ALI ASGHAR Versus State
SHEHRAM SARWAR CH., J.--- Ali Asghar (appellant) was tried by the learned Addl Sessions Judge, Sahiwal in case FIR No.413 dated 01.08.2014, offence under Sections 302 and 34, P.P.C., registered at Police Station Harappa District Sahiwal for the murder of Ali Akhtar, husband of the complainant . Vide judgment dated 01.06.2016 passed by the learned Addl. Sessions Judge, Sahiwal, the appellant has been convicted under Section 302(b), P.P.C. and sentenced to death, with a further direction to pay Rs.2,00,000/- (rupees two lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo imprisonment for six months. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.88 of 2016 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Exh.PB/1) registered on the statement (Ex.PB) of Mst. Robina Kausar, complainant (PW.2) is that on 01.08.2014 her father namely Muhammad Bashir had come to her house due to Eid, whereas her brother-in-law (Jaith) namely Safdar Ali was also present in her house. At about 09:30 a.m. Ali Akhtar, Muhammad Bashir and Safdar Ali (husband, father and brother-in-law respectively) were talking with each and in the meanwhile elder brother-in-law of the complainant namely Ali Asghar (appellant) armed with .12-bore repeater along with his wife Bashiran Bibi entered the house of the complainant. Bashiran Bibi raised a lalkara to teach a lesson to Ali Akhtar for not giving the share of Ahata, whereupon the appellant with .12-bore repeater made straight firing at Ali Akhtar, hitting on his chest, left shoulder and bicep. After sustaining injuries, Ali Akhtar fell on the ground. The complainant party tried to capture Ali Asghar but he extended threats that if anyone came near would be done to death. On hue and cry of the complainant party, the people of locality attracted at the spot and on seeing them, the appellant along with Bashiran Bibi fled away from the place of occurrence. The complainant along with Muhammad Bashir and Safdar Ali witnessed the occurrence. Ali Akhtar succumbed to the injuries on the spot due to over bleeding. Motive behind the occur-rence is that there was a dispute of Ahata between the appellant and the deceased and due to that grudge the appellant committed murder of the deceased.
3. We have heard arguments of learned counsel for the parties as well as learned Addl. Prosecutor General for the State to their entire satisfaction, given our serious consideration to their respective submissions and also perused the record.
4. This unfortunate incident wherein All Akhtar (deceased) husband of the complainant lost his life, as per prosecution, took place on 01.08.2014 at 09:30 a.m. within the area of Chak No.102/6AR, which is at a distance of three kilometers from Police Station Harappa District Sahiwal. The matter was reported to the police on the statement (Ex.PB) of Mst. Robina Kausar, complainant (PW.2) on the same day at 11:20 p.m. i.e. about one hour and fifty minutes after the occurrence and formal FIR (Ex.PB/1) was got registered. Even autopsy of the dead-body of deceased was conducted on the same day at 04.00 p.m. i.e. within six and a half hours of the occurrence. Therefore, we hold that the matter was reported to the police with due promptitude which rules out the chances of fabrication and concoction on the part of complainant.
5. The ocular account was furnished by Mst. Robina Kausar, complainant (PW.2) and Safdar Ali (PW.3). The occurrence took place in the area of Chak No.102/6AR, which has not been disputed by the defence. The witnesses of ocular account were residents of the same area where the incident took place, therefore, their presence on the spot at the time of incident cannot be considered unnatural or improbable. Though the eye-witnesses are closely related to the deceased, as the complainant (PW.2) is his wife whereas Safdar Ali (PW.3) is his brother, but merely because of their (eye-witnesses) close relationship with the deceased, their evidence cannot be discarded. The aforesaid eye-witnesses were subjected to lengthy cross-examination but they remained consistent on material aspects of the case and nothing favourable to the defence could be extracted. Therefore, we hold that the witnesses of ocular account namely Mst. Robina Kausar, complainant (PW.2) and Safdar Ali (PW.3) were present on the spot and had witnessed the occurrence.
