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Petitioner: BASHIR AHMAD VS Respondent: THE STATEHonorable Justice TASSADUQ HUSSAIN JILANICh. Muhammad Ayyub,S.D. Qureshi
2002 Y L R 652
2002 Y L R 652
[Lahore]
Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ
BASHIR AHMAD---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No. 250-J of 2000, heard on 7th March, 2002.
(a) Penal Code (XLV of 1860)---
----Ss.302/324/34---Appreciation of evidence---Broad daylight occurrence in District Courts compound---Accused and co-accused were specially named in promptly lodged F.I.R. and a definite role was assigned to them--B oth eye-witnesses had explained their presence at the spot and presence of one of the prosecution witnesses stood corroborated by medical evidence as well as by four fire-arm injuries received by him Both prosecution witnesses were subjected to lengthy cross-examination but their credibility could nest be tarnished and they remained consistent on all material particulars of occurrence and role attributed to accused---Both eye-witnesses were though close related to the deceased, but that by its, would not make them unworthy of credit-- presence of those factors, infirmity, if any, evidence of recovery of pistol, would not fatal for prosecution case---Contention that since complainant and accused had previous enmity, possibility of false implication cot, not be ruled out, was repelled as it was repellant to common sense and against normal human conduct to let off murder, and implicate accused falsely---No serious enmity existed between prosecution witness and accused---Accused remained fugitive from law for about 6 years which abscondence remained unexplained which could be considered to be a corroborative piece of evidence ---Prosecution, in circumstances, had proved its case beyond reasonable doubt sustain conviction of accused on a capital charge.
Muhammad Mansha v. The State 2001 SCMR 199; PLD 1962 Dacca 269; PLD 1969 SC 488; PLD 1960 SC 387 and 1985 SCMR 203 ref.
(b) Criminal trial---
----Appreciation of evidence---Requirement independent corroboration in criminal ca was not an inflexible role---Intrinsic worth testimony of a witness would always weigh with Court while assessing evidence ---Prompt F.I.R., time anti place of occurrence, strong motive, statements during trial being consistent, presence of witnesses being natural and medical evidence endorsing presence of prosecution witness, were factors which would go a long way in establishing credibility of prosecution witnesses.
(c) Criminal trial---
---- Appreciation of evidence---Unexplained abscondence of accused---Unexplained abscondence had always been considered to be a corroborative piece of evidence.
Mst. Roheeda v. Khan Bahadur and -another 1992 SCMR 1036 ref.
Ch. Muhammad Ayyub for Appellant.
S.D. Qureshi for the State.
Date of hearing: 27th March, 2002.
JUDGMENT
TASSADUQ HUSSAIN JILANI, J.---- Appellant Bashir Ahmad son of Muhammad Sharif was tried by the learned Special Court Narowal constituted under the Suppression of terrorist Activities (Special Courts) Act, 1975 ( in case registered vide F.I.R. No.20 of 1993 dated 8-2-1993 under sections 302/324/34, P.P.C., Police Station City Narowal) for the murder of Salamat Ali and for launching murderous assault upon Muhammad Ahmad complainant (P.W.3). Vide judgment dated 30-10-2000 the learned trial Court convicted the appellant under section 302-B, P.P.C. and sentenced him to death with a direction to pay Rupees one lac to the legal heirs of the deceased as' compensation under section 544-A, Cr.P.C. in default whereof he was further directed to undergo six months, R.I. While convicting him under section 324, P.P.C. for the murderous assault on Muhammad Ahmad (P.W.3), the appellant was sentenced to ten years, R.I. with a fine of Rs.10,000 in default whereof to further undergo R.I. for one month with benefit of section 382-B, Cr.P.C.
