learned trial Court to the appellant.
2. The prosecution story set forth in FIR (Ex.PA/1) on the basis of complaint (Ex.PA) by Shabbir Hussain complainant is that he is resident of Chak No.95/JB. He and his brothers Muhammad Ilyas and Bashir Ahmad worked in the factory of Ahmed Nawaz Fabrics situated in Chak No.67/J.B. Malikabad. The appellant Shahbaz Ahmad also worked in the said factory and they also lived together in the quarter of the factory. On 08.03.2007 at 8.30 a.m., the complainant along with Bashir Ahmad and Muhammad Ilyas deceased were present in the quarter and one Abdul Rasheed who had been running a hotel in the factory and related to the complainant was also sitting along with them. In the meanwhile, Shahbaz Ahmad appellant came waiving Churri and started inflicting Churri blow on his brother Muhammad Ilyas which hit on his chest, left upper arms, back and left flank, who fell on the ground. The appellant made lalkara that if any body would come near, then he would be done to death and fled away from the spot. Muhammad Ilyas was taken to Allied Hospital Faisalabad injured condition for medical treatment but he succumbed to the injuries.
The motive behind the occurrence was that a few days prior to the occurrence, an altercation took place between his brother Muhammad Ilyas deceased and Shahbaz Ahmad appellant on performing their duties and due to that grudge, the appellant Shahbaz Ahmad committed the murder of his brother Muhammad Ilyas deceased.
3. After registration of FIR, investigation of the case was conducted by Abdur Razzaq SI/PW.13 and after completion of the same, report under section 173, Cr.P.C. was prepared and submitted before the learned trial Court. At the commencement of trial, the learned trial Court after observing legal formalities provided in the Code of Criminal Procedure 1898 framed charge against the appellant on 24.05.2007 to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case Against the appellant examined as many as fourteen witnesses before the learned trial Court. Shabbir Hussain complainant (PW-9), Abdul Rasheed eye-witness (PW-10), and Bashir Ahmad another eye-witness (PW-11) furnished ocular account, while Abdul Razzaq SI (PW-13) is the investigating officer who appeared before the learned trial court and stated about various steps taken by him during the course of investigation of this case. Medical evidence was furnished by Dr. Altaf Pervaiz Qasim (PW-3) who had conducted the postmortem examination on the dead body of the deceased Muhammad Ilyas. The remaining prosecution witnesses, more or less, are formal in nature. After completion of the prosecution evidence, statement of the appellant as provided under section 342, Cr.P.C. was recorded by the learned trial Court. He professed innocence and pleaded false implication in the case. He did not opt to get record his statement under section 340(2), Cr.P.C. and did not produce any witness in his defence.
4. At the end of the trial, after thrashing the entire evidence and considering the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellant as mentioned in paragraph No.1 of this judgment.
5. Learned counsel for the appellant submitted that the prosecution has miserably failed to bring the guilt of the appellant to the hilt; hence, the appellant deserves clean acquittal. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant contended that the prosecution has amply proved the case against the appellant beyond any reasonable doubt, the impugned judgment does not call for any interference by this Court, so the conviction and sentence of the appellant be maintained and his appeal be dismissed. While arguing on criminal revision, learned counsel for the petitioner/complainant contended that appellant has committed the murder of Muhammad Ilyas deceased, therefore, he is not entitled to any leniency and there is no mitigating circumstance in favour of the respondent/ appellant, so the learned trial Court erred by awarding lesser sentence of imprisonment for life to the respondent/appellant, hence prayed for enhancement of sentences awarded to him from life imprisonment to maximum punishment upto death sentence.
6. Perusal of the first information report (Ex.PA/1) reveals that the unfortunate incident took place at 8.30 a.m. on 8.3.2007 and the same was reported by Shabbir Hussain complainant (PW-9) to the police on the same day at 10:00 a.m. whereas the FIR (Ex.PA/1) was chalked at 11.00 a.m. The distance between the place of occurrence and the Police Station is about seven kilometers. All these facts clearly shows that the matter has been reported to the police with sufficient promptitude and the same facts also made it crystal clear that the matter was reported to the police without deliberations or consultations by the complainant. Some other imperative features observed by me in this case are that the appellant is duly named in FIR (Ex.PA/1) and specific role is assigned to him therein, which also find support from postmortem report of deceased (Ex.PB).
