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Petitioner: SHEHZAD AHMAD alias KAKA VS Respondent: StateHonorable Justice Shehram Sarwar Ch.Prince Rehan Iftikhar Sheikh
2022 P Cr. L J Note 114 [Lahore (Multan Bench)] Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ SHEHZAD AHMAD alias KAKA---Appellant Versus The STATE and another---Respondents Criminal Appeal No. 942 and Murder Reference No. 46 of 2017, heard on 20th September, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence--- Sentence, reduction in---Delay of forty five minutes in lodging the FIR---Scope---Accused was charged for committing murder of husband and daughter of the complainant and also causing injuries to the complainant---Motive behind the occurrence was that accused was an addict and the complainant party used to forbid him and due to that reason the accused committed the offence---Record showed that the occurrence took place at about 05.30 p.m.---Distance between the police station and the place of occurrence was two furlongs---Matter was reported to the police through the statement of complainant on the same day at 06.15 p.m. just forty five minutes after the occurrence---Post-mortem examinations of the dead bodies of deceased persons were conducted on the same day at 09.45 and 11.30 p.m. respectively---Matter was reported to the police with due promptitude which ruled out the chances of concoction and fabrication on the part of complainant---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, the recovery and motive were not proved---Death sentence was converted into imprisonment for life in such extenuating circumstances---Appeal against conviction was dismissed with said modification in sentence. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Presence of eye-witnesses on the spot at the time of incident was quite natural and probable---Scope---Accused was charged for committing murder of husband and daughter of the complainant and also causing injuries to the complainant--- Ocular account in the case consisted of complainant/injured, who was closely related to deceased persons being wife and mother respectively and another witness---Both the said witnesses were resident of the same area where the incident took place, therefore, their presence on the spot at the time of incident was quite natural and probable---Place of occurrence hadnot been disputed by the defence---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---Discrepancies in the statements of the witnesses pointed out by defence were minor and general in nature, occurred in every case when witnesses were cross-examined after a long time of the occurrence as in the present case, were not fatal to the prosecution---Witnesses of ocular account had no deep rooted enmity with the accused to falsely implicate him in the case by letting off the real culprits---First Information Report as well as before the Trial Court it was the case of prosecution that the accused was sole perpetrator for causing injuries on the person of the deceased as well as complainant/injured---Evidence of said eye-witnesses was consistent, truthful and confidence inspiring---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, the recovery and motive were not proved---In such extenuating circumstances, death sentence was converted into imprisonment for life---Appeal against conviction was dismissed with said modification in sentence. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence--- Sentence, reduction in---Ocular account supported by medical evidence---Scope---Accused was charged for committing murder of husband and daughter of the complainant and also causing injuries to the complainant---Case of prosecution was that the accused inflicted successive churri blows on the complainant, her husband and daughter, which hit on the left flank of the complainant, right side of chest and left knee of her daughter and below neck, left side of chest and front side of her husband---Medical Officers who conducted post-mortem examination on the dead body of husband of complainant and deceased daughter of complainant, observed the said injuries on the person of the deceased---Ocular account was fully supported by medical evidence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, the recovery and motive were not proved---Death sentence was converted into imprisonment for life, in circumstances---Appeal against conviction was dismissed with said modification in sentence. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Motive was not proved---Scope---Accused was charged for committing murder of husband and daughter of the complainant and also causing injuries to the complainant---Motive behind the occurrence as alleged in the FIR was that the accused was an addict and the complainant party used to forbid him and due to that reason the accused committed the incident---No criminal record pertaining to the accused about his addiction had been brought on record during trial---No cogent/convincing evidence qua motive part of incident was produced by the prosecution during the trial---No independent witness qua motive was joined by police in investigation---Prosecution had not been able to substantiate the alleged motive behind the occurrence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, the recovery and motive were not proved---Death sentence was converted into imprisonment for life in such extenuating circumstances---Appeal against conviction was dismissed with said modification in sentence. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Recovery of churri at the instance of the accused---Scope---Accused was charged for committing murder of husband and daughter of the complainant and also causing injuries to the complainant---Record showed that weapon of offence, churri was recovered at the instance of the accused---Said recovery was immaterial because the accused allegedly got recovered the same from a graveyard underneath the neem tree which was an open place accessible to everyone---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, the recovery and motive were not proved---Death sentence was converted into imprisonment for life in such extenuating circumstances---Appeal against conviction was dismissed with said modification in sentence. Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Zafar Iqbal and others v. The State 2014 SCMR 1227 rel. Prince Rehan Iftikhar Sheikh for Appellant. Adnan Latif, Deputy Prosecutor General for the State. Ch. Aftab Shabbir Arain for the Complainant. Date of hearing: 20th September, 2021. JUDGMENT SHEHRAM SARWAR CH., J.---Shehzad Ahmad alias Kaka (appellant) was tried by learned Sessions Judge, Sahiwal in case FIR No.781 dated 29.12.2015, offence under sections 302 and 324, P.P.C., registered at Police Station Ghalla Mandi District Sahiwal for committing murder of Muhammad Amin and Mst. Shanza, husband and daughter of the complainant respectively and launching murderous assault upon the complainant. Vide judgment dated 16.03.2017 passed by learned trial court, the appellant has been convicted under section 302(b), P.P.C. and sentenced to death on two counts with a further direction to pay Rs.15,00,000/- (rupees fifteen lakh only) as compensation under section 544-A, Code of Criminal Procedure, to the legal heirs of each deceased and in default whereof to further undergo six months simple imprisonment. He was also convicted under section 324, P.P.C. and sentenced to rigorous imprisonment for ten years with fine of Rs.100,000/- (rupees one lakh only) and in default thereof to further undergo one month simple imprisonment. He was further convicted under section 337-F(ii), P.P.C. for causing hurt to Mst. Nusrat Bibi, complainant and sentenced to rigorous imprisonment for three years with Daman of Rs.100,000/- (rupees one lakh only) and in case of non-payment of the same he shall be kept in jail as provided under section 337-Y, P.P.C. He was further burdened to pay compensation of Rs.100,000/- (rupees one lakh only) under section 544-A, Cr.P.C. to Nusrat Bibi, complainant and in default thereof to further undergo one month's simple imprisonment. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.46 of 2017 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.PA/1) registered on the statement (Exh.PA) of Mst. Nusrat Bibi, complainant (PW.1) is that on 29.12.2015 at about 05:30 p.m. she (complainant) along with her husband Muhammad Amin and children was present in her house and was talking to them. Suddenly, Shehzad Ahmad alias Kaka (appellant) brother-in-law (dewar) of the complainant, armed with churri came there and stated that he would teach a lesson to them for previous altercation. Within their view, the appellant with intention to kill inflicted successive churri blows on the complainant, Muhammad Amin and Mst. Shanza, which hit on the left flank of the complainant, right side of chest and left knee of Mst. Shanza and below neck, left side of chest and front side of Muhammad Amin. On hue and cry of the complainant, Abdul Majeed, Muhammad Sharif, Muhammad Rafique (PW.2) and Muhammad Saleem along with respectable of the locality attracted at the spot, witnessed the occurrence and attempted to catch hold the appellant, whereupon the appellant extended threats and decamped from the place of occurrence while waving churri. Motive behind the occurrence as alleged in the FIR was that Shehzad Ahmad alias Kaka (appellant) was an addict and the complainant party used to forbid him and due to that reason the appellant committed this incident. 3. After completion of investigation, report under section 173, Code of Criminal Procedure was submitted in this case. The appellant was summoned by the learned Sessions Judge, Sahiwal to face the trial. Copies of relevant documents were provided to him, as required under section 265-C, Code of Criminal Procedure and formal charge under sections 302 and 324, P.P.C. was framed against him on 23.11.2016, to which he pleaded not guilty and claimed trial. After the closure of prosecution evidence; statement of the appellant under section 342, Code of Criminal Procedure was recorded on 04.03.2017, wherein he refuted all the allegations of prosecution and professed his innocence. 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. After conclusion of the trial, the learned trial court convicted and sentenced the appellant as detailed above. Hence, this appeal and murder reference. 4. We have heard learned counsel for the parties as well as learned Deputy Prosecutor General for the State and gone through the record with their able assistance. 5. This unfortunate incident wherein Muhammad Amin and Mst. Shanza, husband and daughter of the complainant respectively were done to death and Mst. Nusrat Bibi (PW.1) sustained injuries, as per prosecution, took place on 29.12.2015 at about 05:30 p.m. in the area of Shamsi Mohallah Ghalla Mandi situated within the territorial jurisdiction of Police Station Ghalla Mandi District Sahiwal. The distance between the police station and the place of occurrence is two furlong. The matter was reported to the police through statement (Exh.PA) of Mst. Nusrat Bibi, complainant (PW.1) on the same day at 06:15 p.m. i.e. just forty five minutes after the occurrence. Moreover, the postmortem examinations of the dead-bodies of deceased (Muhammad Amin and Mst. Shama) were conducted on the same day at 09:45 p.m. and 11:30 p.m. respectively. Therefore, we hold that matter was reported to the police with due promptitude which rules out the chances of concoction and fabrication on the part of complainant. 