2. The Prosecution story as given in the F.I.R. (Exh.P.2) registered by Shamim Haider on 8-2-1993 the complain (Exh. P. A) based on the statement Muhammad Ahmad (P.W.3) recorded Muhammad Arif (P.W.8) briefly stated is that on 8-2-1993 the complainant alongwith father had gone to District Courts Narowal connection with bail application before learned District and Sessions Judge and they were sitting in the chamber of Syed Tahir Hussain Naqvi, Advocate, Bas Ahmad appellant armed with a .30 bore pistol and Muhammad Ashraf co-accused am with kalashinkove reached there and resorted to indiscriminate firing with their respect weapons. Salamat Ali succumbed to injuries at the spot and died whereas complainant received several injuries. The motive alleged is that the complainant, Bashir Ahmad appellant had previous enmity that they had murdered complainant's brother Sabir Ali and were fugitive to law in the said case.
3. Muhammad Ashraf co-accused killed in a police encounter whereas Bashir Ahmad appellant remained fugitive to law was arrested in connection with some of case by Hasilpur Police and on 7-11-1998 P.W.11 Riaz, A.S.I. arrested him in the instant case. On his pointation a .30 bore pistol (P.6) was recovered and after due investigation the case was sent up for trial.
4. During trial the prosecution examined eleven witnesses including the doctor and the Investigating Officer. The medical evidence in the instant case was furnished by Dr. Saadat Ali (P.W.5) who found the following injuries on the person of Salamat Ali deceased:--
1. A circular wound' 1 x 1 c.m. edges blackened on right side of head above the ear underlying fracture of bone was evident by crepitus and collection of blood.
2. A lacerated wound 5 x 2 c.m. on left side of head left pinna of ear also injured from midline.
Death, according to him, was in consequence bleeding on account of injuries Nos. 1 and 2 which were sufficient in the ordinary course nature to prove fatal. P.W.1 is Ashraf Shahzad who is a witness of recovery of pistol (P.6) from a graveyard. P.W.2 is pervaiz Iqbal who is the witness of the identification of the dead body. P.W.3 is the complainant and eye-witnesses. He made statement consistent with the version given in F. I. R.
5. Dr. Saadat Ali also medically examined Muhammad Ahmad (injured) and found following injuries on his person:--
1. A circular lacerated wound 1 x 1 c.m. on front of right shoulder depth not probed.
2. A lacerated wound 1 x 1 c.m. on ulnar side of forearm left at level of 3 c.m. above the wrist (entry).
3. A lacerated wound 3 x 4 c.m. at the level of injury No.2 to the radial side of left forearm representing the exit wound.
4. A circular lacerated wound 1 x 1 c.m. on back of chest (rt) side 4 c.m. from the midline of the body and at upper most part of chest.
P.W.1 is Ashraf Shahzad who is a ness of the recovery of pistol (P.6) from graveyard P.W.2 is Pervez Iqbal who is ness of the identification of the dead body. P.W.3 is the complainant and an eye-witness. He made statement consistent with the version given in the F.I.R. P.W.4 is Zulfiqar Ali. He too is a police official and is also a witness of the recovery of pistol (P.6) and two live cartridges. P.W.6 Sharafat Ali is another witness and he is the real brother of the deceased Liaqat Ali, H.C. is P.W.7 who way handed over warrants of arrest of Bashir Ahmad appellant pursuant to which he went to the litter's house but could not find him He reported the matter to the learner Magistrate whereafter proclamation of his absconsion was issued which is Exh.P.K which he took to the house of the accused/appellant and having remained unsuccessful in affecting arrest, he mad necessary report to the said Magistrate whir: is Exh.P.K/1 P.W.9 is Muhammad Mansha who is also a witness of the identification o the dead body P.W.10 is Zia-ul-Hassan who prepared the site plan (Exh.P.M and Exh.P.M./1).
6. The accused when examined undo section 342, Cr.P.C. denied the prosecution story and attributed false implication to enmity of the complainant with Muhammad Ashraf co-accused. According to the appellant he was domestic servant of Muhammad Ashraf, therefore, he was falsely implicated in the case.
7. Learned Defence Counsel, in support of the appeal, submitted that the appellant had been falsely implicated that no independent witness was produced in support of the prosecution case although the occurrence allegedly took place in the District Courts, compound in a broad daylight, that evidence of P.W.3 and P.W.6 cannot be relied upon as they are not only related to the deceased but interested and inimical and had reasons to falsely implicate the appellant. He added that the interested witnesses could only be worthy of consideration if their testimony had been corroborated by some independent circumstance which, in the instant case, is lacking.
