PLJ 2009 Cr.C. (
[
Present: Syed Sajjad Hussain Shah and
Muhammad Ahsan Bhoon, JJ.
MUHAMMAD ASIF and another--Appellants
versus
STATE--Respondent
Crl. Appeal No. 210 of 2002, heard on 29.10.2008.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 34--Criminal Procedure of Code, (V of 1898), S. 410--Conviction and sentence awarded by trial Court--Challenge to--Accused was not nominated in FIR--Benefit of doubt--Acquittal--Appellant was not nominated accused of the alleged occurrence rather he was nominated in the supplementary statement of complainant and in statement of PW. u/S. 161 Cr.P.C, why he was not nominated in FIR--Appellant was saddled with the responsibility of causing fire-arm injury on the person of deceased--No post-mortem was conducted, according to doctor's evidence there was nothing on file that what was the cause of death of deceased--Case against appellant was not free from doubt--Appeal allowed.
[Pp. 890 & 891] A, B, C & D
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 452 & 34--Criminal Procedure Code, (V of 1898), Ss. 410 & 362-B--Conviction and sentence awarded by trial Court--Appeal against--Modification in sentence--Appreciation of evidence--Motive behind the occurrence--Compromise--Sentence reduction in--Complainant admitted that the dispute of property which was the motive of occurrence, that was between the complainant and the acquittal accused--Complainant was present on spot against whom the motive was available to acquitted accused, why he was not the target of the accused--Appellant had nothing to do with the said motive except that he was related to the acquitted accused as well as complainant and said accused were also relative of the complainant--It was admitted by the complainant that he had compromised time of occurrence--Death sentence of appellant was converted into imprisonment for life--Appeal dismissed with the above modification.
[Pp. 892] E, F & G
Mr. Aftab Ahmad Gujjar, Malik Abdul Qayyum and Sardar Tariq Masood Khan, Advocates for Appellants.
Ch. Muhammad Tariq, Addl. PG for State.
Mr. Altaf Hussain Sheikh, Advocate for Complainant.
Date of hearing: 29.10.2008.
Judgment
Muhammad Ahsan Bhoon, J.--Cr. Appeal No. 210/02 titled Muhammad Asif and another vs. The State has been filed by convicts/appellants and Cr. Appeal No. 400/02 titled Ghulam Rasool vs. Muhammad Afzal etc. has been filed by the complainant against acquittal of Muhammad Afzal and Sajid against the judgment dated 22.4.2002 passed by the learned Addl. Sessions Judge Attock whereby appellant Muhammad Asif and Raees Khan were convicted under Sections 302(b)/34 PPC and sentencd to death each on two counts and to pay rupees One Lac each on two counts to the legal heirs of the each deceased under Section 544-A Cr.P.C. and in default to further undergo 2 years R.I. each in case FIR No. 117 dated 27.8.2001, offence under Sections 302/452/324 PPC registered at Police Station Rangoo Tehsil and District Attock whereas the learned trial Court has sent Murder Reference No. 285/02 for confirmation of death sentence of the appellants or otherwise. We purpose to dispose of these there matters through this judgment as the same arise out of the same FIR.
2. The prosecution story in brief as narrated in FIR Ex.P.M. by Ghulam Rasul complainant (P.W. 11) is that on 27.8.2001 at about 12 Noon his wife Ashrafia deceased, daughter-in-law Sobia deceased and Mst. Maghyoob Bibi (PW 12) were sitting in the verandah of their haveli whereas he was present in the adjacent haveli owed by him; that upon the hue and cry he went to the haveli/place of occurrence where he saw Muhammad Asif accused armed with pistol, one unknown person armed with pistol who were present in the Courtyard of the house whereas Muhammad Afzal accused armed with gun and Sajid accused armed with pistol were standing inside the haveli near the door; that Asif made fire which hit on the head of Mst. Sobia who fell down there and died at the spot whereafter the unknown person also made a fire which hit on the head of Mst. Ashrafia who being injured fell down on the ground; that Muhammad Afzal and Sajid made no fire; that upon hue and cry all the accused escaped from there and number of villagers had gathered there.
The motive behind the occurrence was that he (complainant) was having the dispute of property with Muhammad Afzal etc. and due to this reason all the accused in furtherance of their common intention had launched an attack on his house and committed the murder of his daughter-in-law and caused the injury to his wife.
3. After due investigation report under Section 173, Cr.P.C. was submitted in the learned trial Court. Charge was framed against the appellants who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellants were examined under Section 342 Cr.P.C. In reply to Question No. 6 Muhammad Asif appellant replied as under:
"I have no motive whatsoever to commit the murder of the deceased. I am straindly related to Afzal and Sajid may co-accused. Afzal and Sajid are may step maternal uncles and I have no visiting terms with them and I or my father has not joint property with them. In fact my farther is real brother of the complainant. The complainant is running a shop at Gondal and he owned Rs. 19250/- from my father. My father mostly resides in Karachi. He asked to demand this money from the complainant and I used to go to the complainant and insists that to pay back the money. I was involved for that reason. I am innocent."
