State vs Tasawar Hayat S/O Khizar Hayat

Crl.App.No.423-J of 2010 Crl.Rev.No.1307 of 2010

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Murder Reference No.605 of 2010 Criminal Appeal No.423-J of 2010.

(Tasawar Hayat Versus The State)

Criminal Revision No.1307 of 2010. (Mureed Ahmad Versus The State etc)

JUDGMENT

Date of Hearing. 26.05.2014

APPELLANT BY Mrs. Nighat Saeed Mughal, Advocate. COMPLAINANT Mr. Kashif Ali Chaudhry, Advocate.

BY

STATE BY Mr. Aqil ur Rehman, D.D.P.P.

Syed Shahbaz Ali Rizvi, J:- The appellant namely Tasawar Hayat was recommended for prosecution along with co accused namely Haji Shahbaz (since acquitted) in a case FIR No.220 dated 14.11.2009 under sections 302/449/109 PPC and was convicted by learned Sessions Judge, Mianwali u/s 302 (b) PPC vide impugned judgment dated 20.10.2010 and sentenced infra: - Death u/s 302 (b) PPC for the murder of Ghulam Muhammad (deceased) with compensation to the tune of Rs.200,000/- u/s 544-A, Cr.P.C to be paid to the legal heirs of the deceased and in default thereof, to further undergo six months S.I.

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The appellant was ordered to be hanged by his neck till his death.

2.The complainant filed revision petition for enhancement of sentence to the extent of compensation awarded to the appellant

3.This single judgment will dispose of the above mentioned murder reference No.605 of 2010 along with criminal appeal No.423-J of 2010 filed by the appellant as well as criminal revision No.1307 of 2010 filed by the complainant Mureed Ahmad (PW.8).

4.The facts in brief, as disclosed by Mureed Ahmad (PW.8) complainant in the FIR (Ex.PE) are that on the fateful day i.e.

14.11.2009 at about 12:45 p.m. the complainant along with Mushtaq Ahmad (PW.7) and Sher Muhammad (given up PW) was sitting on a cot in the courtyard of the house; suddenly Tasawar Hayat (appellant) came through the door while armed with pistol 30 bore and raised Lalkara that he had come to take revenge of his honour and made a fire shot at Ghulam Muhammad (deceased) father of the complainant, with his pistol hitting right side of his chest who succumbed to the injury whereas the appellant fled away from the scene of occurrence while making aerial firing.

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The motive for the occurrence was that the appellant suspected the deceased for having illicit relations with his mother.

5.Muhammad Saleem SI (PW.9) chalked out FIR Ex.PE of this case on the statement of complainant Mureed Ahmad and thereafter visited the place of occurrence; examined the dead body of the deceased Ghulam Muhammad; prepared injury statement Ex.PG followed by inquest report Ex.PH; took into possession blood stained earth vide memo Ex.PF; recorded statements of PWs u/s 161 Cr.P.C;

prepared un-scaled site plan of the place of occurrence Ex.PJ; took into possession the last worn clothes of the deceased P.3 and P.4 vide memo Ex.PC; on 25.11.2009 arrested Tasawar Hayat (appellant), recovered pistol 30 bore P.1 along with three live bullets P.2/1-3 and took the same into possession vide memo Ex.PB and on completion of investigation, the appellant was sent to court for facing trial.

6.Learned trial court after observing all the pre-trial codal formalities, indicted the appellant to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case, produced as many as nine witnesses. Dr. Maqbool Mubarik Malik, Medical Officer, DHQ Hospital, Mianwali (PW-5) conducted post mortem examination on the dead body of Ghulam Muhammad (deceased) on 14.11.2009 at 5:15 p.m. and observed following injuries on his body:-

Crl.App.No.423-J of 2010 Crl.Rev.No.1307 of 2010

INJURIES

i)A firearm entry wound 1 x 1 cm on the front of right chest, 2 cm below right nipple.

ii)A firearm exit wound of injury No.1, 1 x 1 cm on the left lateral side of body, 24 cm inferior to left axilla and 13 cm above left iliac crest.

REMARKS

The medical officer was of the opinion that death was due to haemorrhage and cardio-genic shock as a result of injuries No.1 and 2 which had badly damaged the heart. Both the injuries were grievous and dangerous to life and were sufficient to cause death in ordinary course of nature. Both the injuries were ante-mortem and were caused by firearm weapon. The probable time that elapsed between injuries and death was immediate, whereas, the time between death and post- mortem was 04 to 06 hours. He also produced the exact carbon copy of post mortem report as Ex.PD along with pictorial diagrams Ex.PD/1 and PD/2.

7.The prosecution gave up PWs namely Nemat Ali 991/C, Muhammad Yousaf, Muhammad Ishaq and Sher Muhammad being unnecessary and by tendering into evidence reports of Chemical Examiner Ex.PL and that of Serologist Ex.PM, closed the prosecution evidence.

