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Petitioner: WAJAHAT IKRAM and anothers VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Nasir Aslam Zahid, Abdur Rehman Khan, Munawar Ahmed Mirza Title: WAJAHAT IKRAM and anothers vs THE STATE Case No.:Criminal Appeals Nos. 281, 282 and 283 of 1997Criminal Appeal No,281 of
JUDGMENT
Reported As: 1999 SCMR 1255 Result: Order accordingly Judgment JUDGMENT ABDUR REHMAN KHAN, J.---The above three matters pertain to the same judgment of the learned Judge of Lahore High Court delivered on 29th May, 1997; therefore, these are dealt with and disposed of through this judgment. 2. Wajahat Ikram and Sheryar (real name is Sheharyar) who are first cousins inter se were found guilty by the learned Additional Sessions Judge, Rawalpindi and on conviction under sections 324/34, P.P.C. And 337 F-(iii)/34, P.P.C., were sentenced as under:-- Name of the accusedSection of lawSentence Wajahat Ikram 324/34, P.P.C.(i) Arsh, equal, in amount to that fixed for Divat which has been assessed as Rs,1,83, 858 (Payable to the victim). (ii) 10 yearsR.I. 337/34-F (iii) (i) Daman equivalent to the amount of Rs,30,000 (payable to victim). (ii) 3 yearsR.I. 2.Sheryar 324/34, P.P.C.(i) Arsh equal in amount to that fixed for Divat which has been assessed as Rs,1,83, 858 (payable to victim). (ii) 10 yearsR.I.
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337/34-F (iii) (i) Daman equivalent to the amount of Rs,30,000 (payable to victim). (ii) 3 rearsR.I. 2. The convicts impugned their conviction, and sentence in the High Court through an appeal while the complainant filed a revision petition for the enhancement of the sentence, imposition of fine, directing the sentences to run consecutively and withdrawal of the concession allowed under section 382-B of the Cr.P.C. The High Court by the impugned judgment maintained the conviction and sentence not only against Wajahat Ikram imposed by the trial Court on both the counts but also directed him to pay fine of Rs,20,000 or in default to undergo 3 monthsR.I. The conviction of Sheharyar accused under both the sections was also maintained but his sentence under section 324/34, P.P.C. Was reduced from 10 years to 7 yearsR.I. And a fine of Rs,10,000 was additionally imposed upon him or for failure to pay it to suffer 3 monthsR.I. 3. In the above background Criminal Appeal No,281 of. 1997 has been filed by the convicts to reverse their conviction and sentence and to acquit them of the charges while the other two appeals have been moved by the complainant; one, against the reduction of the sentence in appeal by the High. Court and the other against the refusal of the High Court to accept in toto which was prayed for in revision for enhancement. 4. Aamir Fida Paracha (P. W.1) reported the murderous assault at his brother Anjum Farooq Paracha (P.W.3) and Zafar Ashfaq (P.W.2) to the police at 2-30 in the night which had occurred the same night at 1-30. It was stated in this report that he and his brother Anjum Farooq Paracha visited their ailing mother in Satellite Town and after staying with her till late in the night returned to their house in Rawalpindi in their car. It was 1-30 in the night that they parked their car in the garrage and started towards their house. They met P.W.2 Zafar Ashfaq with whom they exchanged greetings. In the meantime a motor cycle driven by Sheryar appellant while the appellant Wajahat. Ikram occupying its real seat (pillion) came there from behind. Sheharryar raised Lalkara that they are there to teach lesson to Anjum Farooq Paracha (P.W.3) for pursuing murder case. No sooner his brother turned towards them, Wajahat Ikram fired at him and a bullet hit him beneath the left chest while a bullet injured Ashfaq Zafar on the back of left thigh and he (informant) took shelter behind a corner of the wall. P.W. Abdul Mannan was also attracted to the spot on hearing the Lalkara raised by Sheharyar. On their hue and cry the two rode the motor-cycle and decamped. The incident took place at a distance of two yards from an electric pole and a bulb in the pole and the light in the adjacent houses had shed sufficient light on the spot. 5. Motive for the crime was stated to be causing injuries to the father of the complainant, Altaf Hussain and Muhammad Siddique by Ikramul Haque (father of Wajahat .Ikram) and others with fire-arm in November, 1991. The second reason for the crime was described to be the registration of a case under section 506, P.P.C. Against the accused by P.W. Anjum Farooq. Accused tried to overawe and pressurize Anjum Farooq so as to compel him to compromise these criminal cases with them. But on their failure, they resorted to this violent act. 6. The learned trial Judge based conviction on the following items of evidence and that was confirmed by the High Court in appeal:-- A. The F.I,R. Was lodged within an hour of the occurrence which can be termed as promptly lodged report and which eliminates possibility of deliberations and concoction. B. The evidence of the three eye-witnesses i.e, Aamir Fida Paracha (P.W.1), Anjum Farooq Paracha (P.W.3) and Ashfaq Zafar (P.W.2) and out of whom the latter two were injured, was consistent and believable. C. Motive for the crime was established. D. Medical evidence supported the occular evidence. E. Recovery of crime weapon at the behest of Wajahat Ikram from a graveyard is proved by the reliable deposition of the marginal witnesses. F. Expert opinion established that the five empties picked up