Learned counsel for the State, on the other hand, defended the impugned judgment by submitting that the prosecution case consists of witnesses who have explained their presence at the spot, that the presence of P.W.3 is corroborated by the medical evidence as he received fire-arm injuries during the occurrence, that the appellant had a strong motive to kill the deceased; that although the applicant had previous enmity and litigation with the complainant party but that by itself would not be sufficient to disbelieve the complainant and there was no earthy reason for the latter to substitute the real culprit with the appellant.
9. Heard.
10. It was abroad daylight occurrence and that look in the District Courts compound. The F.I.R. was lodged within forty-five minutes of the occurrence in which the appellant and the co-accused were specifically named and a definite role was assigned to them. Both the eye-witnesses, namely, P.W.3 Muhammad Ahmad and P.W.6 Sharafat Ali have explained their presence at the spot. The presence of P.W.3 stands corroborated by tire medical evidence as well as he received as many as four fire arm injuries. Both these witnesses were subject to lengthy cross-examination but their credibility could not be furnished and they remained consistent on all material particulars of the occurrence and the role attributed to the appellant. Both P. Ws. 3 and 6 have categorically stated that Salamat Ali died on account of the firing of the appellant. Although both the eye-witnesses are closely related to the deceased i.e. P.W.3 is son of the deceased while P.W.6 is his brother yet that by itself would not make them unworthy of credit. The requirement of independent corroboration in criminal law is not and in flexible rule. It is always the intrinsic worth of the testimony of a witness which weigh with the Court while' assessing the evidence The prompt F.I.R., the time and place of occurrence, the strong motive, the statement during trial being consistent, the presence of witnesses being natural and the medic evidence endorsing presence of P.W.3, are factors which go along in establishing the credibility of the prosecution witnesses. In the presence of these factors the infirmity, any, in the evidence of recovery of pistol (P.6) would not be fatal for the prosecution case. The argument of the learned defence counsel that since the complainant and the appellant and previous enmity, therefore; the possibility of false implication cannot be rule out, is not tenable as it is repellent to common sense and against normal, human conduct to let off the murders and implicate the appellant falsely. In Muhammad Mansha v. The Stats (2000 SCMR 199), the august Supreme Cow upheld the conviction based on interested ocular account as their testimony inspire confidence and held, at page 207, as under:-
"We may further point out that there is no rule of law that the statement of an interested witness cannot be taken into consideration without corroboration and uncorroborated version can be relied it context with other circumstances of a particular case. In this regard we fortified by the following authorities:
PLD 1962 Dacca 269, PLD 1965 SC 488, PLD 1960 SC 387 and 1995 SCMR 203.
The record of the case is silent that there was any serious enmity in between Mst. Razia (P.W.1) and that of appellant. It is indicative from record that mother and husband of Mst. Razia (P.W.1) were killed in a merciless manner and in such an eventually substitution of real culprit with that of Muhammad Mansha (appellant) is hardly believable rather impossible."
11. There is yet another circumstance which is corroborative of the evidence led and it is the evidence of absconsion of the appellant. He remained fugitive to law from 8-2-1993 to 6-11-1998 when he was arrested. Unexplained absconsion has always been considered to be a corroborative piece of evidence. In Mst. Roheela v. Khan Bahadur and another (1992 SCMR 1036) the august Supreme Court observed, at page 1042, as under:--
"No doubt abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroboration evidence of the other direct and circumstantial evidence in the cage. In the instant case, the accused/respondent No.1 Jahanzeb accused (since murdered) and their brother Aurangzeb remained fugitive from justice for a very long time without any plausible and reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case."
12. For what has been discussed above we are of the considered view that the prosecution has proved its case beyond reasonable doubt to sustain conviction on a capital charge. The appeal having no merit, is, therefore, dismissed.
Death sentence confirmed.
H.B.T./B-86/L Appeal dismissed.