Murder by Churri (Knife)

 PLJ 2024 Cr.C. (Note) 219

[Lahore High Court, Lahore]

Present: Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ.

SHAUKAT HAYAT alias FATEH MUHAMMAD--Appellant

versus

STATE--Respondents

Crl. A. No. 126-J & M.R No. 104 of 2009, heard on 25.3.2013.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--“Medical evidence is exactly in line with ocular account”--Ocular account--Motive--Divorce--Sufficient incriminating evidence--Medical evidence--Benefit of doubt--Sentence altered--It is case of complainant that appellant inflicted two churri blows on deceased, hitting him on left side of chest and thereafter gave churri blows consecutively on his left biceps, left armpit and left flank--(PW.3) who conducted post mortem examination on dead body of deceased in post mortem examination report--The motive behind occurrence as alleged in FIR was that deceased had divorced Mst. Parveen maternal cousin of appellant and because of said grudge appellant committed murder of deceased by inflicting churri blows whereas complainant (PW.4) has stated in her cross-examination that wife of deceased had four brothers--She further stated that brothers of complainant and appellant never complained of showed anger over fact of divorce prior to occurrence--In circumstances there was no reason for appellant to commit murder of deceased because of this motive--There is sufficient incriminating evidence on record in form of straightforward and confidence inspiring ocular acount furnished by complainant (PW.4) and (PW.5), fully supported by medical evidence furnished (PW.3), even if evidence motive and recovery of Churri (P.2) at instance of appellant are excluded from consideration to maintain conviction of appellant under Section 302 (b), PPC awarded by trial Court, which is accordingly maintained--Held: It is well recognized principle of law that accused is entitled for benefit of any doubt as an extenuating circumstance, while deciding question of sentence--While maintaining conviction under Section 302(b), PPC, we alter sentence of appellant from punishment of death to imprisonment for life--The amount of compensation and sentence of imprisonment in default thereof as ordered by trial Court is maintained.                 

                                              [Para 12, 14, 15, 16 & 17] A, B, C, D & E

2009 SCMR 1188.

Mr. Abid Hussain, Advocate/Defence Counsel appointed at State for Appellant.

Mr. Arshad Mahmood, Deputy Prosecutor General for State.

Mr. Imtiaz Hussain Khan Baloch, Advocate for Complainant.

Date of hearing: 25.3.2013.

Judgment

Manzoor Ahmad Malik, J.--This judgment shall dispose of Criminal Appeal No. 126-J of 2009 titled as “Shaukat Hayat alias Fateh Muhammad versus The State” and Murder Reference No. 104 of 2009 titled as “State versus Shaukat Hayat alias Fateh Muhammad” as both these matters have arisen out of the same case i.e. FIR No. 374/2008 dated 13.06.2008, offence under Section 302, PPC, registered at Police Station Satellite Town, District Sargodha.

2. Shaukat Hayat alias Fateh Muhammad (appellant) was tried by the learned Additional Sessions Judge Sargodha in the above mentioned case. He was convicted vide judgment dated 23.02.2009, under Section 302(b), PPC and sentenced to death. He was also directed to pay Rs. 1,00,000/-(rupees one lac only) as compensation to the legal heirs of Muhammad Shahbaz (deceased) and in default whereof to undergo simple imprisonment for further six months. The learned trial Court has sent Murder Reference No. 104 of 2009 for confirmation or otherwise of the sentence of death awarded to Shaukat Hayat alias Fateh Muhammad (conviet) as required under Section 374, Code of Criminal Procedure.

3. Precisely, facts of the case, as contained in P.I.R. (Exh.PE/1), registered on the basis of statement (Exh.PE) made by Mst. Nasreen Akhtar (PW.4), are that complainant’s side consisted of four sisters and one brother namely Shahbaz aged about 24/25 years. Three sisters including complainant were married in Faisalabad whereas fourth sister namely Mst. Naseem was married in Lahore. 5/6 years prior to occurrence, Muhammad Shahbaz brother of the complainant was married to Mst. Parveen daughter of Khushi Muhammad, caste Kamboh, resident of Chak No. 115 Southern, situated within the jurisdiction of Police Station Ata Shaheed and out of the said wedlock a daughter namely Kiran aged 4% years and a son namely Mustafa aged about 3½ years were born who were alive. About three years before the occurrence, Muhammad Shahbaz brother of the complainant due to strained relations divorced his wife Mst. Parveen Bibi and his in-laws filed a suit for recovery of dowry articles in Civil Court, Sargodha which was pending adjudication. ¾ days prior to the occurrence, complainant had come to see her parents at Street No. 14 Jinah Colony, Sargodha. Complainant was a matriculate. On 13.06.2008 at 10:30 p.m. Shaukat son of Ferozdin, caste Kamboh, resident of Chak No. 88 Southern, situated within the jurisdiction of Police Station Saddar Sargodha, maternal cousin (mamoonzad) of complainant came as a guest. After serving him supper complainant and her mother Mst. Hameeda Bibi, maternal grandfather Ibrahim son of Rehmat Ali and brother Shahbaz were chatting with Shaukat while laying on the cots and a bulb was on in the Courtyard. At about 2:30 am. (night) all of a sudden Shaukat Ali (appellant) got out a churri from his folding (dab) of shalwar and raised a lalkara to Shahbaz that he would teach a lesson for divorcing his maternal cousin (khalazad) namely Mst. Parveen and inflicted two churri blows to Shahbaz brother of the complainant while he was laying on the cot, hitting him on the left side of chest and thereafter gave churri blows one after another on left biceps, left armpit and left flank. Shahbaz fell down from the cot while writhing. Shaukat (appellant) while brandishing churri fled away from the spot. When complainant and his mother attended Muhammad Shahbaz he had succumbed to the injuries at the spot. Motive behind the occurrence as alleged in the FIR was that Muhammad Shahbaz (deceased) had divorced Mst. Parveen maternal cousin of the Shaukat and because of said grudge he (appellant) committed the murder of Shahbaz by inflicting churri blows. The occurrence was witnessed by Mst. Hameedan Bibi and Ibrahim besides the complainant. Complainant was about to proceed to Police Station to report the matter but in the meantime Manzoor Hussain S.I (PW.9) reached at the spot.

4. Manzoor Hussain SI/SHO (PW.9) was posted as Incharge Police Post Lari Adda of Police Station Satellite Town, Sargodha. On 13.06.2008 after receiving information about the occurrence he reached at the spot and recorded the statement (Exh.PE) of Mst. Nasreen Akhtar and sent the same to Police Station for registration of FIR. Thereafter he inspected the dead body of Muhammad Shahbaz (deceased) and prepared injury statement (Exh.PC), inquest report (Exh.PD). He secured blood stained earth from the place of occurrence vide memo. (Exh.PH). He also took into possession blood stained cot (P.3) from the spot vide memo. (Exh.PG) and last worn clothes of the deceased viz shalwar (P.1) vide recovery memo. (Exh.PK). He also got prepared scaled site-plan (Exh.PA and Exh.PA/1) by Muhammad Saleem Draftsman (PW.2). He arrested Shaukat Hayat (appellant) on 29.06.2008 and obtained his physical remand. On 03.07.2008 appellant allegedly got recovered churri (P.2) vide recovery memo. (Exh.PF). Thereafter he got prepared the challan and submitted the same in the Court of competent jurisdiction.