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from the spot and the lead recovered from the body of the injured matched the pistol recovered on the pointation of the accused Wajahat Ikram. G. Sheryar accused is vicariously liable under section 34, P.P.C. With his co-accused and the offence was committed in furtherance of common intention irrespective of the fact that he did not fire any shot. The High Court, however, thought it proper to reduce his punishment from 10 years to 7 years on account of his lesser role in the crime. 7. The learned counsel appearing for the convicts/appellants emphatically argued that the ocular account in the case was furnished by interested witnesses and that the learned Courts have legally erred in founding conviction on such evidence. This argument has invariably been advanced with such emphasis in many decided cases as if it is inflexible rule of universal application that in no case the testimony of an interested witness is to be believed. However, it is not so, every criminal case proceeds on its own facts and is to be decided on its own merits. It has repeatedly been laid down that it is the value of the evidence which is to be considered for rendering finding of guilt and that mere interestedness of a witness by itself would not be a criteria for discarding his evidence. The evidence of the two eye-witnesses P.W,1 and P.W.3 although interested but if judged on the above yardstick then the inherent quality of their testimony do qualify it to be adopted for conviction. As for the third eye-witness (P.W.2) he is neither related to the complainant side nor is inimical towards the accused, therefore, it is wrong to dub him as interested witness. Out of the three eye-witnesses P.W.2 and P.W.3 had admittedly received fire-arm injuries, therefore, there is no point to doubt their presence at the time of firing and as for the presence of the third eye-witness (P.W.1) he is a natural witness because his house is adjacent to the spot. It was next argued that if the two brother witnesses used to visit their mother every night then why not they were fired on some earlier occasion and similarly if the assailants were allegedly following the victims then why they were not fired elsewhere. It was clarified that if the accused had pre-planned the commission of the offence then why not they embushed themselves instead of firing at the P.Ws. In the open. It was submitted that how after all the accused knew about the arrival of the victims at that particular time. All these are imaginative and conjectural points and could only be posed to the accused for answer. It is not for the Court to find out as to why the accused did not act in a particular way at a certain time and if he had done it is the manner as suggested by the defence then he could not have been identified on the spot or the charge could not have been proved. Court is only required to determine the veracity of that which is brought against the accused in the evidence examined before it and not that the accused in the circumstances alleged against him could act in a different manner and, therefore, if he had acted in another way then the prosecution could not prove the charge against him. This would be indulging in guesswork which is not permissible under the law. Therefore, in the circumstances of the case it is to be seen whether the witnesses are truthful in their narration and whether their testimony finds support from other materials on record. There is no successful rebuttal of the prosecution evidence that the crime did not take place at the place as alleged by the eye- witnesses. The evidence of the complainant and the two injured eye-witnesses could not be discarded on this count. The recovery of five empties from the spot and the two bullet marks at point No,10, which is a wall of an adjacent house, further support it. Although there is no recovery of blood from the spot but that by itself would not disprove the venue of the crime because; firstly, in the intervening time between the injuries and the spot inspection the blood if had oozed from the injury it could not remain there because of the use of the road; and secondly, the incident occurred in October in which ordinarily warm clothes are worn and the blood might not have reached the road through soaking process. Thirdly, it is in the evidence that the injured were quickly taken from the spot and, thus, there was no chance for smearing of the road with the blood. It was next argued that the incident was deliberately belatedly reported to the police and this delay was for deliberation to substitute the accused for the real
