State vs Muhammad Naseer S/O Muhammad Munshi

HCJD/C-21

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Murder Reference No. 487 of 2010 Criminal Appeal No. 275-J of 2010 (Muhammad Naseer Versus The State)

JUDGMENT

Date of Hearing: 19.06. 2014 .

Appellant by: Ms. Nighat Saeed Mughal, Advocate . Complainant by: Nemo. .

State by: Ch. Muhammad Mustafa, Deputy Prosecutor General .

Syed Shahbaz Ali Rizvi, J:- The appellant namely Muhammad Naseer along with Muhammad Nadir co accused (since acquitted) was recommended for trial in case F.I.R.

No.152 dated 05.03.2009 under sections 302/34 P.P.C.

registered at Police Station Raza Abad, Faisalabad, and was convicted by learned Additional Sessions Judge, Faisalabad, under Section 302 (b) P.P.C. vide impugned judgment dated 23.6.2010 and sentenced as under: -

Death u/s 302 (b) PPC for the murder of Shahid Hussain (deceased) with compensation to the tune of Rs.50,000/- u/s 544-A, Cr.P.C to be paid to the legal heirs of the deceased and in default thereof, to further undergo for a period of six months.

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

2.This single judgment will dispose of the aforementioned Murder Reference No.487/2010 transmitted by the learned trial court u/s 374 Cr.P.C for confirmation or otherwise of the sentence of death awarded to the appellant as well as Criminal Appeal No.275-J/2010 filed by him.

3.The facts in brief, as disclosed by Mujahid Hussain (PW-1) complainant, in the F.I.R. (Ex.PA/2) are that on the day of occurrence i.e. 05.03.2009, he along with his brother Shahid Hussain (deceased), Muhammad Irfan and Muhammad Hussain, went to Faisalabad at 3:00 p.m. for some work and after having accomplished the same, Shahid Hussain told the complainant that the former had to take Rs.25,000/- from Naseer accused which he had obtained from him as a loan.

They went to his house where Muhammad Nadir and an unknown person were sitting; Naseer came there; Shahid Hussain and Naseer sat in the room; electric bulbs of the courtyard and room were lit up and on demanding the money back by Shahid Hussain, hot words were exchanged between them. Muhammad Nadir raised a lalkara that Shahid Hussain be taught a lesson for demanding his amount. On instigation by Muhammad Nadir, Muhammad Naseer fired two shots with his

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12 bore pump action which hit the upper side of Shahid Hussain’s forehead, left wrist and palm, on the left hand and right side of the abdomen. The accused brandished weapons threatening the complainant and his fellows to remain at a distance otherwise they would be killed and ran away. Shahid Hussain died at the spot.

4.After registration of formal F.I.R. (Ex.PA/2), the case was investigated by Muhammad Atif Inspector/I.O. (PW-

7)and on completion of investigation, the appellant was sent to court for facing trial.

5.Learned trial court after observing all the pre-trial codal formalities, indicted the appellant to which he pleaded not guilty and claimed to be tried.

6.The prosecution was asked to lead its evidence, which produced as many as 10 witnesses to prove its case. Dr.

Arshad Masood, Senior Demonstrator, (PW-10) conducted post mortem examination on the dead body of Shahid Hussain (deceased) on 06.03.2009 and observed as under:-

INJURIES

1-A. A firearm wound of entry 9x8 c.m. on left side of head, 4 cm above left ear and 6 cm above left eye. It was opened wound and brain was lying out of the skull. Scalp, skull, brain and membranes were found damaged. One plastic wade & five de- shaped firearm projectile (pallets) were recovered from the posterior side of brain, sealed and handed over to the police.

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2-A. Four firearm wounds of entry in an area of 6x4 cm on front right side of abdomen, 15 cm down to right nipple and 9 cm outer to midline. By this injury right side of chest and abdomen muscles were damaged when 9th and 10th ribs on front were damaged, then liver, diaphragm, right lung and pleura and right chest back ribs were fractured. One plastic wade and four firearm projectiles (pallets) were recovered from back of right chest were sealed and handed over to police.

3-A. Multiple firearm wounds of entry in an area of 8x6 cm on outer side of left hand and wrist towards ulna border including the wrist. 3-B. Multiple firearm wounds of exit in an area of 7x6 cm on palmer side of the hand and wrist on left side of the hand including the left wrist. By this injury local muscles and blood vassals were damaged.