5. The appellant was summoned by the learned Additional Sessions Judge Sargodha to face the trial. Copies of the documents, as required under Section 265-C, Code of Criminal Procedure, were provided to him and formal charge under Sections 302, PPC was framed against him on 05.01.2009 to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as nine witnesses, in all. Ocular account was furnished by Mst. Nasreen Akhtar complainant (P.W.4) and Mst. Hameeda Bibi (PW.5). Medical evidence was furnished by Dr Muhammad Iqbal (P.W.3). Mst. Nasreen Akhtar (PW.4) and Sagheer Ahmad (PW.6) witnessed the alleged recovery of churri (P.2) at the instance of appellant which was taken into possession vide recovery memo. (Exh.PF). Manzoor Hussain SI/SHO (PW.9) investigated this case and while appearing in the witness box, narrated the various steps taken by him during the course of investigation. Rest of the witnesses are formal in nature. Learned DDPP gave up PWs namely Ibrahim, Munawar Khan, Shahnawaz S.I, Muhammad Saleem being unnecessary and PW Ijaz Ahmad being on medical leave and closed the prosecution case on 18.02.2009 after tendering in evidence the report of Chemical Examiner (Exh.PL) and that of Serologist (Exh.PM). Statement of the appellant was recorded under Section 342, Code of Criminal Procedure on 20.02.2009 wherein he refuted all the allegations of prosecution. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Shaukat Hayat alias Fateh Muhammad (appellant) replied as under:

“I was on very good terms with the deceased and his parents. I have been involved in this case because it was a blind murder in the first place and I was roped in as accused by the complainant since I always considered her to be a negative character and I always spoke against her openly in biradari gatherings.”

The appellant did not appear as his own witness as provided under Section 340(2) Code of Criminal Procedure nor did he produce any evidence in his defence.

6. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence, this appeal and murder reference.

7. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that there is a delay of two hours in reporting the matter to the Police without there being any plausible explanation whereas distance between the Police Station and the place of occurrence was just two furlongs, which casts serious doubts about the presence of witnesses of ocular account at the spot, that both the witnesses of the ocular account i.e. Mst. Nasreen Akhtar (PW.4) and Mst. Hameeda Bibi (PW.5) are interested witnesses as they are closely related inter se as well as to the deceased; that presence of Mst. Nasreen Akhtar complainant (PW.4) at the spot is highly improbable and unnatural as she was the resident of Street No. 4 Chamanzar Colony, Faisalabad whereas the occurrence took place at Jinah Colony Sargodha; that in the FIR complainant has stated that she came to the house of her parents ¾ days prior to occurrence, whereas while appearing before the learned trial Court she changed her version by stating that she had come to the house of her mother Mst. Hamida Bibi about seven days prior to the occurrence; that motive behind the occurrence as alleged in the FIR was that Muhammad Shahbaz (deceased) had divorced Mst. Parveen maternal cousin of the Shaukat Hayat alias Fateh Muhammad and because of said grudge appellant committed the murder of Shahbaz by inflicting churri blows whereas Mst. Nasreen Akhtar complainant (PW.4) has stated in her cross-examination that Mst. Parveen Bibi wife of the deceased had four brothers and that in the circumstances, there was no reason for the appellant to commit the murder of Muhammad Shahbaz (deceased), that the alleged recovery of Churri (P.2) at the instance of appellant is immaterial as there is no report of Chemical Examiner or Serologist regarding churri (P.2) on the record; that the case of prosecution is of doubtful nature and the appellant is entitled to acquittal.

8. On the other hand, learned Deputy Prosecutor General, assisted by learned counsel for the complainant, opposes this appeal on the grounds that there is no conscious or deliberate delay in reporting the matter to the police if the circumstances of the case such as the time of occurrence are taken into consideration as the occurrence took place at night time and no male member except Ibrahim maternal grandfather of the complainant being infirm and old was present in the house; that presence of Mst. Hameeda Bibi (PW.5) at spot is established from the fact that she was resident of the same house where this incident took place, therefore, her presence in her own house at the odd hours of night was quite natural. So far as presence of Mst. Nasreen Akhtar complainant (PW.4) at the spot is concerned, learned counsel contends that the said witness stated in the FIR that she had come to the house of her parents ¾ days prior to the occurrence, therefore, her presence at the spot cannot be considered unnatural or improbable as it is the custom of our society that after the marriage the daughters pay frequent visits to the house of their parents; that both these witnesses have no enmity against the appellant for his false implication in this case; that though both the witnesses of the ocular account are related inter se as well as to the deceased but at the same time they are also related to the appellant as well; that even otherwise substitution in such like cases is a rare phenomenon as kith and kin of the deceased will not implicate an innocent person by letting off the real culprits; that the motive has also been proved; that the medical evidence is exactly in line with the ocular account; that the prosecution case is further corroborated by the recovery of churri (P.2) which was taken into possession through recovery memo. (Exh.PF); that there is no mitigating circumstance in this case, therefore, the appellant does not deserve any leniency even in the quantum of sentence,

9. We have heard learned counsel for the appellant, learned counsel for the complainant as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record with their able assistance.

10. This unfortunate incident, wherein Muhammad Shahbaz brother of the complainant, was done to death, as per FIR (Exh.PE/1) took place on 13.06.2008 at 2:30 a.m. (night) in the area of Jinah Colony situated within the jurisdiction of Police Station Satellite Town, District Sargodha and the matter was reported to the Police by Mst. areen Akhtar (PW.4) at 4:30 a.m. (night) i.e. after two hours of the occurrence. It is mentioned in the FIR that only women folk along with Ibrahim maternal grandfather of complainant (who was infirm being of advanced age) were present in the house at the time of occurrence. Considering all the circumstances of the case, especially the time of occurrence coupled with the social status of the complainant side we are of the view that there was no conscious or deliberate delay in reporting the matter to the Police.

11. The ocular account was furnished by Mst. Nasreen Akhtar complainant (PW.4) and Mst. Hameeda Bibi (PW.5). The presence of Mst. Hameeda Bibi (PW.5) at the spot is established from the fact that she was resident of the same house where this incident took place, whereas Mst. Nasreen Akhtar complainant (PW.4) had come to the house of her parents prior to the occurrence, therefore, her presence at the spot cannot be considered unnatural or improbable as it is instinctive nature for a daughter to visit her parents house after marriage. We further noted that there was no enmity between the parties to prompt the complainant or the other witness of the ocular account to falsely depose against the appellant. Even otherwise substitution in such like case is a rare phenomenon as kith and kin of the deceased will not implicate an innocent person by letting off the real culprits. The argument of learned counsel for the appellant that Mst. Nasreen Akhtar has changed her version while appearing before the learned trial Court by stating that she had come to the house of her mother seven days prior to the occurrence does not hold much water as the said change in version does not amount to improvement rather at the most it is just a discrepancy which might have crept into the record by afflux of time.