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culprits. This argument would not prevail; firstly, because there appears no delay in reporting the occurrence as the firing took place at 1-30 and the F.I.R. Was lodged at 2-30 and this gap of one hour could be consumed in lifting the c injured, seating them in the car, taking them to the hospital and then contacting the Police for report. Secondly, it could not even remotely be suggested as to who could be the real assailant and as no other enmity of the accused with some other person could be proved nor it could be shown as to what prompted the complainant to spare the actual attacker and instead involved the appellants. In this context it was emphasized that the police station was adjacent to the spot and the matter could be reported there much earlier but this argument conveniently overlooks the fact that it would have been top priority for the reporter to take first the injured to the hospital for treatment and then to report the occurrence as it needs no explanation that saving life of the related injured P.W. Was more essential than worrying at that tense moment for the subsequent objections of delayed report and its effect. It is interesting to note that at one stage the learned counsel submitted that the report could not be lodged as promptly as had been done and he rather tried to describe the report as too prompt. Because the complainant indulged in writing the report instead of attending to his injured brother. It was next argued that it was a night occurrence and the identification of culprit was impossible. This appears to be a routine argument which does not take into consideration the reliable evidence on record in shape of the light and recovery of bulb from the spot. The recovery of pistol at the behest of Wajahat Ikram was also doubted as according to learned counsel the appellant had a licensed pistol which he could use in the commission of the offence and as such there were no sense either to use or to produce unlicensed pistol. It is a matter of common knowledge that accused prefer to use unlicensed weapon for commission of the offence as there are remote possibility of locating such weapon by the police than the licensed weapon. Both the High Court and the trial Court have discussed the recovery and have believed it on the basis of the testimony of independent person Ateeq Shehzad (P.W.4) and the Investigating Officer (P.W.9) and the three Police Constables who were examined as C.W.1, C.W.2 and C.W.3. The recovery of empties from the spot and the lead from the body of Anjum Farooq Paracha and its matching with the alleged recovered crime weapon was also doubted. It was also objected that they were sent with sufficient delay to the arms expert and, therefore, his report could not be relied. The trial Court has dealt with these objections in this manner: "Though, it was objected by the learned counsel for the defence that as to why the Investigating Officer did not take into possession the empties during the night when he had come to the place of occurrence, just after the occurrence (the police station being adjacent to the place of occurrence), but the evidence shows that no case had been registered till that time and no one had told him about the presence of any empties at the spot at that time, neither it was got clarified that as to whether any eye-witness was present on the spot at that time or not". The High Court in para. 17 of its judgment has commented on this aspect of the case which is reproduced: "Learned counsel for the appellant contended that the crime empties are stated to be sent to the Forensic Science/Laboratorty promptly but a pellet recovered from the body of Anjum Farooq was not sent to the Laboratory till the recovery of the pistol (P6). It was, therefore, claimed that this was the clear violation of the instructions and cast a doubt on the prosecution. In this respect, he also relied upon Muhammad Shafi and others v. The State (PLD 1968 Lah. 869) wherein the crime empties were sent after nine daysdelay to the Forensic Science Laboratory the Court had held that no value should be attached to the such recovery of crime empties. Similarly view was taken in Bashir Ahmad v. The State (PLD 1987 Lah. 505). In the instant case, however, it is on the record that the pellet (P11) recovered from the body of Farooq Anjum was handed over to the police on the 12th October, 1994, in a sealed bottle under certificate Exh.PJ The same was taken back after one or two days to Dr. Raja Muhammad Yusaf (P.W.10) by S.H.O. For re-fixing the official stamps on the bottle. After re-fixing of the official stamp on the bottle, the pellet P.11 was sent to the Forensic Science