6. The ocular account in this case consists of Mst. Nusrat Bibi, complainant/injured (PW.1), who was closely related to Muhammad Amin and Mst. Shanza (deceased) being wife and mother respectively and Muhammad Rafique (PW.2). Both these PWs were resident of the same area where the incident took place, therefore, their presence on the spot at the time of incident is quite natural and probable. The place of occurrence has not been disputed by the defence. The 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. The discrepancies in the statements of the PWs pointed out by learned counsel for the appellant, are minor and general in nature, occur in every case when witnesses are cross-examined after a long time of the occurrence as in present case, are not fatal to the prosecution. The witnesses of ocular account have no deep rooted enmity with the appellant to falsely implicate him in this case by letting off the real culprits. In the FIR as well as before the learned trial Court it was the case of prosecution that the appellant was sole perpetrator for causing injuries on the person of the deceased as well as Mst. Nusrat Bibi, complainant/injured (PW.1). Therefore, we hold that the evidence of above eye-witnesses was consistent, truthful and confidence inspiring. 7. In the FIR as well as before the learned trial Court it was the case of prosecution that the appellant inflicted successive churri blows on the complainant, Muhammad Amin and Mst. Shanza, which hit on the left flank of the complainant, right side of chest and left knee of Mst. Shanza and below neck, left side of chest and front side of Muhammad Amin. Dr. Tahira Wahab (PW.7) and Dr. Imran ul Haq (PW.8) who conducted postmortem examination on the dead body of Muhammad Amin and Mst. Shanza (deceased), observed the above said injuries on the person of the deceased. Therefore, we hold that ocular account is fully supported by medical evidence. 8. Motive behind the occurrence as alleged in the FIR was that the appellant was an addict and the complainant party used to forbid him and due to that reason the appellant committed this incident. No criminal record pertaining to the appellant about his addiction has been brought on record during trial. Following portion of the cross-examination of Muhammad Aslam, SI/I.O. (PW.9) qua motive is relevant, which is reproduced as under:- "...I did not sought out about the fact that the accused was an addict or not. The complainant party did not produce before me any FIR pertaining to the accused about his addiction nor any other independent witness was produced before me. The accused and the deceased had no previous animosity of murder...During my investigation I could not find any reason of the commission of occurrence." No cogent/convincing evidence qua motive part of incident was produced by the prosecution during the trial. Moreover, no independent witness qua motive was joined by police in investigation. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence. 9. So far as alleged recovery of churri (P.8) at the instance of the appellant is concerned, the same is immaterial because the appellant allegedly got recovered the same from Peer Bukhari graveyard underneath the neem tree which is an open place accessible to everyone. 10. Now we will discuss the version of the appellant which was taken by him in his statement recorded under section 342, 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 produce any witness in his defence. Therefore, we are of the view that the appellant has not been able to substantiate his version, which is hereby discarded out-rightly. 11. From the above circumstances, we are of the considered view that even if the evidence of motive and recovery of churri (P.8) are excluded from consideration, there is sufficient incriminating evidence on the record against him in the form of straightforward and confidence inspiring ocular furnished by Mst. Nusrat Bibi, complainant/injured (PW.1) and Muhammad Rafique (PW.2) fully supported by the medical evidence furnished by Dr. Tahira Wahab (PW.7) aid Dr. Imran ul Haq (PW.8) to maintain his conviction under Section 302(b) which is accordingly maintained. However, it is not a case of capital punishment because of the reasons:- (i) motive as set up by the prosecution has not been believed by us and (ii) recovery of churri (P.8) at the instance of the appellant is inconsequential. 12. The above said facts lead us to the conclusion that there are sufficient extenuating circumstances, 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. Reliance is placed on case law titled as "Mir Muhammad alias Miro v. The State" (2009 SCMR 1188) and "Zafar Iqbal and others v. The State" (2014 SCMR 1227). Therefore, while maintaining the conviction under section 302(b) P.P.C., we alter the sentence of the appellant from death to imprisonment for life. The convictions and sentences under sections 324 and 337-F(ii), P.P.C. and the amount of compensation, fine as well as Daman and the punishments in default whereof as ordered by the learned trial court are also maintained. All the sentences shall run concurrently. Benefit of section 382-B, Code of Criminal Procedure is extended to the appellant. In view of the above, the appeal in hand is dismissed with the above modification in the quantum of sentence. 13. Murder Reference No. 46 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Shehzad Ahmad alias Kaka (convict) on two counts is NOT CONFIRMED. JK/S-75/L Sentence altered.