12. It is the case of the complainant that Shaukat Hayat alias, Fateh Muhammad (appellant) inflicted two churri blows on Muhammad Shahbaz (deceased), hitting him on the left side of chest and thereafter gave churri blows consecutively on his left biceps, left armpit and left flank. Dr Muhammad Iqbal (PW.3) who conducted post mortem examination on the dead body of Muhammad Shahbaz (deceased) in the post mortem examination report (Exh.PB) noted the following injuries:

1.       A incised wound 4 cm x 2 cm on middle part of front of left chest inner side 6 cm from left nipple 3 cm from midline.

2.       Incised wound 5 cm x 2½ cm on front of lower part of middle of left chest 5 em below left nipple and 4 cm from midline.

3.       Incised wound 8½ cm x 5 cm on front of inner and lower part of left arm, 4 cm above left elbow.

4.       Incised wound 1½ x 1 cm on left axilla.

5.       Incised wound 5 x 3 cm on the back of left upper region.

Therefore, we are of the view that medical evidence is exactly in line with the ocular account.

13. So far as alleged recovery of churri (P.2) at the instance of appellant which was taken into possession vide recovery memo. (Exh.PF) is concerned the same is immaterial as no report regarding churri (P.2) either by the Chemical Examiner or of Serologist is available on record.

14. The motive behind the occurrence as alleged in the FIR was that Muhammad Shahbaz (deceased) had divorced Mst. Parveen maternal cousin of the Shaukat Hayat alias Fateh Muhammad and because of said grudge appellant committed the murder of Shahbaz by inflicting churri blows whereas Mst. Nasreen Akhtar complainant (PW.4) has stated in her cross examination that Mst. Parveen Bibi wife of the deceased had four brothers. She further stated that brothers of Mst. Parveen Bibi and the appellant never complained of showed anger over the fact of divorce prior to the occurrence. In the circumstances there was no reason for the appellant to commit the murder of Muhammad Shahbaz (deceased) because of this motive. Therefore the motive alleged by the prosecution does not appeal to common sense and we are of the view that prosecution has failed to prove the motive part of the occurrence.

15. There is sufficient incriminating evidence on the record in the form of straightforward and confidence inspiring ocular acount furnished by Mst. Nasreen Akhtar complainant (PW.4) and Mst. Hameeda Bibi (PW.5), fully supported by the medical evidence furnished by Dr. Muhammad Iqbal (PW.3), even if the evidence motive and recovery of Churri (P.2) at the instance of appellant are excluded from consideration to maintain the conviction of Shaukat Hayat alias Fateh Muhammad appellant under Section 302 (b), PPC awarded by the learned trial Court, which is accordingly maintained.

16. However, we have noted that it is not a case of capital punishment for the following reasons:-

(a)      Recovery of Churri (P.2) is not helpful for the prosecution because of the reasons as elaborated in para 13 above.

(b)      Motive has not been believed by us as discussed in para 14 above.

(c)      The circumstances suggest that there was no serious or deep rooted enmity between the parties and the occurrence took place at the spur of moment as it is the case of prosecution that on 13.06.2008 at 10:30 p.m. appellant came in the house of complainant and soon after his arrival he was served meal. Thereafter complainant, her mother Mst. Hameeda Bibi, maternal grandfather Ibrahim and Muhammad Shahbaz (deceased) remained busy in chatting with Shaukat Hayat alias Fateh Muhammad (appellant) till 2:30 a.m. Something else happened prior to the occurrence which has not been brought on record.

Moreover, by now it is well recognized principle of law that the accused is entitled for the benefit of any doubt as an extenuating circumstance, while deciding question of sentence. We, here, respectfully refer to an observation of the Hon’ble Supreme Court of Pakistan in the case of “Mir Muhammad alias Miro versus The State” (2009 SCMR 1188 wherein at page 1191, the Hon’ble Supreme Court of Pakistan has emphasized as under:-

“9.      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.”

17. Therefore, while maintaining the conviction under Section 302(b), PPC, we alter the sentence of Shaukat Hayat alias Fateh Muhammad (appellant) from punishment of death to imprisonment for life. The amount of compensation and the sentence of imprisonment in default thereof as ordered by the learned trial Court is maintained. Appellant is also extended the benefit of Section 382-B, Code of Criminal Procedure. With the above modification in the quantum of sentence Criminal Appeal No. 126-J of 2009 is dismissed.

18. Murder Reference No. 104 of 2009 is answered in the NEGATIVE and the sentence of death awarded to Shaukat Hayat alias Fateh Muhammad (convict) is NOT CONFIRMED.

(A.A.K.)          Appeal dismissed

Reduction of Sentence in 9(C) CNSA, 1997

 PLJ 2024 Cr.C. (Note) 223

[Lahore High Court, Lahore]

Present: Muhammad Waheed Khan and Miss aalia Neelum, JJ.

MUZAFFAR alias MODI--Appellant

versus

STATE etc.--Respondents

Crl. A. No. 69148 of 2020, heard on 12.4.2022.

Control of Narcotic Substances Act,1997 (XXV of 1997)--

----S. 9(c)--1055 grams charas were recovered--Conviction of sentence--Challenge to--Modification in sentence--Reduction in sentence--The prosecution has ably proved its case, all PWs remained consistent not only during course of investigation but also before trial Court qua time, place, mode and manner of occurrence and recovery of contraband from possession of appellant--They also stood successfully to test of cross-examination and despite best efforts made by defence counsel, intrinsic value of their evidence could not be uprooted--Appellant has already served out one year, ten months and ten days, out of his total sentence i.e. four years, six months and probable date of his release has been mentioned as 27.09.2024, if fine is paid--Nothing is available on record to show that appellant is a previous convict--He is only bread winner of his family and he has already faced agony and rigour of investigation and trial before learned trial Court--Reduction of quantum of sentence awarded to appellant by trial Court, therefore, considering all these aspects of case, we are of opinion that interest of justice will be met, if sentence of appellant is reduced to one which he has already undergone--So, while maintaining conviction of appellant u/S. 9 (c) of CNSA, 1997, his sentence is reduced from four years and six months Rigorous Imprisonment, to which he has already undergone--Appeal dismissed.                    [Para 6, 7 & 8] A, B & C

2011 SCMR 965 & 2015 SCMR 735.

Mr. Muhammad Habib Ullah Bhatti, Advocate for Appellant.

Mr. Muhammad Waqas Anwar, Deputy Prosecutor General for Complainant/ State.

            Date of hearing 12.4.2022.