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Laboratory. Although there appears no justification for withholding these articles in the Malkhana even for a few days after recovery thereof, but the overall evidence produced by the prosecution does link the accused with the crime they had been charged'. I find no defect in this analysis and appreciation of the evidence by the two Courts and the objection of the learned counsel on this count would not prevail." It was also argued that the medical officer who examined P.W. Ashfaq Zafar could not appear as P.W., and therefore, the position of one of the two injures which was described as "Bruise" could not be ascertained. It was all along the case of the prosecution at the trial that both the injured witnesses received injuries with pistol shots fired by Wajahat Ikram accused and the medical reports have verified this fact. The appellants could not discredit these reports nor they challenged the nature of the injuries being fire-arm rather their plea was that some unidentified assailant had caused these fire-arm injuries and instead they have been falsely involved in the case. It was in this context pointed out that in the F.I.R. Ashfaq Zafar was alleged to have been hit with only one bullet but in his medical report it is shown that he had received two injuries. It is to be noted that just after the F.I.R. The injury statement of the P.W. Was prepared by the Investigating Officer in which two wounds have been shown. The existence of two injuries on the person of the witnesses stand established from the said document as well as from the Court statement of P.W. Ashfaq Zafar and the other two eye-witnesses. It was stressed that P.W. Ashfaq Zafar was not an independent witness as he was under the obligation of P.W. Anjum Farooq who being activist of PPP had nominated him as a Member of Zakat and Ushr Committee. This argument has no force as firstly, it could not be established from any independent source that it had so happened and secondly, the stand of the defence on this count is inconsistent because it was suggested to Ashfaq Zafar that this nomination was for membership while the suggestion to P.W. Anjum Farooq Paracha was that it was for Chairmanship. Thirdly, even if what was suggested was true that was after the present occurrence when Ash faq Zafar having sustained fire-arm injuries had already charged the accused. The learned counsel was critical as to how Anjum Farooq Paracha could compromise the case of other with whom he had no relations and submitted that the motive alleged by the defence to the extent that the accused were annoyed with him for his refusal to compromise the case was false. It appears that the learned counsel is oblivious of the fact that the record indicates that Anjum Farooq Paracha besides being the complainant in the case was most active in prosecuting those cases and, therefore, it appeared that the relation of the victim of these cases did not agree to compromise the cases without his consent. The learned counsel referred to application Exhs. PG and PH drafted by the Investigating Officer, requesting the Medical Officer to apprise him to his opinion if the two injured witnesses were fit enough to give statement and argued that these two applications did not contain number of the F.I.R. Nor section of law under which it was registered and as such F.I.R. Was lodged much after the preliminary investigation had been conducted and such an F.I.R. Had lost sanctity and was a doubtful document. It is a very far- fetched and inconsequential argument as it could not be explained as to how mere omission of F.I.R. Number and section of law in these documents would leave to the consequence as argued. It is obvious that the two witnesses were not injured in any other incident and naturally their statements to be recorded in respect of the injuries suffered by them in the only incident that had occurred at the relevant time. Thus, neither anything turns on it nor any adverse inference can be drawn against the prosecution on this count. It was argued that the presence of accused Sheryar on the site could not be established because the motor-cycle allegedly driven by him to the spot had not been recovered. It is not understandable how non-recovery of the motor-cycle could be a proof for his absence when otherwise his presence stood established by confidence inspiring evidence.
