PLJ 2024 Cr.C. (Note) 188
[Lahore High Court, Multan Bench]
Present:
Syed Shahbaz Ali Rizvi and Ali Zia
Bajwa, JJ.
HABIB
ULLAH--Appellant
versus
STATE
etc.--Respondents
Crl. A.
No. 274 & M.R. No. 32 of 2019, heard on 18.4.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 324--Qatl-i-amd--Ocular account--Confidence-inspiring--Related
witness--Medical evidence--Spur of the moment--Motive--Mitigating
circumstance--Imprisonment for life--Ocular account fully described the minute
details of how the appellant attacked the deceased--Witnesses of the ocular
account are confidence-inspiring, convincing and straightway appeal to
reason--Both the eyewitnesses are related witnesses being the father and
maternal uncle of the deceased is concerned--Testimony of a closely related
witness cannot be discarded merely on the basis of such relationship--Duration
between the death and postmortem examination as given by the doctor also
coincides with the ocular account--Medical evidence is in line with the ocular
account--Quantum of the sentence--The occurrence took place at the spur of the
moment and what happened prior to it remained shrouded in mystery--In the
absence of premeditation to commit murder where the motive is not proved by the
prosecution, the same may be considered as the mitigating factor to reduce the
quantum of sentence--For the offence of Qatl-i-Amd besides the penalty of
death, life imprisonment is a legal sentence and it should be awarded wherever
facts and circumstances may warrant--Crl. Appeal filed by the appellant is
dismissed with modification in his death sentence to imprisonment for life
under section 302(b) PPC as Ta’zir. [Para 7,
8, 9 & 12] A, B, C, D, E, F & G
2022 SCMR 1577; 2021 SCMR 325; 2006 SCMR 1857; 2024 SCMR 128;
2007 SCMR 1417; 2010 SCMR 1205; 2020 SCMR 287;
2020 SCMR 1250 ref.
Sardar Usman Sharif Khosa, Advocate for Appellant.
Mr. Mohammad Ali Shohab, Deputy Prosecutor General for State.
Mr. Muhammad Ali Butt, Advocate for Complainant.
Date of hearing: 18.4.2024.
Judgment
Ali Zia Bajwa, J.--Through this single judgment, we
intend to decide Crl. Appeal No. 274/2019 titled ‘Habib Ullah vs. The State
& another’ filed by Habib Ullah appellant, against his conviction and
sentence as well as Murder Reference No. 32/2019 titled ‘The State vs. Habib
Ullah’ forwarded by the trial Court under Section 374, Cr.P.C. for
confirmation or otherwise of death sentence awarded to the convict, as these are
arising out of one and the same judgment dated 16.03.2019 (hereinafter ‘the
impugned judgment’, passed by Additional Sessions Judge, Taunsa Sharif (hereinafter
‘trial Court’).
2. Habib Ullah son of Ahmed Yar, caste Chandia, resident of
Mahinda, Tehsil Taunsa Sharif (hereinafter ‘the appellant’) was implicated in
case F.I.R. No. 133/2018, dated 04.07.2018, initially registered under Section
324 of the Pakistan Penal Code, 1860 (hereinafter ‘PPC’) with Police Station
Saddar Taunsa Sharif. After the death of Muhammad Tahir, offence under Section
302, PPC was added. He was tried by the trial Court under the afore-mentioned
offence. The trial Court seized with the matter, vide the impugned
judgment, convicted and sentenced the appellant as under:
Under Section 302(b),
PPC, sentenced to death as Ta’zir with direction to pay Rs. 3,00,000/- as
compensation to the legal heirs of the deceased in terms of Section 544-A,
Cr.P.C., and in case of default in payment thereof, to undergo simple
imprisonment for six months.