8.Then statement of the appellant was recorded u/s 342 Cr.P.C.

wherein he negated the allegations and professed his innocence. In

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reply to the question as to why the case against him and why the PWs deposed against him, the appellant maintained as under: - “The case against me is false and fabricated one. I have been roped in this case on account of suspicion. I have no sibling. My father had died about 18 years back and my mother is alive. I am innocent.”

Though the appellant opted to lead evidence in his defence yet did not produce any witness nor did he appear as his own witness to make statement on oath in disproof of allegations leveled against him, u/s 340(2) Cr.P.C.

9.After conclusion of trial the appellant was convicted and sentenced as mentioned above by the learned trial Court; hence the instant appeal.

10.Learned counsel for the appellant, at the very outset, expresses that she does not challenge the judgment passed by the learned trial court to the extent of conviction of the appellant, however, she prays for the modification in the judgment to the extent of quantum of sentence for the reason that even according to the prosecution case, the appellant did not repeat the fire despite having the opportunity to do so and single fire became the cause of death of the deceased and states that this aspect of the case is sufficient as mitigating circumstance for not awarding the death penalty to the appellant.

11.Conversely, learned D.D.P.P for the State assisted by learned counsel for the complainant vehemently opposed the contentions raised

Crl.App.No.423-J of 2010 Crl.Rev.No.1307 of 2010

by learned counsel for the appellant and maintained that keeping in view the seat of injury i.e. chest, repetition or non repetition of fire becomes immaterial and that awarding normal penalty of death in such like case can only meet the ends of justice and even otherwise the prosecution has proved its case in all respects, therefore, no question for lesser punishment arises according to the facts and circumstances of the case.

12.Having heard the learned counsel for the parties and gone through the record, especially the prosecution evidence, we have observed that it is a daylight occurrence, promptly reported to the police against the appellant with a specific role of causing sole firearm fatal injury to the deceased when he was sitting on a cot in his courtyard near the prosecution witnesses. There is no question of misidentification or substitution in this case. The prosecution successfully proved the occurrence through the evidence of PW.7 Mushtaq Ahmad and PW.8 Mureed Ahmad which is supported by the medical evidence i.e. post mortem report Ex.PD. Both the witnesses remained consistent and firm during the course of cross examination and the defence could not derive anything beneficial for the accused from their deposition. On the other hand, during our meticulous observation and reappraisal of evidence of PW.7 and PW.8 who have appeared to prove both ocular account of the actual occurrence as well

Crl.App.No.423-J of 2010 Crl.Rev.No.1307 of 2010

as the motive, we have come to the conclusion that not only the defence remained fail to assist the learned trial court ably and completely but the learned trial court also could not discharge its responsibility properly by application of judicious mind while appreciating the prosecution evidence regarding the motive.

The motive, as alleged by Mushtaq Ahmad PW.7 and Mureed Ahmad PW.8 is that the appellant was having suspicion of illicit relations between the deceased and his mother. The learned trial court remained oblivious of the fact that none of the witnesses has disclosed the source of his information regarding the suspicion of the appellant as alleged nor any of them has claimed to be a direct witness to any incident that created the motive to commit murder of the deceased by the appellant. The prosecution is mysteriously silent and unable to narrate about taking place of any incident or event which could lead us to believe that the appellant was having the suspicion as alleged by the prosecution. No independent person has been produced by the prosecution to prove motive. It is relevant to note that the appellant during his statement recorded u/s 342 Cr.P.C has denied the motive while giving answer to question No.5. Even otherwise, keeping in view all the surrounding circumstances of the case, the motive itself is not plausible. The relevant columns of inquest report Ex.PH and post mortem report Ex.PD, reflect the age of the deceased as 70-71 years.

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Similarly, the medical officer while describing the external appearance of the dead body, has recorded that “.....the dead body of an old man....”, which shows that even from the appearance, the deceased looked like an old man which makes the alleged motive improbable and unbelievable. In this view of the matter, we are of the firm view that not only the motive, as set up by the prosecution, is not plausible but the prosecution even could not prove the same through evidence of PW.7 and PW.8 beyond reasonable doubt, as discussed supra and from the evidence real cause of the occurrence did not surface on the record.

