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Petitioner: MUHAMMAD YOUSAF VS Respondent: StateHonorable Justice Tariq ShamimMalik Mukhtar Ahmad Khokhar
2009 P Cr
2009 P Cr. L J 1050
[Lahore]
Before Tariq Shamim and Saif-ur-Rehman, JJ
MUHAMMAD YOUSAF----Appellant
Versus
THE STATE----Respondent
Criminal Appeal No.137/J and Murder Reference No.191 of 2003, heard on 18th March, 2009.
Penal code (XLV of 1860)---
----S. 302(b)---Appreciation of evidence---Sentence, reduction in---F.I.R. was promptly lodged---False implication or misidentification of accused was not possible because of daylight occurrence---Complainant and other eye-witness being residents of the same house were natural witnesses of the occurrence, whose presence at the scene of incident was well explained---Relationship of eye-witnesses with the deceased by itself was not enough to discard their testimony in the absence of any previous enmity between the parties---Medical evidence was in line with the ocular account of occurrence---Recovery of blood-stained "Chhuri" at the instance of accused from his house was fully proved, which was found to be stained with human blood---Prosecution case having been proved through credible and convincing evidence, conviction of accused was maintained---All co-accused of accused had been acquitted by Trial Court on the basis of compromise with the legal heirs of the deceased and the injured prosecution witness---Occurrence had taken place all of a sudden in which accused had inflicted a solitary blow to the deceased and did not repeat the same---Accused had not come armed, at the place of occurrence, which had excluded the possibility of pre-planning and also his intention to commit the murder of the deceased---Motive behind the murder was neither directly attributed to accused nor proved at the trial---Death sentence of accused was converted into imprisonment for life in view of the said extenuating circumstances.
Malik Mukhtar Ahmad Khokhar for Appellant.
Ahsan Rasool Chattha, Dy. P.-G. for the State.
Date of hearing: 18th March, 2009.
JUDGMENT
TARIQ SHAMIM, J.--- Muhammad Yousaf, appellant, along with others involved in case bearing F.I.R. No.108 of 1998, dated 14-4-1998, registered at Police Station Moutra, Sialkot, for offences under sections 302/34 and 337-A(ii), P.P.C., were tried by the learned Additional Sessions Judge, Sialkot, who, vide his judgment dated 26-2-2003, convicted the appellant under section 302(b), P.P.C. and sentenced him to death with a direction to pay a sum of Rs.2,00,000 to the legal heirs of Hazoor Hussain deceased under section 544-A, Cr.P.C. and in default to undergo rigorous imprisonment for six months.
2. Briefly, the facts of the case, as per. F.I.R. (Exh.P.Q.) lodged by Iftikhar Ahmad complainant (P.W.2), are that on 14-4-1998, at about 4-00 p.m., the complainant was present at his Dera along with his brother Muhammad Iqbal (P.W.3) and Muhammad Ramzan, a resident of the village, whereas Hazoor Hussain the brother of the complainant was carrying out repairs on the roof of his room when Muhammad Yousaf appellant, Zulfiqar alias Bhutto, Mumtaz Ahmad alias Yahya and Muhammad Latif arrived there started abusing Hazoor. Hussain for tying his buffalo in their area upon, which Hazoor Hussain offered to untie the buffalo, however, as soon as he descended from the roof, Latif exhorted to his companions to kill Hazoor Hussain so that the source of daily quarrel is eliminated. Zulfiqar opened the attack by hurling a brick at Hazoor Hussain, which hit him near the left eye, Mumtaz fetched two Chhuris from his house and handed over one to the, appellant. The appellant inflicted an injury with the Chhuri on the left side of chest of Hazoor Hussain whereas Mumtaz caused two injuries on the right hand of Muhammad Iqbal. Hazoor Hussain died as a result of the injury `suffered by him at the hands of Muhammad Yousaf appellant whereas Iqbal went to the Civil Hospital, Daska for his treatment.
3. After supply of copies as required under the law, charge was framed against the appellant and others, to which they pleaded not guilty and claimed trial. The prosecution in. order to prove its case produced Amjad Hussain Constable (P. W.1), Khalid Mehmood (P.W.4), Shafqat Ali (P.W.5), Muhammad Anwar (P.W.6), Muhammad Ejaz (P.W.7), Muhammad Aslam Constable (P.W.8), Zafar Iqbal Constable (P.W.9), Dr. Muhammad Iqbal, Senior Medical Officer, Civil Hospital, Daska (P.W.10), Dr. Muhammad Asif Mughal, Medical Officer, R.H.C. Begowala (P.W.11), Muhammad Riaz Constable (P.W.12), Masaud Ahmad Bhatti (P. W.13), Azhar Anwar Head Constable (P. W.14), Murawat Ali (Rtd.) Sub-Inspector (P.W.15) and Khalid Mehmood A.S.-I., Police Station Noshehra Virkan (P.W.16) and Iftikhar Ahmad complainant (P.W.2) and Muhammad Iqbal (P.W.3) as eye-witnesses of the occurrence. The learned A.D.A. after tendering the reports of the Chemical Examiner (Exh.P.R. and Exh.P.S.), and that of the Serologist (Exh.P.T. and Exh.P.U.) closed the prosecution evidence.
4. Thereafter the statement of the appellant was recorded under section 342, Cr.P.C. In response to the question "why this case against you and why the P.Ws. deposed against you??' the appellant, replied as under: ---
"The P.Ws. are related inter se and deposed against me due to party faction of village."
5. The appellant neither appeared as his own witness to disprove the allegations levelled against him as required under section 340(2), Cr.P.C. nor did he adduce any evidence in his defence.