OPINION

The doctor was of the opinion that death in this case occurred due to brain damage and hemorrhagic shock caused by injuries No.1-A & 2-A which were sufficient to cause death in an ordinary course of nature, individually as well as collectively. All the injuries were anti-mortem and inflicted by firearm weapons. Probable time that elapsed between injury and death was immediate and between death and postmortem was within 12-24 hours.

The doctor also verified the postmortem report (Ex.PJ) and pictorial diagrams (Ex.PJ/1 & Ex.PJ/2), the injury statement (Ex.PF) and inquest report (Ex.PG).

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The prosecution gave up Muhammad Irfan and

Muhammad Yaqoob PWs being unnecessary while the ocular account was furnished by the complainant (PW-1) and Muhammad Hussain (PW-2) who narrated the story of the occurrence almost the same, detailed in the F.I.R. Aurangzeb Draftsman (PW-3) prepared scaled site plan (Ex.PE). Inam-ul- Haq (PW-4), Qasim Ali (PW-5), Abdus Sattar (PW-6), Zulfiqar Ali (PW-8) and Muhammad Sarwar (PW-9) are formal in nature and need not to be reproduced. Muhammad Atif, Inspector/Investigating Officer appeared as PW-7 and deposed that he started the formal investigation of the case and recorded statement of the complainant (Ex.PA) which culminated into drafting of formal F.I.R. (Ex.PA/2); prepared the un-scaled site plan (Ex.PE/II); recorded the statements of the witnesses under Section 161 Cr.P.C; secured two empties of .12 bore pump action from the spot; collected the blood stained earth vide recovery memo (Ex.PB); arrested the accused Naseer and Nadir on 16.03.2008; during interrogation Naseer led him to the recovery of .12 bore pump action from a field after digging out earth along with 3 live cartridges; took into possession live cartridges (P-1/1-3) and pump action vide recovery memo (Ex.PH) and on completion of the investigation, submitted the challan to the court.

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7.By tendering into evidence the reports of the Chemical Examiner Ex.PK, of the Serologist Ex.PK/1 and that of the Forensic Science Laboratory Ex.PL, the prosecution closed its evidence.

8.Thereafter the statement of the appellant was recorded under Section 342 Cr.P.C., wherein he negated the allegations and professed his innocence. In reply to the question “why this case has been registered against you, and why PWs have deposed against you”, the appellant answered as under:-

“PWs are related to complainant, therefore, they have deposed against me. The deceased having criminal record had enmity with unknown persons, who committed his murder. The accused were dangerous. The complainant was scary of them, therefore, instead of involving the real accused I have been nominated by him malafidely.”

The appellant did not appear as his own witness to make statement on oath under Section 340 (2) Cr.P.C. in disproof of the allegations leveled against him by the prosecution, however, he produced some documents in his defence.

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

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10.Learned counsel for the appellant has argued that the appellant has been falsely involved in this case; that the witnesses are related interse and they, being interested witnesses, have made a false deposition against the appellant;

that actually the deceased was a hardened criminal and had enmity with many persons; that some unknown person committed murder of the deceased and the appellant has nothing to do with the occurrence; that there are material contradictions in the statements of the witnesses; the medical evidence is conflicting with the ocular account; that recovery of crime weapon has been planted against the appellant just to strengthen the prosecution case and that the appellant is innocent, therefore, prayed for his acquittal.

11.Conversely, learned Deputy Prosecutor General for the State has vehemently opposed the contentions, raised by the learned counsel for the appellant arguing that the eye witnesses have corroborated each other on each and every aspect of the case and even otherwise, the prosecution has proved its case through its cogent and confidence inspiring evidence consisting of ocular evidence, medical account and the recovery of weapon of offence coupled with the strong motive of loan, against the appellant and there is no reason to believe that the occurrence was committed by some unknown person and there

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is no chance of mistaken identity and substitution; that no reason for false implication of the appellant has been pointed out as no ill will or previous enmity between the parties is even alleged and that the impugned judgment does not call for any interference.