3. The prosecution story as narrated in the FIR (Exh.PE/1) has
been reproduced as under:--
مضمون
استغاثہ ذیل
ہے بیان کیا
کہ میں ہیرو
غربی کا
رہائشی و
سکونتی ہوں
اور ایف سی سے
ریٹائرڈ
ملازم ہوں اب
محنت مزدوری
کرتا ہوں حسب
دستور سابق
محمد طاہر
پسرم بعمر 18/17
سال بسواری
موٹر سائیکل
بچوں کو
گیریژن سکو ل
تونسہ شریف
چھوڑنے کے بعد
واپس گھر آرہا
تھا جب قریب 6:45
بجے صبح ڈسٹری
نمبر 45 موضع
مہندہ پر پہنچا
ہوں تو مسمی
حبیب اللہ ولد
احمد یار قوم چانڈ
یہ سکنہ موضع
مہندہ مسلح
کلہاڑی کھڑا
ہوا تھا میں
معہ محمد شفیق
ولد بشیر احمد
قوم چانڈ یہ
سکنہ مہندہ ،
خالد حسین ولد
غلام حسین قوم
موہا نہ سکنہ
ہیرو غربی بھی
ڈسٹری نمبر 45
پر جارہے تھے
تو دیکھا کہ
مسمی حبیب اللہ
نے محمد طاہر
پسرم کو روکا
اور ہمارے
دیکھتے ہی
دیکھتے حبیب
اللہ نے محمد
طاہر پسرم کو جان
سے مار دینے
کی نیت سے
سیدھی کلہاڑی
کا وار کیا جو
پسرم کے سر پر
بائیں طرف
رخسار، ہونٹ اور
ٹھوڑی پر لگا
پسرم زمین
پرگر پڑا وقوعہ
ہذا کو میں نے
اور گواہان نے
بچشم خود دیکھا
ملزم حبیب
اللہ ہمیں آتا
دیکھ کر موقع
سے بھاگ گیا ہم نے جا
کر محمد طاہر
پسرم کو سنبھالا
جوخون میں لت
پت پڑا ہوا
تھا اور
کلہاڑی کا پھل
آہنی پسرم کے
سر، رخسار
ٹھوڑی میں
پھنسا ہوا تھا
ہم نے فوری
طور پر ریسکیو
1122 کو اطلاع دی
جو موقع پر
آگئی اورہم
محمدطاہر پسرم
کو لے کر THQ ہسپتال
تونسہ شریف
پہنچے۔ وجہ
عناد یہ ہے کہ
ملزم حبیب
اللہ کو رنج تھا
کہ محمد طاہر پسرم
وغیرہ ڈسٹری
پر والی بال
کا نیٹ کیوں
لگاتے ہیں قبل
از یں بھی
حبیب اللہ
ملزم نے پسرم
کو جان سے
ماردینے کی
دھمکیاں دیں
امروز اسی رنج
کی بناء پر
حبیب اللہ نے
محمد طاہر
پسرم کو جان
سے مار دینے
کی نیت سے
سیدھی کلہاڑی
کا وار کر کے
شدید مضروب
کیا ہے بیان
دیتا ہوں میری
کاروائی کی جا
و ے العبد
نشان
انگوٹھا۔ محمد
بخش مستغیث و
تصدیقی دستخط
اردو
ندیم حسین SI
4. After completion of the investigation, a report under
Section 173, Cr.P.C. was prepared and submitted before the trial Court. The
prosecution to establish its case produced twelve (12) prosecution witnesses
while the trial Court also recorded the statement of one Court witness. After
the prosecution evidence, the statement of the appellant as envisaged under
Section 342, Cr.P.C. was recorded wherein he pleaded his innocence and refuted
all the allegations leveled against him in the prosecution evidence. Upon completion
of the trial, the trial Court found the prosecution case against the appellant
having been proved to the hilt, thus, convicted and sentenced him as mentioned
and detailed above.
5. We have heard the arguments advanced by learned counsel for
both sides and perused the record available on file.
6. In this case, the prosecution version mainly hinges upon the
ocular account, medical evidence and the motive.
7. In this unfortunate occurrence, which took place in broad
daylight, according to the prosecution theory of the case, young son of the
complainant namely Muhammad Tahir was assaulted by the appellant, who was
shifted to THQ Hospital Taunsa Sharif through the intervention of Rescue-1122
from where he was referred to Nishtar Hospital, Multan. However, he succumbed
to the injury on his way to the said hospital. Ocular account in this case has
been advanced through the statements of Muhammad Bakhsh (PW-1) and Muhammad
Shafique (PW-2). The complainant is an unfortunate father of the deceased while
PW-2 Muhammad Shafique is the aternal uncle (ماموں)
of Muhammad Tahir. While making their statements during trial both the
prosecution witnesses of the ocular account fully described the minute details
of how the appellant attacked the deceased, they also remained affirmed as to
the date, time, place, and locale of injury on the person of the deceased and
despite lengthy cross-examination nothing adverse to the prosecution version
could be brought on the record. The complainant being father while PW-2 being
maternal uncle of the deceased had no reason to falsely substitute the
appellant in place of the real culprit(s). Even otherwise substitution is a
rare phenomenon, and it defies common sense that the complainant and
eyewitnesses, who are closely related to the deceased, would absolve the actual
accused, and implicate an innocent person. Both parties were previously known
to each other, which further rules out the possibility of any
misidentification. Having scrutinized the statements of the prosecution
witnesses of the ocular account, we have arrived at an irresistible conclusion
that these are confidence-inspiring, convincing and straightway appeal to
reason.
8. As far as the contention of learned counsel for the
appellant that both the eyewitnesses are related witnesses being the father and
maternal uncle of the deceased is concerned, the catena of judgments has
settled the principle of law that testimony of a closely related witness cannot
be discarded merely on the basis of such relationship with the deceased. In ABDUL
KHALIQ,[1]
the Supreme Court of Pakistan expounded this principle in the following terms:
“.... mere
relationship of a witness with the deceased does not undermine the value of his
testimony, if otherwise found with a ring of truth.”
A similar view was affirmed in Ijaz
Ahmed vs. The State and others – 2022 SCMR 1577.