Judgment

Muhammad Waheed Khan, J.--Through the instant appeal, appellant has challenged conviction and sentence awarded to him by the learned Addl. Sessions Judge/Judge Special Court CNS, AhmadpurSial, vide judgment dated 04.12.2020 in case FIR No. 206 dated 01.06.2019 registered u/S. 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Garh Maharaja, whereby on conclusion of trial, learned trial Court convicted the appellant u/S. 9 (c) of the Control of Narcotic Substances Act, 1997 and sentenced him to four years and six Months rigorous imprisonment alongwith fine of Rs. 20.000/-, in default thereof, to further undergo five months simple imprisonment. Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.

2. Precisely, the prosecution story as per contents of FIR is that on 01.06.2019 at about 08.50 a.m., when complainant Muhammad Ajmal SI (PW-2) alongwith other police officials was present at Adda Hassu Blail in connection with routine patrol duty, on suspicision, they, apprehended the appellant who held a shopper in his right hand and on search of the said shopper charas weighing 1055 grams was recovered. On further search, sale proceeds of Rs. 2350/-was also recovered from his possession, hence, this case.

3. After registration of case, police investigated the matter and submitted report u/S. 173, Cr.P.C. before the learned trial Court by declaring the appellant as guilty. Learned trial Court after completing codal formalities, framed charge against the appellant, which was denied by him, so, the prosecution evidence was summoned. In order to prove the charge against the appellant, the prosecution produced as many as four witnesses. Mumtaz Ahmad 1760/HC, who chalked out the FIR and Moharrar of the Police Station appeared as PW-1. Muhammad Ajmal SI, complainant of the case appeared as PW-2, Fakhar Abbas 296/C, witness of recovery appeared as PW-3 and Zafar Ali Investigating Officer of the case appeared as PW-4. The prosecution after producing report of Punjab Forensic Science Agency (Ex-PE) closed its evidence. The appellant was examined u/S. 342, Cr.P.C., wherein he denied all the allegations leveled against him. He neither opted to appear u/S. 340(2), Cr.P.C. as his own witness, nor produced any evidence in his defence.

4. During the course of arguments, learned counsel for the appellant submits that he does not press this appeal on merits as the appellant has already served out substantial portion of his sentence and prayed that sentence of the appellant may be reduced to the period, which has already undergone by him. On the other hand, learned Deputy Prosecutor General has submitted that as far as conviction of appellant is not disturbed, he has not much to say qua the reduction in sentence as discretion in this regard exclusively lies with the Court.

5. Arguments heard. Record perused.

6. As the learned counsel for the appellant has opted not to assail the conviction awarded by the learned trial Court against the appellant, therefore, we do not feel it necessary to discuss the prosecution evidence in detail. However, we find that the prosecution has ably proved its case, all the PWs remained consistent not only during the course of investigation but also before the learned trial Court qua the time, place, mode and manner of occurrence and recovery of contraband from the possession of the appellant. They also stood successfully to the test of cross-examination and despite best efforts made by the learned defence counsel, intrinsic value of their evidence could not be uprooted. The report of Punjab Forensic Science Agency (Ex-PE) also confirmed the narcotics characters of the recovered contraband and nothing is available on record that there is any broken link qua the safe custody of parcels and its onward transmission to the Punjab Forensic Science Agency (PFSA) and in the Court.

7. During the pendency of this appeal, a report was requisitioned from the Superintendent District Jail, Jhang. Which is available on record, according to which, appellant has already served out one year, ten months and ten days, out of his total sentence i.e. four years, six months and probable date of his release has been mentioned as 27.09.2024, if the fine is paid. Nothing is available on record to show that the appellant is a previous convict. He is the only bread winner of his family and he has already faced the agony and rigour of investigation and trial before the learned trial Court. Therefore, the case of the appellant calls a lenient view in the light of judgment passed by the august Supreme Court of Pakistan in case titled as “Abdul Rehman v. The State” (2011 SCMR 965), wherein it had been held that;-

“After perusal of the record in light of the arguments advanced before us, it appears that there is no previous record of the conviction of the petitioner in any offence The recovery effected is Charas as pointed out by the learned counsel is distinct from heroin, therefore, the case calls for a lenient view.”

In another case of “Khuda Bakhsh v. The State” (2015 SCMR 735), the august Supreme Court of Pakistan had held that:

“Charas unlike other narcotics such as hereoin is less harmful and dangerous in the present case, keeping in mind the quantity (two kilograms), type of narcotic substance (Charas) and as this was the appellant’s first offence, the sentence of imprisonment for life awarded to the appellant appears to be excessive ....”

8. Since, learned counsel for the appellant has not pressed this appeal on merits and prayed for reduction of quantum of sentence awarded to the appellant by the learned trial Court, therefore, considering all these aspects of the case, we are of the opinion that interest of justice will be met, if sentence of the appellant is reduced to the one which he has already undergone.. So, while maintaining the conviction of the appellant under Section 9 (c) of CNSA, 1997, his sentence is reduced from four years and six months Rigorous Imprisonment, to which he has already undergone. However, sentence of fine and in default whereof shall remain intact. Benefit of Section 382-B, Cr.P.C. is extended to him.

9. With the above said modification in the impugned judgment, this criminal appeal is dismissed.

(A.A.K.)          Appeal dismissed

302(b) - Modification in Quantum of Sentence

 PLJ 2024 Cr.C. (Note) 227

[Lahore High Court, Multan Bench]

Present: Ch. Abdul Aziz and Anwaarul Haq Pannun, JJ.

GHULAM AKBAR--Appellant

versus

ZULFIQAR ALI etc.--Respondents

Crl. A. No. 516 & M.R No. 47 of 2020, decided on 27.2.2024.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Modification in quantum of sentence--Place of occurrence and time of occurrence have not been denied by accused--Presence of both witnesses at place of occurrence is neither improbable nor can be doubted and merely on account of their relationship with deceased, their evidence cannot be discarded in absence of any inconsistency or inherent infirmity in their deposition--Even in their cross-examination both eye-witnesses remained consistent on all material aspects of prosecution’s case and their evidence is fully supported by medical evidence--Plea of substitution taken on behalf of appellant remained unproved--Even otherwise, substitution of accused in such like murder case by complainant is a rare phenomenon--Even after exclusion of recovery, there remains sufficient evidence in form of confidence inspiring and trustworthy ocular account fully supported by medical evidence against appellant therefore, his conviction under Section 302(b), PPC being based upon well-settled principles of appreciation of evidence is maintained--It is not a case of capital sentence as there are certain extenuating circumstances in favour of appellant to warrant lesse sentence--Appellant in peculiar circumstances of this case deserves benefit of doubt to extent of his sentence one out of two provided u/S. 302 (b), PPC--It is well-recognized principle by now that accused is entitled for benefit of doubt as an extenuating circumstance while deciding his question of sentence.