12.Having heard the learned counsel for the appellant, the learned Deputy Prosecutor General and gone through the record, especially the prosecution evidence, we have noticed that the eye-witness account has been furnished by the complainant Mujahid Hussain (PW.1) and Muhammad Hussain (PW.2). Both the witnesses have deposed in line with each other and narrated the occurrence in a crystal clear manner that the appellant made two shots with his gun 12 bore, hitting the deceased on his left wrist/palm, right side of his chest/right upper part of the belly and on the left side of his head. The injuries, as alleged by the eye witnesses were available on the body of the deceased as reflected in the post mortem report Ex.PJ. So far as the contention of the learned counsel for the appellant regarding the discrepancy in prosecution evidence about seat of injury on the abdomen or chest of the deceased is concerned; the perusal of injury No.2-A, reflected in the report Ex.PJ, clarifies this ambiguity which is reproduced as under: -

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2-A. Four firearm wounds of entry in an area of 6x4 cm on front right side of abdomen, 15 cm down to right nipple and 9 cm outer to midline. By this injury right side of chest and abdomen muscles were damaged when 9th and 10th ribs on front were damaged, then liver, diaphragm, right lung and pleura and right chest back ribs were fractured. One plastic wade and four firearm projectiles (pallets) were recovered from back of right chest were sealed and handed over to police.

Hence, we are of the view that in this regard, the ocular account is not in conflict with the medical evidence. Similarly, as far as the argument, advanced by learned counsel for the appellant regarding the sequence of fires made by the appellant hitting the deceased on different parts of his body is concerned;

we are of the opinion that such like discrepancy cannot be termed material discrepancy because it is quite natural that when a person is witnessing an incident in which live fire shots are being made at a distance of 3 to 4 feet, the description regarding the seat of injuries or the sequence of fires with exactitude cannot be expected from every witness. The more important thing, in this respect, is that the seat of injuries given by the eye witnesses is in line with the medical evidence. Even otherwise, it is a case in which only one accused i.e. the appellant is attributed all the firearm injuries on the person of the deceased, the discrepancy amongst both the witnesses regarding the sequence of infliction of injuries on different parts of the body of the deceased by two successive fires made

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by the appellant is of no consequence to the defence. The learned defence counsel cross examined both the witnesses at a reasonable length with regard to the material aspects of the occurrence but remained fail to shatter the confidence of the witnesses and veracity of their testimony.

13.Another important aspect of this case is that the place of occurrence is admittedly the house of the appellant.

The dead body, blood stained earth and the crime empties were taken into possession therefrom, which is not denied by the defence throughout the trial. Similarly, both the witnesses have reasonably and plausibly explained the reason for their presence at the relevant time at the place of occurrence and in this regard, despite the cross examination, no infirmity in their statements was found.

If we go through the statements of both the eye witnesses, we do not find any material contradictions or discrepancies in their oral narration, made before the leaned trial court and they remained firm and stuck to their version during cross examination and nothing surfaced in favour of the defence.

Even there is no chance of mistaken identity or substitution in this case as the source of light at the place of occurrence stands explained by the prosecution, which is not denied by the defence. Similarly, both the eye witnesses are closely related

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to the deceased and PW.1 Mujahid Hussain, being real brother of the deceased, cannot be expected to let the real culprit go by implicating an innocent person in the case of murder of his young brother, with the main role of causing fatal injuries to the deceased. Both the witnesses have proved the prosecution case while giving cogent, unimpeachable and confidence inspiring oral account of the unfortunate incident and the defence remained unsuccessful to point out even a single deviation or improvement by the witnesses in their previous statements, which further strengthens the veracity of their stance regarding the guilt of the appellant.

14.Medical account, in this case, also supports the ocular version given by the eye witnesses, as discussed above.

According to the eye witnesses, the appellant made two fire shots with his pump action gun, hitting on the left wrist and palm, left upper part of the belly and left side of head of the deceased. By perusing the post mortem report Ex.PJ as well as statement of the medical officer Dr. Arshad Masood, (PW.10), it becomes evident that the doctor found the similar injuries on the body of the deceased, as deposed by the witnesses. All the injuries on the person of the deceased, Shahid Hussain, were ante mortem, caused by firearm. Hence, we can surely hold that the medical evidence has corroborated the ocular account.

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15.So far as the recovery of crime weapon pump action gun along with three live cartridges from the possession of the appellant is concerned; the investigating officer Muhammad Atif Inspector (PW.7) and Muhammad Sarwar constable (PW.9) have deposed about the proceedings of recovery of pump action as well as three live cartridges P.1/1-3, effected from the appellant and taken into possession through memo Ex.PH. Earlier, on the occasion of spot inspection, the I.O also collected two empties of 12 bore pump action and secured the same vide memo Ex.PC. The I.O as well as the marginal witness to the recovery memo Ex.PH and Ex.PC have proved the recovery of both the articles, connecting the appellant with the commission of crime.

