PLJ 2008 SC 1129
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
FAIZ AHMED--Appellant
versus
STATE--Respondent
Crl. A. No. 15 of 2005, decided on 6.6.2008.
(On appeal from the judgment dated 14.4.2003 of the Lahore High Court, Lahore passed in Crl. Appeal No. 773 of 1999 and M.R. No. 386/1999).
----S. 302(b)--Conviction and sentence recorded against accused by trial Court--Challenge to--Confirmed by High Court--Assailed--Appreciation of evidence--Specific role of firing--Motive--Benefit of doubt--Held: Report has been lodged with promptitude excluding all chances of deliberation and consultation--Appellant is one of the accused persons directly nominated in the report for the commission of the offence, specific role of firing, resulting in the murder has been attributed to him and two eye-witnesses of the spot claimed to have joined the complainant in the way have fully supported the prosecution story--Eye-witnesses are related to the deceased but mere relationship of the witnesses inter-se and with the deceased is not sufficient to term them as interested witnesses unless it is found that there was any previous enmity or ill-will between the parties and the witnesses had a motive to falsely implicate the appellant in a criminal case--Appellant is in death cell for the last about 14 years--Motive is alien to him and co-accused charged for firing, has been acquitted--Therefore, Supreme Court inclined to reduce his sentence from death to imprisonment for life, to meet the ends of justice--Appeal partly allowed. [P. 1133] A, B & C
Malik Saeed Hassan, Sr. ASC for Appellant.
Mr. Shabbir Lali, Addl. P.G. for Respondent.
Date of hearing: 29.5.2008
Judgment
Ijaz-ul-Hassan, J.--Appellant Faiz Ahmed son of Noor Muhammad aged about 25 years and his maternal uncle co-accused Muhammad Ashraf son of Mian Khan, aged about 52 years, both residents of village `Dingi' Par Nasiba, Hafizabad, were tried by learned Additional Sessions Judge, Hafizabad on the charge of having, on 21.12.1994 at about 1.45 p.m., in the precincts of Police Station Sukheke, committed murder of Mst. Noor Anisa, daughter of complainant Inayat Ullah, a young girl of 21/22 years of age. At the conclusion of trial, vide judgment dated 30.8.1999, appellant was convicted under Section 302 (b) PPC and awarded the penalty of death, whereas, co-accused Muhammad Ashraf was convicted under Section 302 (b) PPC and sentenced to suffer life imprisonment with benefit of Section 382-B Cr.P.C. Both the convicts were directed to pay Rs. 25000/- (each) as compensation under Section 544 (A) Cr.P.C. Half of the amount, on realization, was ordered to be paid to legal heirs of the deceased, or in default whereof to undergo further six months S.I each.
2. Feeling aggrieved, the convicts filed Criminal Appeal No. 773 of 1999. The learned Trial Judge also forwarded Murder Reference No. 386/1999 for confirmation of death sentence of appellant Faiz Ahmed. A learned Division Bench of the Lahore High Court, Lahore, vide its judgment dated 14.4.2003 dismissed appeal to the extent of Faiz Ahmed appellant and up held his conviction and sentence, whereas, appeal concerning Muhammad Ashraf co-accused, was accepted and he was acquitted of the charge. Hence instant appeal by appellant Faiz Ahmed with leave of this Court, granted on 25.1.2005.
3. Facts of the prosecution case as set out in F.I.R (Ex.PH) lodged by complainant Inayat Ullah (since dead) shortly stated are, that on the fateful day i.e. 21.12.1994 at about 1.45 p.m. complainant and his daughter Mst. Noor Anisa were on the way to `Mandi Sukheke' for purchasing articles for Mst. Noor Anisa's `Rukhsati'. In the way PWs Shafqat Ali and. Akhtar Ali also joined them. On reaching the road, accused Faiz Ahmed and Muhammad Ashraf armed with .12 bore guns alighted from a motorcar driven by Shaukat Ali. Faiz Ahmed fired hitting on the light side of Mst. Noor Anisa's head. Muhammad Ashraf also fired, which hit at left flank of Mst. Noor Anisa, who collapsed on the ground. Thereafter, Faiz Ahmed fired another shot at the right flank, culminating in the death of Mst. Noor Anisa. Shafqat Ali and Akhtar Ali PWs were stated to have witnessed the occurrence.
4. The motive high-lighted in the F.I.R. was that about 13/14 years prior to the occurrence, Muhammad Ashraf had abducted Mst. Asmat Bibi daughter of the complainant and contracted marriage with her. The matter was not reported to the police due to family honour. It was disclosed that Muhammad Ashraf was interested in the hand of Mst. Noor Anisa for his nephew Hameed, but this proposal was not acceptable to the complainant. About 3/4 months prior to the incident `Nikah' of Mst. Noor Anisa was recited with one Nusrat. This caused annoyance to the accused.
5. After registration of the case Inspector Hamid Ali Khan (PW.12), the then S.H.O. Police Station Sukheke, Hafizabad, visited the spot and. prepared injury statement and inquest report of the deceased and dispatched the dead body to the mortuary for postmortem examination. He also prepared site-plan at the pointation of complainant and eye witnesses. He secured blood-stained-earth and recovered two empties of .12 bore from the spot and took the same into possession vide memos Ex. PA and Ex.PE respectively. On 16.1.1995, Faiz Ahmed accused was arrested and a .12 bore gun alongwith two cartages was recovered from him which were taken into possession vide memo (Ex.PG). After completion of investigation, in the manner described, above, challan was submitted in Court.
6. The prosecution in addition to the police officials and the formal witnesses, who remained associated with investigation of the case, examined 14 witnesses in all, including Shafqat Ali and Akhtar Ali PWs as eye-witnesses of the occurrence.