                                                                   [Para 10 & 12] A, B, D & E

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 75--Criminal Procedure Code, (V of 1898), S. 510--Prosecution has failed to bring on record original report of Punjab Forensic Science Agency and has merely produced photocopy of said report  which is inadmissible in evidence being against mandate of Section 510, Cr.P.C--According to Article 75 of Qanun-e-Shahadat Order, 1984, a document must be proved by primary evidence whereas Article 76 thereof provides some exceptions under which secondary evidence may be permitted to be given in place of original--The proof of loss of a document is a condition precedent for granting permission to lead secondary evidence--In present case, neither any application was submitted nor permission obtained for producing photocopy of report of Punjab Forensic Science Agency as secondary evidence--As far as motive in this case is concerned, strained relations between parties has not been denied.

                                                                                           [Para 11] C

2011 SCMR 429, 2008 SCMR 688 and 2014 SCMR 1034.

Mr. Muhammad Usman Sharif Khosa, Advocate assisted by Mr. Qaisar Abbas, Advocate for Appellant.

Mr. Adnan Latif, Deputy Prosecutor General for State.

Mr. Abdul Rehman Ahmad Rizwan Sadozai, Advocate assisted by Ms. Saima Kanwal, Advocate for Complainant.

Date of hearing 27.2.2024.

Judgment

Anwaarul Haq Pannun, J.--Ghulam Akbar, appellant along with his co-accused namely Akhtar Abbas, Ansar Abbas and Azhar Abbas was tried in a Complaint Case pertaining to case F.I.R
No. 83/2018 dated 28.04.2018, registered at Police Station B-Division, Dera Ghazi Khan, in respect of offence under Sections 302, 34, PPC. On conclusion of trial, learned trial Court vide its judgment dated 7.11.2020 has convicted the appellant under Section 302(b), PPC and sentenced him to death on two counts with a compensation of
Rs. 200,000/- each under Section 544-A, Cr.P.C. to the legal heirs of each deceased, recoverable as arrears of land revenue, and in default of payment of compensation to undergo six months S.I., whereas co-accused Akhtar Abbas, Ansar Abbas and Azhar Abbas were acquitted of the charges.

Murder Reference No. 47 of 2020 for confirmation or otherwise of death sentence awarded to the appellant Ghulam Akbar shall also be disposed of through this single judgment.

2. Initially, complainant Zulfiqar Ali (PW-4) got registered F.I.R No. 83/2018 (Ex.PD/1), under Sections 302, 34, PPC at Police Station B-Division, Dera Ghazi Khan, but during the investigation co-accused Akhtar Abbas, Ansar Abbas and Azhar Abbas were declared innocent by the police. Feeling aggrieved of the investigation, the complainant preferred a Private Complaint (Ex.PK). As per contents of the complaint, on 28.04.2018 at 11:00 a.m. the complainant along with his brother Umer Siraj, father Naseer Muhammad and mother Musarrat Wazir Bibi was present at his house situated in Sajjad-Abad Colony; meanwhile, the accused Ghulam Akbar, Akhtar Abbas, Ansar Abbas and Azhar Abbas while armed with pistols entered into the house of the complainant; accused Ghulam Akbar raised lalkara that he will not let alive the father and the mother of the complainant for quarrelling with his sisters and daughter and for not letting them to rehabilitate; he made successive fires with his pistol hitting the father and mother of the complainant who succumbed to the injuries at the spot; rest of the accused extended threats of dire consequences to the complainant and his brother, thereafter, all the accused persons decamped while brandishing their weapons.

3. Motive behind the occurrence, as stated by the complainant, was that two sisters and one daughter of accused Ghulam Akbar are wives of the complainant and his two brothers respectively, but due to some estrangement/disunity they left the houses of their husbands and are Living in the house of their parents.

4. All the accused were summoned by the learned trial Court and they were formally charge-sheeted under Sections 302, 459, 114, 34, PPC, to which they pleaded not guilty and claimed trial. The complainant produced as many as ten witnesses to prove charge against the accused whereas one CW was examined by the learned trial Court.

Dr. Aiman Javed, WMO (PW-9) and Dr. Muhammad Tanvir Hussain (PW-10) conducted postmortem examinations on the dead bodies of the deceased; Ghulam Akbar, S.I (CW-1) conducted investigation of this case, whereas Zulfiqar Ali, complainant (PW-4) and Umer Siraj (PW-5) furnished the ocular account.

5. On 28.04.2018 at 03:55. P.m., post-mortem examination on the dead body of Musarrat Wazeer deceased was conducted and the doctor (PW-9) found the following injuries:

1.       There is an oval lacerated wound of about 1cm x 1.5cm with inverted margins present on the right pterion. Blackening present but no burning seen at the time of examination. This is the wound of entry.

2.       There is oval lacerated wound of 2cm x 2.5cm with everted margins and dribbling of blood from the wound present on the left temporal bone 3cm above the mastoid process and 2cm posterior lateral to the left ear.

In her opinion, cause of death was damage to vital organ i.e. brain due to Injury No. 1 caused by firearm, which was sufficient to cause death in ordinary course of nature. Probable time elapsed between injuries and death was 02 to 03 minutes and between death and postmortem 05 to 06 hours.

On the same day i.e. 28.04.2018 at about 04:00 p.m., post-mortem examination on the dead body of Naseer Muhammad deceased was conducted and the doctor (PW-10) found the following injuries:

1.       A lacerated wound of about 1.2cm x 1.6cm oval shaped present on right side of head about 4cm above right ear, burning and blackening were present, having Collar of abrasion towards frontal side, margins were inverted, going deep in. It was an entry wound.

2.       A lacerated wound of about 2.5cm x 2cm present below left ear just Icm below left ear, margins are everted. It was an exit wound. Injury No. 1 and 2 were inter connected.

4.       A lacerated wound of about 2cm x 1.2cm present on left side of front of neck, burning blackening were present, margins were inverted, Collar of abrasion was on medial side, entry wound was going deep in.

4.       A lacerated wound of about 2.5cm x 2.5cm was present on back of neck, margins were everted. It was exit wound of Injury No. 3.

5.       A lacerated wound of about 1.5cm x 1cm present on left arm 3cm lateral to shoulder joint, margins were inverted, burning and blackening were present, abrasion collar was on upper margins, it was entry wound. I pellet was recovered from wound.

In his opinion, Injuries No. 1 and 2 caused damage to brain which is vital organ and Injuries No. 3 and 4 ruptured blood vessels which are major vessels for supplying blood to the brain and these injuries were sufficient to cause immediate death in ordinary way of life. Probable time elapsed between injuries and death was immediate and between death and postmortem 04 to 07 hours.

6. Learned counsel for the complainant after tendering in evidence certified copy of DNA & Serology Report (Exh.PO), certified copies of Firearms & Tool Marks Examination (Exh.PP & Exh.PP/1), certified copy of Latent Finger Print Examination Report (Exh.PQ), certified copies of Trace Chemistry Analysis Reports (Exh.PR & Exh.PR/1), report of Emergency Service Rescue-1122 (Exh.PS), certified copy of divorce document of Umer Siraj (Exh.PT & Exh.PT/1) and certified copy of divorce document of Zulfiqar Ali (Exh.PU & Exh.PU/1) closed the prosecution’s case.