13.It is now well settled that principle of “falsus in uno falsus in omni bus” does not apply to criminal trials and it is the duty of the court to disengage the truth from falsehood, to sift the grain from the chaff instead of taking an easy course of rejecting or accepting the evidence in its entirety. Feeling our responsibility to sift the grain from the chaff, we believe in evidence of PW.7 and PW.8 to the extent of ocular account, which is confidence inspiring having no iota of doubt and we can safely rely on the same as discussed above, but at the same time we are firm in our view to hold that the motive part of the occurrence has not been proved beyond reasonable doubt. It is, by now, settled principle that once prosecution has alleged a motive, then it is the duty of the prosecution to prove the same and when the prosecution failed to prove the same, it can be considered a mitigating

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circumstance in favour of an accused. Reliance, in this regard, can be placed upon the judgment of Hon'ble Supreme Court of Pakistan passed in case titled “Hasil Khan v. The State” reported as 2012 SCMR 1936 wherein the apex Court has held that where motive alleged by the prosecution had not been successfully proved, it may be considered as mitigating circumstance qua a sentence.

14.As far as the contention of learned counsel for the appellant regarding the single firearm injury caused and non repetition of fire by the appellant, is concerned, we have keenly observed the relevant part of the prosecution evidence and note that the appellant who was a common man being an electrician, made a single fire from the distance of 15 feet, as given in the marginal notes of site plan Ex.PA & PA/1, which cannot be termed as a short range, at an old man who was sitting on a cot. When a person who is being fired at in a sitting position, especially on a cot, the option for the assailant to select particular part of his body, becomes little as compared to the person who is in a standing position as in sitting position organs and parts of human body come closer to each other. Keeping in view the scene of occurrence as narrated by the eye witnesses as well as the site plan, possibility cannot be ruled out that the appellant had fired upon the deceased without selecting a specific part of the body and it also finds strength from the fact that without intervention of the PWs, present at the scene of

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occurrence, he fled away by not opting to make second fire upon the deceased, despite having the ample opportunity. In such a situation, the factum of non repetition of fire by the accused has been considered as an extenuating circumstance by the Hon’ble Courts. Reference is made to case titled “Qurban Ali v. Sheroo Machi and another” reported as 1991 SCMR 2339”, case titled “Muhammad Arshad and 2 others v. State” reported as PLJ 1996 SC 746”, case titled “Akbar Ali and others v. The State and another” reported as PLJ 2014 Criminal Cases (Lahore) 13 & case titled “Usman alias Kalu and another v. The State and another” reported as 2011 P.Cr.L.J 815.

15.In this view of the matter, even if the evidence of motive is taken out of consideration, yet there is sufficient incriminating material available, in the shape of confidence inspiring statements of Mushtaq Ahmad PW.7, Mureed Ahmad PW.8, the eye witnesses and PW.5 Dr.

Maqbool Mubarak Malik, proving the post mortem report, to maintain conviction of the appellant on the murder charge of deceased Ghulam Muhammad and we are of the considered view that the prosecution has successfully proved its case against the appellant beyond any reasonable doubt through confidence inspiring ocular account, supported by medical evidence. However, at the same time, we have found the following mitigating circumstances in favour of the appellant, which persuade us to cut back the quantum of sentence: -

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i. Although the prosecution set up a specific motive in this case but the same could not be proved;

ii. Non repetition of fire by the appellant upon the deceased despite having the opportunity.

16.By now it is settled principle of law that while deciding question of sentence, the accused is entitled to the benefit of any available mitigating circumstance. The Hon’ble Supreme Court in the case titled Mir Muhammad alias Miro v. The State (2009 SCMR 1188) has been pleased to observe as under: -

“It will not be out of place to emphasize that in Criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence.”

The August Court, in another case titled “Muhammad Riaz and another v. The State and another” reported as 2007 SCMR 1413 while considering the penalty for an act of commission of Qatl-i-Amd, has observed that:

“No doubt normal penalty for an act of commission of Qatl-i-Amd provided under law is death but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the fact and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case”. While in another judgment titled “Iftikhar Ahmad Khan v. Asghar Khan and another” reported as 2009 SCMR 502, it has been noted that: - “In other words, the law has conferred discretion upon the Court to withhold the penalty of death and to award the

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punishment for imprisonment of life if an outlook of case requires that course.....”

17.For what has been discussed above, while maintaining the conviction of Tasawar Hayat appellant under section 302(b) PPC for the murder of Ghulam Muhammad deceased, his sentence of death is converted into imprisonment for life as Tazir u/s 302(b) PPC. The amount of compensation of Rs.200,000/- under section 544-A, Cr.P.C as ordered by the learned trial court shall remain intact with the addition that in default to the payment of compensation, the appellant shall further undergo imprisonment for six months SI. Benefit of section 382-B, Cr.P.C shall be extended to the appellant. This appeal stands dismissed with the above modification in the quantum of sentence of the appellant and Crl. Rev. No.1307 of 2010 also stands dismissed.

The Murder Reference No.605 of 2010 is answered in the NEGATIVE and the death sentence awarded to him is not confirmed.

(Abdul Sami Khan) (Syed Shahbaz Ali Rizvi) Judge Judge

Rafaqat Ali