6. The learned trial Court at the conclusion of the trial convicted and sentenced the appellant as stated above. The appellant has challenged his conviction and sentence through the instant appeal whereas the learned trial Court has sent Murder Reference No.191 of 2003 for confirmation or otherwise of death sentence awarded to the appellant. Both the matters are being decided together through this single judgment.
7. After having heard the learned counsel for the appellant arid going through the record, we have noticed that the F.I.R. in this case was lodged by the complainant promptly and coupled with the fact that it was a broad-daylight occurrence, there is no possibility of tutoring or false implication or misidentification of the appellant by the complainant and others. The F.I.R. stands duly proved at the trial by Iftikhar Ahmad complainant (P.W.2). Even otherwise, the learned counsel for the appellant has not been able to extend any plausible explanation for false implication of the appellant in the crime by the complainant and others on account of party faction as urged by the appellant at the trial.
8. In his statement before the learned trial Court, Iftikhar Ahmad complainant (P.W.2) deposed that on 14-4-1998, at about 4 p.m., he was present at his Dera along with Muhammad Iqbal (P.W.3) and Muhammad Ramzan (given up P.W.), whereas Hazoor Hussain the brother of the complainant and Muhammad Iqbal (P.W.3) was carrying out repairs on the roof of his room when Muhammad Yousaf appellant, Mumtaz Ahmad, Abdul Latif and Zulfiqar accused arrived there and started abusing Hazoor Hussain for tying his buffalo in their area upon which the deceased Hazoor Hussain offered to untie the buffalo. However, as soon as he descended from the roof, Latif accused told his companions to kill Hazoor Hussain so that the source of daily quarrel is eliminated. The accused Zulfiqar opened the attack by hurling a brick at the deceased which hit him near the left eye. The accused Mumtaz fetched two Chhuris from his house and handed over one to the appellant. The appellant inflicted an injury with the Chhuri on the left side of chest of Hazoor Hussain whereas Mumtaz caused two injuries on the right hand of Muhammad Iqbal. The deceased died as a result of the injury suffered by him at the hands of the appellant. The other eye-witness of the occurrence, Muhammad Iqbal (P.W.3) also deposed on the same lines and narrated the details of the events leading to the murder of the deceased. Both these witnesses are natural witnesses as they are residents of the same house as the deceased who was their real brother and the presence at the place of occurrence at the relevant time is well-explained. With the exception of minor discrepancies in the statements of these witnesses, which are normal, no material deviation or improvement could be pointed out in their statements by the learned counsel representing the appellant. Although the witnesses are closely related to the deceased, but their evidence cannot be discarded on that ground alone particularly in the wake of no previous enmity between the parties.
9. It is pertinent to mention at this juncture that the medical evidence furnished by Dr. Muhammad Iqbal (P. W.10) who had conducted the post-mortem examination on the dead body of the deceased and Dr. Muhammad Asif (P.W.11) who had examined Muhammad Iqbal, the injured prosecution witness, is in conformity and in line with ocular account furnished by Iftikhar Ahmad and Muhammad Iqbal at the trial. In the post-mortem report Exh. P. F., the injuries attributed to the appellant and his co-accused were found on the dead body of the deceased by the examining doctor and injury No.3 on the left side of chest specifically ascribed to appellant was declared fatal.
10. Further, after being arrested, the appellant led to the recovery of blood-stained Chhuri P.5 from his house in the presence of Shafaqat Ali (P.W.5). The report of the Chemical Examiner Exh.P.R. and that of the Serologist Exh.P.T. were returned in the positive. The recovery of weapon has been fully proved at the trial which is another supporting piece of evidence.
11. Insofar as the motive is concerned, since there is no background of previous enmity between the parties, therefore, in the given facts and circumstances of the case, it was not necessary for the prosecution to prove the motive which even otherwise relates to the state of mind of an accused and can be formed at the spur of the moment.
12. From the above made discussion, we conclude that the prosecution has succeeded in proving its case against the appellant beyond a shadow of doubt through credible and convincing ocular account fully corroborated by the medical evidence and supported by the evidence of recovery of weapon of offence from the appellant.
13. The only question which now remains to be answered is the quantum of sentence to which the appellant is liable for in the given facts and circumstances of the case. It has been noticed by us that with the exception of the appellant all others namely Mumtaz, Zulfiqar and Muhammad Latif were acquitted by the learned trial Court on the basis of a compromise with the legal heirs of the deceased and the injured Muhammad Iqbal (P.W.3). Further the occurrence apparently took place all of a sudden in which the appellant inflicted a solitary blow to the deceased without repeating the same although there was no impediment or obstacle in his way. Of the prosecution's own showing, the appellant did not come armed at the place of occurrence, which excludes the possibility of pre-planning. Thus, it can be safely concluded that the appellant did not have the intention to commit the murder of the deceased. Moreover, the motive behind the murder was neither proved at the trial nor was it directly attributed to the appellant. In view of the extenuating circumstances discussed above, we feel that it is not a fit case for awarding the extreme penalty of death.
14. In sequel to the above discussion, while dismissing the appeal of the Muhammad Yousaf appellant, we convert the sentence from death to imprisonment for life. The sentence to the extent of compensation to the legal heirs of the deceased shall remain intact, however, in default, instead of rigorous imprisonment the appellant shall serve simple imprisonment for six months. The benefit of section 382-B, Cr.P.C. is extended to the appellant. The sentence of Death is not confirmed and the Murder Reference is answered in the Negative.
N.H.Q./M-262/L Sentence reduced.