7. The prosecution has tried to prove its case against the appellant through the statements of Shabbir Hussain complainant (PW-9), Abdur Rasheed (PW-10) and Bashir Ahmad (PW-11), the witnesses of ocular account, medical evidence furnished by Dr. Altaf Pervez Qasim (PW-3) and recovery of weapons of offence i.e. Churri P-3 from the appellant. Firstly, I would like to discuss the ocular account. In order to prove the ocular account, the prosecution has produced Shabbir Hussain complainant (PW-9), Abdul Rasheed (PW 10) and Bashir Ahmad (PW-11) eye-witnesses before the learned trial Court. Shabbir Hussain complainant has leveled the allegation and attributed specific role to the appellant inflicting repeatedly blows with churri on the person of Muhammad Ilyas deceased. The version of Shabbir Hussain complainant in FIR (Ex.PA/1) is duly supported by the testimonies of PW-10 Abdul Rashid and PW-11 Bashir Ahmad. All the witnesses have rendered reasonable support to the case of the prosecution against the appellant. It is worth mentioning here that these PWs were subjected to lengthy cross-examination, but the ocular account remained un-shattered and the defence failed to extract anything favourable from their mouths to create doubt regarding their credibility and truthfulness. Although Shabbir Hussain complainant (PW-9), Abdul Rashid (PW-10), Bashir Ahmad (PW-11) and Muhammad Ilyas deceased were closely related to each other, however, there is no hard and fast rule of law that the testimony of close relatives cannot be believed merely on the basis of their relationship inter-se as well as with the deceased. Similarly law is also settled on the point that mere relationship with the deceased does not make any witness interested. The trustworthy and reliable evidence of eye-witnesses not only inspired the confidence of learned trial court but the same has also satisfied my conscious to believe upon them and I have not been able to locate any infirmity, inconsistency and material contradiction or omission in the statements of Shabbir Hussain complainant (PW.9), Abdul Rashid (PW-10) and Bashir Ahmad (PW-11) rather they had unanimously explained all material points i.e. time, date and place of occurrence and the roles played by the appellant while appearing in the witness box before the learned trial court. As already discussed above, the occurrence took place at about 08:00 a.m. on 8.3.2007, which reflect that sufficient light was available at the time of occurrence. Moreover, the parties were also well known to each other prior to the occurrence. In these circumstances, there was no chance of mistaken identify of the appellant at the time of occurrence. I may observe here that in the instant case churri has been used by the appellant for inflicting injuries on the person of the deceased so it is not a case of hit and run rather the murder must have lasted for some time so the appellant was rightly identified by the appellant at the time of occurrence. After having gone through the statements of PW-9, PW-10 and PW-11 comprehensively, I have not found any spite with these PWs to depose-falsely against the appellant and as such their testimony has succeeded to inspire my confidence.
8. Dr. Altaf Pervez (P W-3) had conducted postmortem examination on the dead body of Muhammad Ilyas. According to postmortem report (Ex.PB), the deceased sustained seven injuries with sharp edged weapon. A careful perusal of postmortem report of Muhammad Ilyas deceased (Ex.PB) would reflect that medical evidence is absolutely in line with the ocular account. The medical evidence regarding date and time of occurrence, seat of injuries on the persons of deceased and the weapon used in the commission of instant occurrence has tallied with the ocular account and during arguments learned counsel for the appellant could not point out any minor or material contradiction between medical evidence and ocular account to the extent of appellant. After taking into consideration the whole prosecution evidence, I have come to the conclusion that the case of the prosecution against the appellant is fully supported by the medical evidence.
9. As to the weapon of offence i.e. "chhuri" (P.3) recovered at the instance of the appellant is concerned, the same was recovered from the appellant on his pointing out from his quarter. According to the report of Chemical Examiner Ex.PM "chhuri" (P.3) was stained with human blood, so the prosecution has successfully proved the recovery of weapon of offence from the appellant in the shape of blood stained "chhuri" (P.3) and this is a strong corroborative piece of evidence against the appellant.
10. Adverting to motive, I observed that the prosecution has set up a specific motive in this case that few days prior to the occurrence, an altercation took place between Shahbaz Ahmad appellant and Muhammad Ilyas deceased. Although the prosecution has tried its best to establish the motive through the statements of eye-witnesses i.e. Shabbir Hussain complainant (PW-9), Abdul Rashid (PW-10) and Bashir Ahmad (PW-11), but according to my conscious the prosecution has failed lo produce any cogent and convincing evidence to prove the motive of the occurrence and what prompted the appellant to murder Muhammad Ilyas deceased before the occurrence remained shrouded in mystery.
11. Having considered the case of prosecution against the appellant from all angles, I am of the considered view that the prosecution has successfully proved its case against the appellant beyond any reasonable doubt through confidence inspiring ocular account, medical evidence and recovery of weapon of offence. Although prosecution has set up a specific motive in this case, but the same could not be proved during the trial. It is settled law that once prosecution put-forth motive, then it is none other than the prosecution, who has to prove the same and when the prosecution failed to prove motive, the same can be considered mitigating circumstance in favour of the appellant. Reliance is placed on 2014 SCMR 1464, wherein Hon'ble Supreme Court of Pakistan held as under: "that failure of the prosecution to prove the motive set up by it may have a bearing upon the question of sentence and in an appropriate case such failure may result in reduction of a sentence of death to that of imprisonment for life for safe administration of justice."
12. Although prosecution has failed to prove motive in this case, yet there is sufficient incriminating material in the shape of statements of Shabbir Ahmad (complainant) PW-9. Abdul Rashid (PW-10), Bashir Ahmad (PW-11) eye-witnesses, PW-3 Dr. Altaf Pervez Qasim, postmortem report (Ex.PB) and recovery of blood stained chhuri (P.3) at the instance of the appellant to maintain his conviction on the murder charge of Muhammad Ilyas (deceased). No doubt the sentence of death on the charge of murder is a normal penalty but in appropriate cases where some extenuating circumstances are available, the Courts have the discretion to award lesser punishment of imprisonment for life provided under section 302(b), P.P.C., the sentence of imprisonment for life awarded by the learned trial court to the appellant along with compensation of Rs.300,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C. on the murder charge of Muhammad Ilyas deceased is quite justified and the judgment recorded by the learned trial court does not call for any interference by this Court. Accordingly, Criminal Appeal No.562 of 2008 filed by Shahbaz Ahmad appellant against his conviction and sentences as well as Criminal Revision No.614 of 2008 filed by Shabbir Hussain complainant for enhancement of sentence awarded to Shahbaz Ahmad appellant stand dismissed.
WA/S-55/L Appeal dismissed.