6. In the FIR as well as before the learned trial court it was case of the prosecution that the appellant made straight firing at the deceased, hitting, on his chest, left shoulder and bicep. Dr. Ahmad Zewaqar, who conducted postmortem examination of the dead body of deceased, appeared before the learned trial court as PW.11 and furnished the medical evidence. Postmortem examination report prepared by the said medical officer showing injuries on the person of the deceased i.e. multiple lacerated wounds on frontal part of left side of chest including frontal part of left upper arm, are available on record as Ex.PK and Ex.PK/1. Therefore, in our view, the ocular account in this case is fully supported by medical evidence.
7. Motive behind the occurrence as alleged in the FIR was to the effect that there was a dispute of Ahata between the appellant and the deceased and due to that grudge, the appellant committed murder of the deceased. The complainant (PW.2) in his cross-examination has admitted that no civil suit was pending between the deceased and the appellant at the time of occurrence and no application regarding dispute of Ihata was pending before any forum or revenue authority. Moreover, no independent witness qua motive was brought forward during the course of investigation or at trial. In this view of the matter, we hold that the prosecution has failed to substantiate motive against the appellant.
8. So far as alleged recovery of .12-bore repeater (P.3) at the instance of appellant is concerned, the same is immaterial because the appellant was arrested on 15.08.2014 whereas the crime empties were received in the office of Punjab Forensic Science Agency on 29.12.2014 i.e. after the arrest of the appellant. It is, by now, well established proposition of law that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the case of "Jehanzir v. Nazar Farid and another" (2002 SCMR 1986), "Israr Ali v. The State" (2007 SCMR 525) and "Ali Sher and others v. The State" (2008 SCMR 707).
9. Now we will discuss the version of the appellant which was taken by him in his statement recorded under Section 342 of the Cr.P.C. The appellant neither opted to appear as his own witness in disproof of the allegations levelled against him as provided under Section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. Considering above, it is concluded that the appellant has failed to prove his defence plea and learned trial Court has rightly discarded the same with sufficient reasons.
10 From the above circumstances, we are of the considered view that even if the evidence of motive and recovery of .12-bore repeater (P.3) at the instance of the appellant is excluded from consideration, there is sufficient incriminating evidence on the record against him in the form of straightforward and confidence inspiring ocular account furnished by Mst. Robina Kausar, complainant (PW.2) and Safdar Ali (PW.3), fully supported by the medical evidence i.e. statement of Dr. Ahmad Zewaqar (PW.11), postmortem examination report (Ex.PK and Ex.PK/1), to maintain his conviction under Section 302(b), P.P.C., which is accordingly maintained. However, it is not a case of capital punishment because of the reason that: (i) the motive set up by the prosecution has not been believed by us; and (ii) the recovery of .12 bore repeater (P.3) at the instance of the appellant has not been proved.
11. All the above facts of the case lead us to the conclusion that there is extenuating circumstance, on the basis of which the appellant could not be made liable to the maximum punishment provided under Section 302(b), P.P.C., rather the ends of justice would be met, if his death sentence is converted into imprisonment for life. In this regard, reliance may be placed on the case law reported as "Mir Muhamniad alias Miro v. The State" (2009 SCMR 1188) and "Zafar lqbal and others v. The State" (2014 SCMR 1227).
12. Therefore, while maintaining the conviction under Section 302(b), P.P.C., we alter the sentence of Ali Asghar (appellant) from death to imprisonment for life. The amount of compensation and the punishment in default whereof, as ordered by the learned trial court, are maintained. The appeal in hand stands dismissed with the above modification in the impugned judgment.
13. Murder Reference No.88 of 2016 is answered in the NEGATIVE and the sentence of death awarded to Ali Asghar (convict) is NOT CONFIRMED.
JK/A-27/L Sentence modified.