7. Thereafter, statement of the accused under Section 342, Cr.P.C. was recorded, in which he refuted all the allegations levelled against him and professed his innocence. While answering to question (Why this case is against you and why the PWs have deposed against you?), the appellant replied as under:

“It was a blind murder. I have been involved in this case due to mere suspicion. The PWs are inter se related and they have deposed falsely against me.”

The accused/appellant neither opted to appear as his own witness under Section 340(2), Cr.P.C. nor produced any defence evidence.

8. We have heard the learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the record with their able assistance.

9. The occurrence in this case took place at about 11:00 a.m. and the matter was reported to the ‘police at 12:05 a.m. i.e. just after about one hour of the occurrence. Postmortem examinations of both the deceased were also conducted on the same day at 3:55 p.m. and 04:00 p.m. respectively. In view of such prompt reporting of the matter to the police, we are of the view that there is no question of any consultation or deliberation on the part of the complainant.

10. The ocular account in this case has been furnished by two witnesses i.e. PW-4 Zulfiqar Ali and PW-5 Umer Siraj. Both the PWs are the sons of the deceased and at the time of occurrence they were present at their home along with the deceased. Moreover, both the PWs have reasonably explained their presence at the time and place of occurrence. Even otherwise, place of occurrence and the time of occurrence have not been denied by the accused. Therefore, the presence of both the witnesses at the place of occurrence is neither improbable nor can be doubted and merely on account of their relationship with the deceased, their evidence cannot be discarded in the absence of any inconsistency or inherent infirmity in their deposition. In this context, reliance is placed on the judgment reported as Khizar Hayat vs. The State (2011 SCMR 429). The firearm injuries on the persons of the deceased have specifically been attributed to the appellant. We have noted that even in their cross-examination both the eye-witnesses remained consistent on all material aspects of the prosecution’s case and their evidence is fully supported by the medical evidence. We have also observed that the plea of substitution taken on behalf of the appellant remained unproved. Even otherwise, substitution of accused in such like murder case by the complainant is a rare phenomenon. Reliance is placed on Khalid Saif Ullah vs. The State (2008 SCMR 688).

11. Recovery of pistol .30-bore from the appellant is of no avail for the prosecution as in this case the prosecution has failed to bring on record the original report of the Punjab Forensic Science Agency and has merely produced photocopy of the said report (Exh.PP), which is inadmissible in evidence being against the mandate of Section 510, Cr.P.C. According to Article 75 of Qanun-e-Shahadat Order, 1984, a document must be proved by primary evidence whereas Article 76 thereof provides some exceptions under which secondary evidence may be permitted to be given in place of the original. The proof of loss of a document is a condition precedent for granting permission to lead secondary evidence. In the present case, neither any application was submitted nor permission obtained for producing photocopy of the report of the Punjab Forensic Science Agency as secondary evidence. As far as motive in this case is concerned, strained relations between parties has not been denied.

12. Keeping in view all above, we are of the considered view that even after exclusion of recovery, there remains sufficient evidence in the form of confidence inspiring and trustworthy ocular account fully supported by medical evidence against the appellant Ghulam Akbar, therefore, his conviction under Section 302(b), PPC being based upon well-settled principles of appreciation of evidence is maintained. However, in our view it is not a case of capital sentence as there are certain extenuating circumstances in favour of appellant to warrant lesser sentence. Therefore, we are convinced that the appellant in the peculiar circumstances of this case deserves benefit of doubt to the extent of his sentence one out of two provided under Section 302 (b), PPC. It is well-recognized principle by now that accused is entitled for the benefit of doubt as an extenuating circumstance while deciding his question of sentence. Reliance is placed on Ghulam Mohy-ud-Din alias Haji Babu and others vs. The State (2014 SCMR 1034).

13. Resultantly, while maintaining the conviction of the appellant Ghulam Akbar under Section 302(b), PPC, his sentence is altered from death to imprisonment for life on two counts with the benefit of Section 382-B, Cr.P.C.; but the penalty of compensation and the sentence in default thereof awarded to him by the learned trial Court are maintained. With the above modification in the quantum of sentence, Criminal Appeal No. 516 of 2020 is dismissed.

14. Death sentence of the convict Ghulam Akbar is not confirmed and Murder Reference No. 47 of 2020 is answered in the Negative.

(A.A.K.)          Appeal dismissed

Allah Almighty shows His love and affection with a person who speaks nothing except truth

 PLJ 2024 Cr.C. (Note) 229

[Lahore High Court, Lahore]

Present: Mazhar Iqbal Sidhu and Ijaz Ahmad Chaudhary, JJ.

BILAL ARSHAD--Appellant

versus

STATE--Respondents

Crl. A. No. 175-J of 2007 & M.R. No. 596 of 2006,
heard on 14.9.2011.

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302(b), 449, 324 & 337-F(ii)--Murder reference--Conviction and sentence--Challenge to--Quantum of sentence--The appellant has been found teen-ager and he has yet to enter in realities of life--Although appellant contested case by gainsaying charge framed against him and hot pursuits is vivid through cross examination but all of sudden when he was examined u/S. 342, Cr.P.C., admitted commission of occurrence--This fact can reasonably be construed in favour of appellant that he must has been repented through his scruple and boldly spoke truth--This particular act of bravery of appellant is required to be appreciated not for purpose of imposition of capital sentence but with this angle that Allah Almighty shows His love and affection with a person who speaks nothing except truth--Principles of administration of criminal justice are very lucid that burden of proof always remains on party who asserts--The prosecution has fully been able to prove its case against appellant beyond any shadow of reasonable doubt but for reasons herein before discussed we are of view that quantum of sentence imposed upon appellant is required to be reduced to imprisonment for life and same is accordingly commuted from death sentence to imprisonment for life--Resultantly death sentence imposed to appellant is not confirmed and murder reference is answered in negative.                                                             [Para 11, 12 & 13] A, C & D

Criminal Procedure Code, 1898 (V of 1898)--

----S. 418--Appeal may lie on matter of fact--Phraseology of Section 418 of Criminal Procedure Code, 1898 is very much illuminative that an appeal may lie on a matter of fact as well as on a matter of law and its explanation is alleged severity of sentence shall for purpose of this section be deemed to be a matter of law--Age of appellant has primarily been considered in Penal servitudes.                              [Para 12] B

Mr. Abid Hussain @ Abid Raza Shaheen, Advocate for Appellant.

Mr. Tariq Javaid, DDPP for State.

Date of hearing: 14.9.2011.