7. Dr. Shaukat Ali Wahla, (PW-5) Senior Medical Officer, Rural Health Centre, Pindi Bhattian, Hafizabad on 21.12.1994 conducted postmortem examination of the deceased and found the following:--
"1. Fire-arm graze wound 5 cm x 2 cm x bone deep on right temporal region, margins burrent, edges on the frontal side was inverted, and posterior side of wound was averted.
2. Fire-arm glancing wound « cm x « cm on right cheek.
3. Fire-arm wound 2 cm x 1 cm x 1 cm on bridge of nose.
4. Fire-arm wound of entry 3 cm x 3 cm x 10 cm on right side of abdomen 7 cm above to alliance crest, margins burnt, edges inverted.
5. Fire-arm wound of exit three in number 1 cm x 1 cm x 25 cm each on back of left side of chest over 10th, 11th, and 12th, ribs.
6. Swelling 2 cm x 2 cm culpable hard foreign body on the left flank.
7. Three wounds of exit each 1 cm x 1 cm x 26 cm on left flank. Edges were averted."
8. One pellet was recovered from Injury No. 6 and plastic cover of bullet, was recovered, under the surface of muscles of abdomen from Injury No. 4. In the opinion of doctor death occurred due to Injury No. 4, which was sufficient in the ordinary course of nature to cause death. All the injuries were anti-mortern in nature.
9. The appellant and co-accused in their statements recorded under Section 342 Cr.P.C. denied the prosecution allegations professed innocence and claimed to have been falsely charged on account of property dispute. The appellant also denied having been found in possession of gun or cartridges. None of them opted to record statement on oath as required under Section 340(2) Cr.P.C. in disproof of the charges. They declined to produce evidence in defence.
10. The trial culminated in the conviction and sentences of both the accused as mentioned and detailed above.
11. We have heard Malik Saeed Hassan, learned Advocate for the appellant, and Mr. Shabbir Lali, learned Additional Prosecutor General, representing the State and have also re-examined the material on record, with their assistance.
12. Learned counsel for the appellant, in support of the appeal contended that, there is nothing incriminating on the file to associate the appellant with the commission of crime, except the bare allegations in the FIR; that the two eye-witnesses not being independent witnesses of the occurrence, infirmities having been found in the prosecution case and doubt having crept in the prosecution version of the occurrence, the possibility of occurrence having gone un-witnessed and no independent corroboration being available in support of the ocular testimony, it could not be said that the prosecution had succeeded in proving the guilt of the appellant beyond any reasonable doubt. Concluding the arguments, learned counsel argued that on identical evidence co-accused Muhammad Ashraf had been acquitted by learned High Court, therefore, benefit of doubt should have been extended to the appellant.
13. On the contrary, learned Additional Prosecutor General, while supporting the impugned judgment maintained that overwhelming evidence was produced at the trial to connect the appeal with the crime and the appellant has not been able to show any reason for his false involvement in the case. He reiterated that the conviction and sentences awarded by trial Court were rightly upheld by High Court and as such the appeal merits outright dismissal.
14. The crime in question is alleged to have taken place on 21.12.1994 at about. 1.45 p.m. in the area of Dingi village Par Nasiba and the matter was reported to the police same day at 2.45 p.m. by complainant Inayat Ullah, at Police Station Sukheke, Hafizabad, distant 4 miles, from the site of occurrence. The report has been lodged with promptitude excluding all chances of deliberation and consultation. The appellant is one of the accused persons directly nominated in the report for the commission of the offence, specific role of firing, resulting in the murder of Mst. Noor Anisa, deceased, has been attributed to him and two eye-witnesses of the spot namely, Shafqat Ali and Akhtar Ali, claimed to have joined the complainant in the way, have fully supported the prosecution story.
15. It is true that the eye-witnesses are related to the deceased but mere relationship of the witnesses inter-se and with the deceased is not sufficient to term them as interested, witnesses unless it is found that there was any previous enmity or ill-will between the parties and the witnesses had a motive to falsely implicate the appellant in a Criminal case. In the present case, admittedly there was no previous enmity, ill-will or grudge between the appellant and the complainant party. Both the eye-witnesses remained consistent regarding time, place of occurrence and the manner in which, the incident had taken place. They were subjected to lengthy cross-examination but except for the minor discrepancies in their statements the defence had not been able to shatter their confidence sufficiently for discarding their evidence.
16. The argument of learned counsel for the appellant that on identical evidence co-accused Muhammad Ashraf had been acquitted by learned High Court, we have considered this argument, with utmost care and found from the record that co-accused was extended benefit of doubt and acquitted of the charge mainly for the reasons that to his extent, medical evidence was in conflict with the ocular account making his participation in the occurrence highly doubtful. At any event, case of the appellant is distinguishable and not at part with that of his co-accused.
17. Learned High Court has appreciated the entire evidence on record by making thread bare examination of each piece of evidence supported with reasons based on record. No piece of evidence incriminating in nature produced by the prosecution appears to have been misread, omitted from consideration or not appreciated in its true perspective.
18. However, having regard to facts and circumstances of the case, we find that the appellant is in death cell for the last about 14 years. The motive is alien to him. and co-accused charged for firing, has been acquitted. Therefore, we are inclined to reduce his sentence from death to imprisonment for life, to meet the ends of justice.
19. In view of the above, the appeal is partly allowed and conviction under Section 302 (b) PPC recorded against appellant is maintained. However, sentence of death awarded to appellant, is converted to imprisonment for life with benefit of Section 382-B Cr.P.C. The sentence of compensation under Section 544-A Cr.P.C. amounting to Rs. 25,000/- or in default to undergo six months S.I. shall remain intact.
20. Above are the detailed reasons of our short order dated 29.5.2008.
(M.S.A.) Order accordingly.