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8. The learned counsel while arguing the legality of the conviction and sentence under section 324, P.P.C. Submitted that under the law which was operative at the time of commission of the offence an accused could not be punished under the first part of section 324, P.P.C. But he could be covicted only under the second portion of the section for the hurt caused. He elaborated that the occurrence occurred on 11-10-1994 while the amendment through Criminal Law (3rd Amendment) Ordinance, 1994 was enforced on 25-11-1994 and he referred to Shahbaz Ahmad and others v. The State (PLD 1994 Lahore 344), Arshad v. The State and another (1996 SCMR 1270) and sections 334 and 336-N, P.P.C. He also submitted that payment of Arsh could be ordered only to one of the accused and not to both of them as it is imposed in lieu of Qisas which could be extracted only once. The learned counsel also referred to Bhai Khan and others v. The State (PLD 1992 Supreme Court 14) and Attaullah and others v. The State (PLD 1990 Peshawar 10) to support his view-point. On the other hand the learned counsel for the complainant contended that the appellants having been found guilty under section 324, P.P.C. For firing and for causing injuries by Wajahat to Anjum Paracha of the nature of Itlaf-i-Salahiyyat-i-Udw were liable to Oisas so that the principle of equality as envisaged in Islam could have been fulfilled. It this context he was of the view that if injuries of the kind caused to this P.W. Could not be inflicted on the accused then through modern scientific device the disability the injuries have brought about over the person of P.W. Anjum Farooq Paracha, the accused should be made to suffer the same disability. He clarified that admittedly on the receipt of the injuries spinal card of Anjum Farooq P.W. Was damaged and, thus, he is unable to move his leg and his lower portion has become senseless, which has permanently affected the functioning, power and competency of that part of the body. It was, therefore, argued that the principle of equality demands .That the same disability should be caused to the appellants. He next submitted that the appellants were liable to be punished to ten years under first part of section 324, P.P.C. And also under the second part of this section for having caused injuries of Itlaf-i- Salahiyyat-i-Udw which is punishable under section 336, P.P.C. He further submitted that although the penalty of Arsh has been imposed on them but having regard to the second part of section 324, and section 336 read with section 337-N, P.P.C. They were liable to imprisonment as Tazeer. It was also argued that as two persons had been injured, therefore, the sentence should have been ordered to run consecutively and that the accused being hardened and desperate persons should not have been extended the benefit of section 382-B, Cr.P.C.: In order to properly appreciate the respective submissions of the learned counsel for the parties it would be proper to reproduce the old section 307, P.P.C., the original section 324, P.P.C. And the amended section 324 and section 326, "307. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender, shall be liable either to imprisonment for life, or to such punishment as is hereinabefore mentioned. When any person offending under this section is under sentence of transportation for life or imprisonment for life he may, if hurt is caused, be punished with death." "324. Whoever, except in the case provided for by section 334 voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both."
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Amended section 324.--Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused Qatl, he would be guilty of Qatl-i-Amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall be liable to the punishment provided for the hurt caused: Provided that, where the punishment for the hurt is Qisas which is not executable, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to seven years," "Section 326. Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both." 9. It is, thus, to be seen that under section 307, P.P.C. The penalty for ineffective firing was 10 years plus fine and if by the act hurt was caused then the offender was liable either to imprisonment for life or to such imprisonment as hereinbefore mentioned. So, in case of hurt the offence was aggravated and the sentence was, therefore, enhanced. Section 324, P.P.C. As it stood before the amendment was interpreted by some Court to mean that if the act as contemplated in the section has not resulted into hurt then the offender would be liable to 10 years and if hurt had been…
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