Judgment

Mazhar Iqbal Sidhu, J.--This judgment will dispose of above captioned criminal appeal filed by Bilal Arshad appellant as well as Murder Reference for confirmation of his death sentence or otherwise, who was convicted by learned Addl. Sessions Judge, Faisalabad in a case vide FIR No. 819/04 dated 06.09.2004 under Sections 302/324/449, PPC registered at Police Station, Nishatabad, Distt. Faisalabad vide impugned judgment dated 17.05.2006 and sentenced as follows:-

Bilal Arshad, Appellant,

i)        Death sentence under section 302(b), PPC and to pay an amount of Rs. 1,00,000/-as compensation to the legal heirs of the deceased Nadeem Aslam under Section  544-A, Cr.P.C. and in default whereof to undergo S.I. for six months.

ii)       Ten years R.I. under Section 449, PPC with fine of Rs. 50,000/-and in default whereof to further undergo SI for three months.

iii)      Ten years R.I. under Section 324, PPC for committing murderous assault on Ijaz Ahmad injured PW with fine of Rs. 50,000/-and in default whereof to further undergo SI for three months.

iv)      Three years R.I. under Section 337-F(ii), PPC on two counts.

All the sentences were ordered to run concurrently.

2. The facts disclosed by complainant Shehbaz Aslam (PW.9) in FIR Exh.PE/1 are that he deals with the business of rice. On 6.9.2004 at about 9.00 PM (night) he along with his brothers Nadeem Aslam deceased, Ejaz Ahmad injured and Baber Aslam-PW were sitting in the Courtyard of his house, suddenly, Bilal Arshad appellant, his nephew entered in the house while armed with pistol. His brother Nadeem Aslam deceased asked him not to come their house armed with pistol as they do not permit any person to come to their house armed with pistol. At this, Bilal Arshad appellant became furious and started abusing Nadeem Aslam, the deceased one. Ijaz Ahmad, his other brother, reprimanded Bilal Arshad appellant but in rage he made two straight fire shots at Nadeem Aslam that landed on his chest and as a result of which he fell to the ground. Ijaz Ahmad came forward, and then appellant Bilal Arshad again made two fire shots hitting Ijaz Ahmad (injured PW) on his right foot and left calf. He also fell to ground. He and Baber Aslam took Nadeem Aslam deceased the then injured and Ijaz Aslam injured to the hospital where Nadeem Aslam succumbed to the injuries while Ijaz Ahmad (Injured) was admitted in the hospital. He further narrated that Bilal Arshad is his nephew and is a street-boy and disobedient. He on a small quarrel committed Qatl-e-Amd of Nadeem Aslam deceased while injured Ejaz Ahmad.

3. Shoukat All SI (PW.13) deposed that on 6.9.2004 he after receipt of information of the occurrence arrived at Allied-Hospital, Faisalabad. He inspected the dead body, prepared injury sheet Exh.PB and inquest report Exh.PC and handed over the dead body to Muhammad Azam 3206/C for the purpose of post mortem examination. Thereafter, he proceeded to the place of occurrence, inspected the spot, took blood imbrued earth and grass, made the same into sealed parcel by memo. Exh.PH attested by the PWs. He also secured two empties of bullets, made the same into sealed parcel and took into possession vide memo. Exh.PJ attested by the PWs. He prepared rough site-plan Exh.PL of the place of occurrence. On 7.9.2004, Muhammad Azam constable, after the post mortem, presented before him last worn togs of the deceased P-1 to P-3, which he took into possession vide memo. Exh.PG attested by the PWs. On 10.9.2004 he got prepared scaled site-plan in duplicate Exh.PF and Exh.PF/1. On 13.9.2004, he arrested the appellant and on the follow day obtained his physical remand from the Court of Area Magistrate. On 16.9.2004, appellant Bilal Arshad while in policed custody, made a disclosure and got recovered pistol 9 MM P-5 along with four live bullets P-6/1-4, made the same into sealed parcel and took into possession vide recovery memo. Exh.PK attested by the PWs. He also prepared rough site-plan Exh.PK/1 regarding the said recovery. On 18.9.2004 appellant was sent to judicial lock up. He also recorded the statements of the PWs step-wise. He handed over the case property to the Moharrar of Police Station. Investigation culminated in preparing the report under Section 173, Cr.P.C.

4. Trial concluded, resulted in pronouncement of impugned judgment.

5. At the trial, prosecution in order to prove its case, produced 13 PWs in all.

Dr. Muhammad Nadeem, Demonstrator, Forensic Medicine Department, PMC, Faisalabad was examined as PW.1. He on 07.09.2004 at 10.20 a.m. conducted post-mortem examination on the dead body of Nadeem Aslam deceased and observed as under:

INJURIES:

i)        A firearm wound of entry oblique in shape 3 cm x 1-½ cm in size with inverted and abraded margins on right chest, 5 cm below right clavicle, 9 cm above right nipple and 10 cm away from midline.

2-A     A fire arm wound of entry 1 cm x 1 cm in size with abraded and inverted margins on outer aspect of right fire arm, 5 cm above right wrist, 20 cm below right elbow joint.

2-B     A fire arm wound of exit 1 cm x 1 cm in size with everted margin on inner side of right fore arm, 4 cm opposite to entry wound.

REMARKS

          In his opinion, cause of death was haemorrhage and shock caused by Injury No. 1, which was inflicted by firearm and was ante mortem and was sufficient to cause dearth in ordinary course of nature. Injuries No. 2-A and 2-B were also inflicted by firearms and were ante mortem.

          Probable time that elapsed between injury and death was within a few minute and between death and post mortem was within 24 hours.

          Exh.PA was the correct carbon copy of the post-mortem report and Ex.PA and Exh.PA/2 were the diagram showing the location of the injuries, the same bore his signatures. He also endorsed injury sheet Exh.PB and inquest report Exh.PC regarding the dead body of Nadeem Aslam.

          Dr. Tahir Ismail, CMO, Allied Hospital, Faisalabad was examined as PW.2. He on 6.9.2004 at about 9.10 PM medically examined Ijaz Ahmad injured and observed three injuries on his body. All injuries were caused by firearms. Exh.PD was the correct carbon copy of MLC while Exh.PD/1 was the diagram of injuries showing the location of injuries.

Learned APP by renouncing PWs namely Dr. Ali Amin, Naveed Yousaf and Ahmad Ali 937/HC as being unnecessary, thereafter by tendering in evidence reports of Chemical Examiner regarding blood imbrued earth Exh.PN and that of Serologist Exh.PN/1 and report of Forensic Science Laboratory as Exh.PQ, closed the prosecution case.

6. Then the statement of the appellant under Section 342, Cr.P.C. was recorded wherein he admitted the entire incriminative prosecution evidence. He neither opted to appear on oath as required under Section 340(2), Cr.P.C. nor opted to produce evidence in defence. He while answering to the question “why is this case against you and why the PWs have deposed against you?” stated as follows:

“I have rightly been involved in this case.”

The trial concluded in conviction and sentence of the appellant as mentioned supra.

