M.R.No.596 of 2006.
Crl.A.No.175-J of 2007.
Stereo. H C J D A 38.
JUDGMENT SHEET
IN THE LAHORE HIGHT COURT LAHORE
JUDICIAL DEPARTMENT
Murder Reference No.596 of 2006
Criminal Appeal No.175-J of 2007
(Bilal Arshad Vs. The State)
JUDGMENT
Date of hearing:
14.9.2011.
Appellant by:
Mr. Abid Hussain @ Abid Raza Shaheen, Advocate.
Complainant by:
-
Respondent/
State by:
Mr. Tariq Javaid, DDPP.
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.
M.R.No.596 of 2006
Crl.A.No.175-J of 2007.
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 u/s 544-A Cr.P.C. and in default
whereof to undergo S.I. for six months.
ii)
Ten years R.I. u/s 449 PPC with fine of Rs.50,000/- and
in default whereof to further undergo SI for three
months.
Ten years R.I. u/s 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.
Three years R.I. u/s 337-F(ii) PPC on two counts.
iii)
iv)
2
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 alongwith 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
M.R.No.596 of 2006
Crl.A.No.175-J of 2007.
3
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 Ali 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
M.R.No.596 of 2006
Crl.A.No.175-J of 2007.
4
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 alongwith 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 u/s 173 Cr.P.C.
4.
Trial concluded, resulted in pronouncement of
impugned judgment.
M.R.No.596 of 2006
Crl.A.No.175-J of 2007.
5.
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 11/2 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.
6
M.R.No.596 of 2006
Crl.A.No.175-J of 2007.
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.
Cr.P.C
Then the statement of the appellant under section 342
was
recorded
wherein
he
admitted
the
entire
incriminative prosecution evidence. He neither opted to appear
7
M.R.No.596 of 2006
Crl.A.No.175-J of 2007.
on oath as required u/s 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
M.R.No.596 of 2006
Crl.A.No.175-J of 2007.
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 u/s 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 u/s
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
M.R.No.596 of 2006
Crl.A.No.175-J of 2007.
9
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 u/s 342 Cr.P.C. while answering to the
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M.R.No.596 of 2006
Crl.A.No.175-J of 2007.
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
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M.R.No.596 of 2006
Crl.A.No.175-J of 2007.
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
u/s
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
M.R.No.596 of 2006
Crl.A.No.175-J of 2007.
12
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 u/s
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 u/s 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
M.R.No.596 of 2006
Crl.A.No.175-J of 2007.
13
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 u/s 324 PPC is
concerned, the same is reduced from 10 years R.I. to 05 years R.I.
14
M.R.No.596 of 2006
Crl.A.No.175-J of 2007.
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 11/2 months instead of three months. Likewise quantum of sentence
imposed u/s 337F(ii) PPC, is also reduced from three years R.I. to 11/2 year R.I. on two counts. As far as quantum of sentence imposed
u/s 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. 1-1/2 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.
(Ijaz Ahmed Chaudhry)
Chief Justice
(Mazhar Iqbal Sidhu)
Judge
Approved for reporting.
Javaid.S.
Judge.