Similarly, the crime empties as well as gun 12 bore were sent to the office of Forensic Science Laboratory through Abdul Sattar 1747/C, handed over to him by Qasim Ali (PW.5), Moharrar of the Police Station and as per positive report of Forensic Science Laboratory Ex.PL, the said empties had been fired from the same pump action gun, recovered from the possession of the appellant.

16.From all the aspects, discussed above i.e. ocular account, medical evidence and recovery of weapon of offence from the appellant, we are of the considered view that it was

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none else but the appellant Muhammad Naseer who committed the murder of the deceased Shahid Hussain, brother of the complainant and the prosecution has successfully proved its case against the appellant beyond any shadow of reasonable doubt through the direct unimpeachable and trustworthy evidence of the eye witnesses, corroborated by the medical evidence and further strengthened by the recovery of weapon of offence from the appellant with positive report of Forensic Science Laboratory.

However, so far as the quantum of sentence is concerned, we have noted a very important factor in this case. A minute perusal of the whole prosecution evidence especially the ocular evidence, adduced by complainant Mujahid Hussain PW.1 and Muhammad Hussain PW.2, reveals that the occurrence took place at the residence of the appellant. According to the prosecution witnesses, the deceased had lent an amount of Rs.25,000/- to the appellant and on the day of occurrence, the deceased and others had gone to take that amount from the appellant and when the deceased made demand for return of the loan, some hot words were exchanged between the deceased and the appellant and during this altercation, the appellant, at the spur of the moment, took out his gun pump action, made firing hitting the deceased, resulting in his death.

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From the contents of FIR as well as oral narration of both the eye witnesses, it is nowhere found that the appellant had any intention to kill the deceased nor any evidence has come on the file reflecting any premeditation of the accused/appellant to commit this occurrence and we have felt that all happened at the spur of the moment. Muhammad Hussain (PW.2) in his examination in chief inter alia maintained that : - “...Shahid Hussain demanded his amount. Naseer Ahmad promised to pay later... Shahid Hussain used harsh words with Naseer accused. Naseer Ahmad raised pump action gun and fired at Shahid Hussain...”

17.The whole ocular evidence especially the above quoted part of the statement of PW.2 reveals that there was no premeditation or mens rea in the mind of the appellant to commit such a heinous offence. It was the deceased who flared up and used harsh words with the appellant, who might have felt ill and at the spur of the moment done actus reus.

A fundamental principle of Criminal Law is that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness of the fact that his or her conduct is criminal, is the mental element, and actus reus, the act itself, is the physical element. In the case in hand, the foremost element of a criminal act i.e mens rea is missing. Both the prosecution

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witnesses have not uttered even a single word that they ever informed the appellant prior in time regarding their visit for the purpose of getting loan amount back, so that the appellant might have made up his mind to do some criminal act. It suddenly happened when the deceased used harsh words, as deposed by PW.2, which irritated the appellant, who in the heat of passion and at the spur of the moment committed an act, defined in criminal law as “actus reus”. So, we are of the humble view that whatever was done by the appellant, was the result of irritation, created in his mind at the spur of the moment, without having any premeditation and this can be taken as mitigating/extenuating circumstance, as is held by the Hon’ble Supreme Court of Pakistan in case titled “Muhammad Anees v. The State” reported as 2002 SCMR 1068 & “Muzaffar Hussain v. Naukar Hussain and another” reported as 1990 SCMR 290.

18.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

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

19.For what has been discussed above, we feel that in such facts and circumstances of the case, death penalty awarded to the appellant is not justified, therefore, while maintaining the conviction of the appellant Muhammad Naseer under section 302(b) PPC for the murder of Shahid Hussain deceased, his sentence of death is converted into imprisonment for life as Tazir u/s 302(b) PPC. The sentence of payment of compensation amount to the tune of Rs.50,000/- under section 544-A, Cr.P.C and in default whereof to further undergo six

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months, as ordered by the learned trial court shall remain intact. Benefit of section 382-B, Cr.P.C shall be extended to the appellant. This appeal No.275-J of 2010 stands dismissed with the above modification in the quantum of sentence of the appellant.

The Murder Reference No.487 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

Approved for reporting.

Judge Judge

Rafaqat Ali