7. In support of this appeal learned counsel for the appellant submits that it is a bad bloodless case; circumstances reveal that occurrence took place at the spur of the moment and before the firing, the deceased forbade the appellant his arrival with pistol in his house, whereupon appellant became unpalatable and also flared up and then under the heat of passions, allegedly made firing might not with an intention to kill the deceased and injuring to another. Further submitted that appellant as well as deceased Nadeem Aslam and Ejaz Ahmad injured are inter se related and all of a sudden hoodoo made intruded the houses of both the parties. In this respect it has been submitted that the prosecution has petered in screening out the cause of abstaining the appellant to his house with pistol.

8. Learned counsel submits that recovery of spent crime empties four in number and the pistol P-5 has been falsely planted upon the petitioner and the report of Firearm Examiner/Ballistic Expert has also been manoeuvered to beef up the case of the prosecution. Further submitted that despite the fact that the appellant has admitted the occurrence in all respects in his statement recorded under Section 342, Cr.P.C. and even has not offered any explanation as to happening of the incident and it is the burden of proof remains on the prosecution and if the prosecution’s own case provides a benefit to an accused, then the same has to be resolved in favour of the accused. Further submits that under the preternatural circumstances through the behaviour of the appellant, he has shown bravery by making truthful statement before Court and the Almighty Allah not only likes the truthful persons but also admires them with appreciation. In this background, statement of the appellant under Section 342, Cr.P.C. may not be interpreted and continued against the appellant rather it requires to be appreciated. Further submitted that the appellant was teen-ager at the time of occurrence and perhaps was not aware the implications of his act having been perpetrated by him and in ambient circumstances, it is a fit case to provide extenuation by way of commuting his capital sentence to Imprisonment for life.

9. Learned DDPP has opposed the acceptance of appeal as well as supplication of reduction of quantum of sentence clinchingly through exquisite arguments that FIR was lodged without being gained any undue time for deliberations and consultations; the appellant came in the house of the deceased with a sophisticated weapon and just on refraining him as to why he had come to the house with weapon, he reacted unpalatably and being so on a matter like the rotting, made indiscriminate firing resulted in death of a young person Nadeem Aslam and caused injuries to Ijaz Ahmad injured PW.11. Further submitted that presence of the PWs can absolutely not be questioned being inmates of the house and indubitably the occurrence took place in the interior of house and this fact has gone unchallenged and the report of the Ballistic Expert is positive and the same synchronizes the version of the prosecution, in addition to that, the appellant has admitted the commission of occurrence in his statement recorded under Section 342, Cr.P.C. while answering to the allegations put by the prosecution against him by way of affirmation. Lastly, it has been submitted that teen-age by itself is no ground to extend him benefit of the same and contrarily has been argued that possessing of formidable weapon and on a petty matter he did away with the life of an innocent young chap and caused injuries to Ijaz Ahmad PW, necessarily and primarily exposes and demonstrates element of desperation on part of the appellant and has prayed for dismissal of appeal as well as positive answer to the murder reference.

10. We have hearkened the arguments and have gone through the record.

11. It has gone undisputed that complainant party as well as the appellant have inter se propinquity and no bad blood has been found between them ever earlier. The reporting of incident with promptitude excludes chances of deliberations and consultations even question of mistaken of identity of the appellant does not arise. This fact cannot be refuted that deceased was the visitor in the said house. At this juncture, it is also regarded that the alleged weapon held by the appellant was not carried by him in order to cause harm to any person in the house of the complainant party whereas without being exposed of any undue/unusual act by the appellant, he was reprimanded by the deceased for taking weapon and perhaps the deceased being elder of the appellant might have expectations that the appellant would not react seriously but happened otherwise suddenly without any intention and by passing over the outcome of firing being ragged, the appellant made firing cannot be ruled out. The appellant was the regular visitor to the house of the complainant party and there was nothing wrong in the house of the occurrence and why the appellant was forbidden by the deceased person to bring a pistol in the house, has been found nebulous and being mystified remained in shrouds.

The appellant has been found teen-ager and he has yet to enter in realities of life. Although the appellant contested the case by gainsaying the charge framed against him and the hot pursuits is vivid through cross-examination but all of sudden when he was examined under Section 342, Cr.P.C., admitted the commission of occurrence. This fact can reasonably be construed in favour of the appellant that he must has been repented through his scruple and boldly spoke the truth. This particular act of bravery of the appellant is required to be appreciated not for the purpose of imposition of capital sentence but with this angle that the Allah the Almighty shows His love and affection with a person who speaks nothing except truth. Principles of administration of criminal justice are very lucid that burden of proof always remains on the party who asserts. The affirmative replies of the accused/appellant to the incriminative evidence put to him under Section 342, Cr.P.C. cannot be interpreted to confession. However, this particular stance of the appellant has to be evaluated in the light of facts and circumstances of the case and if prosecution’s own case through its own infrastructure provides a benefit to an accused person, even then his admission under Section 342, Cr.P.C. to the allegations cannot be construed as confession. The appellant being teen-ager is required to be dealt with leniently as to the quantum of sentence.

12. Phraseology of Section 418 of the Criminal Procedure Code, 1898 is very much illuminative that an appeal may lie on a matter of fact as well as on a matter of law and its explanation is the alleged severity of sentence shall for the purpose of this section be deemed to be a matter of law. Age of the appellant has primarily been considered in the Penal servitudes. In these circumstances, being guided by the celebrated legal precedents of the Hon’ble Apex Court if a case of an accused ranging slightly above to 18 years, then of course being a case of border line, benefit as to quantum of sentence can be given to the accused and the same is accordingly extended in this case in favour of the appellant.

13. For what has been discussed above, we have been convinced that the prosecution has fully been able to prove its case against the appellant beyond any shadow of reasonable doubt but for the reasons herein before discussed we are of the view that quantum of sentence imposed upon the appellant is required to be reduced to imprisonment for life and the same is accordingly commuted from death sentence to imprisonment for life. Resultantly death sentence imposed to the appellant is NOT CONFIRMED and murder reference is answered in the NEGATIVE.

14. So far as quantum of sentence imposed for allegedly causing injuries to Ijaz Ahmad injured PW.11 under Section 324, PPC is concerned, the same is reduced from 10 years R.I. to 05 years R.I. and the amount of fine is also reduced from Rs. 50,000/-to Rs. 25,000/-and in default whereof, he shall further undergo S.I for 1½ months instead of three months. Likewise quantum of sentence Imposed under Section 337F(ii), PPC, is also reduced from three years R.I. to 1½ year R.I. on two counts. As far as quantum of sentence imposed under Section 449, PPC is concerned, the same, too, is reduced from 10 years R.I. to five years R.I. and the amount of fine is also toned down from Rs. 50,000/-to Rs. 25,000/-and in default whereof, he shall further undergo S.I. 1½ months instead of three months. Amount of compensation in the ambient circumstances of the case is also toned down from Rs. 1,00,000/-to Rs. 50,000/-and in default whereof to undergo six months SI. The appellant shall be entitled to have the benefit of Section 382-B, Cr.P.C. and all the sentences are ordered to run concurrently/ simultaneously. With these modifications, the instant Appeal is dismissed.

(A.A.K.)          Appeal dismissed