9. The record available on the file reflects that Dr. Muhammad
Abdul Basit Qaisrani (PW-10) first medically examined the deceased in injured
condition and subsequently conducted his postmortem examination. According to
the prosecution version, the occurrence took place at 6:45 a.m. on 04.07.2018
wherein Muhammad Tahir deceased received injury and succumbed to the same at
12:55 p.m on way to Nishtar Hospital, Multan. The dead body reached the
mortuary at 4:30 p.m., the police papers were received at 5:30 p.m. while the
autopsy was conducted at 5:40 p.m. While making his statement during the course
of the trial, the doctor stated that he medically examined the injured at 7:15
a.m. and observed that the duration between injury and examination was half to
one hour. According to the statement of the doctor, a hatchet was tangled in
the left side of the head of the deceased, which was removed by him. The
duration between the death and postmortem examination as given by the doctor
also coincides with the ocular account, Through the plethora of judgments of
the Constitutional Courts, it is settled law by now that when the medical
evidence is in line with the ocular account, same lends strong corroboration to
the prosecution case and is sufficient to convict the accused. Reliance is
placed upon the ratio decidendi of
the Supreme Court of Pakistan in MUHAMMAD EHSAN,[2]
Where this principle was expounded as infra:
“6. It be noted
that this Court has time and again held that the rule of corroboration is rule
of abundant caution and not a mandatory rule to be applied invariably in each
case rather this is settled principle that if the Court is satisfied about the
truthfulness of direct evidence, the requirement of corroborative evidence
would not be of much significance in that, as it may as in the present case
eye-witness account which is unimpeachable and confidence-inspiring character
and is corroborated by medical evidence.”
10. At the time of spot inspection, the Investigating Officer
secured blood-stained soil from the place where the deceased received injury
vide recovery memo Exh.PH, which was dispatched to the Punjab Forensic
Science Agency. As per the forensic report (Exh.PQ) it was found stained with
human blood.
11. In the sequel to what has been discussed above and
re-appraisal of the prosecution evidence lead us to the inescapable conclusion
that the prosecution proved its charge against the appellant qua murdering
the deceased beyond the reasonable shadow of doubt.
12. As far as the quantum of the sentence is concerned, while
going through the record we have observed that in view of the evidence/material
available on the record, the same requires reconsideration.
According to the contents of the crime report the appellant has
been assigned a single blow on the head of the deceased. As far as motive is
concerned, in the FIR it was alleged that the appellant had a grudge that the
deceased along with others had installed a volleyball net at Distery Parwali
and previously he extended threats of dire consequences to the deceased.
However, no independent evidence in that regard was produced by the
prosecution. Moreover, it is not the prosecution’s case that on the fateful day
before the occurrence, any altercation took place. The occurrence took place at
the spur of the moment and what happened prior to it remained shrouded in
mystery. In a recently reported judgment handed down in Muhammad Yasin and
another vs. The State and others 2024 SCMR 128, while discussing a plethora
of judgments, the Supreme Court of Pakistan ruled that in the absence of
premeditation to commit murder where the motive is not proved by the
prosecution, the same may be considered as the mitigating factor to reduce the
quantum of sentence in cases involving the capital punishment. In the
afore-stated facts and circumstances, it is a fit case of mitigation keeping in
view the number of judgments of the Supreme Court of Pakistan on the subject.[3]
Moreover, in the case of The State through Advocate-General N.W.F.P.
Peshawar vs. Hamayun and others – 2007 SCMR 1417 the Supreme Court of
Pakistan ruled that for the offence of Qatl-i-amd
besides the penalty of death, life imprisonment is a legal sentence and it
should be awarded wherever facts and circumstances may warrant. The relevant
portion of the judgment has been reproduced as under:
“No doubt normal
penalty for an act of commission of Qatl-i-Amd provided under the law is death
but since life imprisonment also being a legal sentence for such offence must
be kept in mind wherever the facts and circumstances warrant mitigation of
sentence because no hard and fast rule can be applied in each and every case.”
A similar view was affirmed in Sharafat
Ali Khan vs. THE State – 2010 SCMR 1205.
13. For the foregoing reasons, while taking into consideration
the facts and circumstances narrated in the preceding paragraph falling within
the ambit of mitigation, Crl. Appeal No. 274/2019 filed by the
appellant is dismissed with
modification in his death sentence to imprisonment for life
under Section 302(b), PPC as Ta’zir,
The burden of compensation in terms of Section 544-A, Cr.P.C. as imposed by the
trial Court and consequences for its non-payment shall remain intact. The
benefit of Section 382-B, Cr.P.C. is also extended in favour of the appellant.
14. Murder Reference No. 32/2019 forwarded by the
trial Court in terms of Section 374, Cr.P.C. for confirmation of the death
sentence awarded to the convict fails, which is answered in the negative.
The death sentence is not confirmed.
(K.Q.B.) Apeal dismissed