In reply to Question No. 6 Raees Khan appellant replied as under:
"I am innocent in this case. As a matter of fact when I came to know about the false involvement of Asif accused in this case and arrest by the police on the next day of the occurrence, I came to the P.S. in his defence and in support of his innocence because Asif accused, on the day of occurrence and at the time of occurrence was celebrating a marriage with me at Jahangira. Due to my appearance in defence of Asif accused, the complainant was annoyed who to stop me to appear in his defence, substituted me from the accused who has been shown as unknown in the FIR. I never committed this crime nor I have any reason to do so. I have no relation or friendship even with Sajid and Afzal accused."
Neither they opted to appear as their own witness in disproof of the allegations levelled against them as required u/S. 340(2) Cr.P.C. nor did they adduce defence evidence. The learned trial Court after hearing the parties, passed the above said convictions and sentences.
4. Heard. Record perused.
5. The ocular account in this case was furnished by Ghulam Rasool complainant (P.W. 11) and Mst. Magyoob Bibi (P.W. 12). The complainant while appearing before the Court reiterated the story of FIR. His statement was corroborated by Mst. Magyoob Bibi (PW. 12).
6. It is pertinent to mention over here that Raees Khan appellant was not a nominated accused of the alleged occurrence rather he was nominated in the supplementary statement of the complainant and in statement of Mst. Maghyoob Bibi under Section 161 Cr.P.C. but both the witnesses stated in their examination-in-chief that Raees Khan accused convict was known to them even prior to the alleged occurrence, so if the appellant Raees Khan was present on the spot and he was known to both the P.Ws prior to occurrence, why he was not nominated in the FIR. The appellant Raees Khan was saddled with the responsibility of causing fire-arm injury on the person of Mst. Ashrafia Bibi deceased but no post-mortem examination of said lady was conducted and there is only statement of Dr. Khalid Abdul Mueed (PW. 5) which is reproduced below:
"On 27.8.2001 I was posted as CMO DHQ Hospital Rawalpindi. On that day Mst. Ashrafia Bibi was brought to the hospital at about 3.25 p.m. and she had already died. In this regard my certificate is Ex. PF which is in my hand and bears may signatures."
The above evidence would further show that there is nothing on file that what was the cause of death of said Mst. Ashrafia Bibi deceased.
7. As far as the recovery of weapons is concerned, that was disbelieved by the learned trial Court as empties collected from the spot were kept in `malkhana' till the recovery of the weapons of offence after the arrest of the accused and the same were sent together to the Forensic Science Laboratory. Hence we are of the considered view that case against the appellant Raees Khan is not free from doubt and Cr. Appeal No. 210/02 to the extent of Raees Khan appellant is allowed and conviction and sentence awarded to him by the impugned judgment is set aside and he is acquitted of the charge. He is in jail, he shall be released forthwith, if not required in any other criminal case.
7-A. As far as the case of appellant Muhammad Asif is concerned, he was duly nominated in the promptly lodged FIR with effective role of causing fire-arm injury on head of Mst. Sobia Bibi and same fact is proved through the evidence of eye-witnesses Ghulam Rasool (PW. 11) and Mst. Maghyoob Bibi (12) and ocular account is further corroborated by the medical evidence furnished by Dr. Anila Nasir (PW. 1), who conducted post-mortem examination of Mst. Sobia deceased. Although the recovery of weapon of offence was not believed by the learned trial Court yet the mere non-recovery of weapon of offence cannot take away the probative force of ocular account which is supported by the medical evidence to the extent of appellant Muhammad Asif particularly in a day light occurrence which took place in the house of the deceased as well as the complainant in thickly populated area i.e. village of occurrence of complainant as well as the appellant, so prosecution has proved its case against Muhammad Asif appellant through ocular as well as medical evidence to the extent of murder of Mst. Sobia by appellant Asif.
8. As far as quantum of sentence is concerned, it is available in the FIR itself that the complainant reached at the place of occurrence on hearing hue and cry of Mst. Ashrafia Bibi his wife and he admitted this fact that first fire was made by Muhammad Asif appellant-convict and he did not know what happened prior to the occurrence between the deceased and the accused Asif who is real nephew of the complainant and similarly it is also admitted that the dispute of property which was the motive of occurrence, that was between the complainant and the acquitted accused Muhammad Afzal and Sajid. The complainant was present on the spot against whom the motive was available to acquitted accused, why he was not the target of the accused. The appellant Muhammad Asif had nothing to do with the said motive except that he was related to the acquitted accused as well as complainant and said accused were also relative of the complainant. It was admitted by the complainant that he had compromised time of occurrence, so in view of the above, death sentence of Muhammad Asif appellant for murder of Mst. Sobia is converted into imprisonment for life. Benefit of Section 382-B Cr.P.C. is extended to him. However, the sentence of compensation shall remain in tact.
9. It has been established from above analysis of evidence that Muhammad Asif appellant had not caused any injury to Mst. Ashrafia Bibi deceased nor her post-mortem examination was conducted, therefore, conviction and sentence awarded to Muhammad Asif appellant for committing the murder of Mst. Ashrafia is set aside.
10. With the above modification the Cr. Appeal No. 210/02 to the extent of Muhammad Asif appellant is dismissed. Cr. Appeal
No. 400/2002 against acquittal of Muhammad Afzal and Sajid, who were not attributed any overt act, having no merits is dismissed. Murder Reference is answered in negative.
(N.I.) Order accordingly.