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