Full Judgment Text & Judicial Ruling

2017 Y L R Note 331 [Lahore] Before Abdul Sami Khan and James Joseph, JJ MAZHAR and another---Appellants Versus The STATE---Respondent Criminal Appeals Nos.1097, 1194, Criminal Revision No.713 and Murder Reference No.547 of 2006, heard on 23rd April, 2015. (a) Penal Code (XLV of 1860)--- ----Ss. 302 (b), 324, 337-F(iii), 337-F(vi), 337-D, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, ghayr-jaifah munaqqilah, jaifah, rioting armed with deadly weapon and unlawful assembly---Appreciation of evidence---Sentence, reduction in---Delay of one hour in reporting the matter to the police was natural and same was not fatal to the case of prosecution---No conscionable time was consumed by the complainant to consult or deliberate over the matter rather same was reported with sufficient promptitude---No extraneous delay had been occurred in lodging the FIR---Accused was named in the FIR having specific role---Role attributed to the accused had been supported from postmortem report and medico legal certificates---Ocular account had been furnished by eye-witnesses---Injuries on the persons of injured witnesses confirmed their presence at the spot at the time of occurrence---Occurrence was daylight and there was no chance of mistake to identify the accused at the time of occurrence---No blood feud or enmity existed between the complainant as well as injured prosecution witnesses and accused---Prosecution witnesses were consistent qua the role attributed to the accused in the commission of offence---Only accused side was armed with weapons at the time and place of occurrence---Defence had failed to bring on record any ulterior motive of the complainant or the injured witnesses to falsely implicate the accused in the present case---Testimonies of eye-witnesses being trustworthy and confidence inspiring were sufficient to connect the accused with the commission of offence---Medical evidence was in line with the ocular account of the prosecution case---Recovery of weapon of offence would be inconsequential and same could not be used in support of prosecution evidence without any positive report of the Forensic Science Laboratory---Recovery of weapon of offence was merely a corroborative piece of evidence---Non-recovery of weapon of offence did not have any adverse effect upon the case of prosecution---Court had to keep in mind all the facts and circumstances of the case while deciding guilt or innocence of the accused---Prosecution could not prove motive part of its case---When prosecution had set up a specific motive in the FIR then it was bound to prove the same through reliable and confidence inspiring evidence---No recovery of weapon of offence was effected from the accused, however prosecution had brought on record sufficient incriminating material against the accused---Non-proving of motive could be taken as a mitigating circumstance in favour of accused---Accused had inflicted single firearm injury on the deceased and despite having opportunity he had not repeated the same---Such fact could also be taken as an extenuating/ mitigating circumstance to avoid extreme penalty of death---Lesser sentence of imprisonment for life would serve the interests of justice well in circumstances---Accused was entitled for the benefit of each extenuating circumstance while deciding question of sentence---Death sentence awarded to the accused under S. 302(b), P.P.C. was converted into imprisonment for life and remaining sentences to the said accused were maintained---Appeal was dismissed with the modification of quantum of sentence to the accused. [Paras. 11, 12, 13, 14, 16, 17, 18, 19, 20 & 21 of the judgment] Muhammad Aslam v. The State 2012 SCMR 593; Muhammad Nisar v. The State 2006 SCMR 161; Hasil Khan v. The State 2012 SCMR 1936; Qurban Ali v. Sheroo Machi and another 1991 SCMR 2339; Muhammad Arshad and 2 others v. State PLD 1996 SC 122; Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660; Sharafat Ali Khan v. The State 2010 SCMR 1205 and Haji Muhammad Sadiq v. Liaquat Ali and others 2014 SCMR 1034 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302 (b), 324, 337-F(iii), 337-F(vi), 337-D, 148 & 149---Criminal Procedure Code (V of 1898), S. 417 (2-A)---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, ghayr-jaifah munaqqilah, jaifah, rioting armed with deadly weapon and unlawful assembly---Appeal against acquittal---Reappraisal of evidence---Accused were empty handed at the spot at the time of occurrence---No injury on the person of injured had been attributed to the accused---Occurrence was not a premeditated one and took place at the spur of moment---Accused had no common intention with the main accused---Accused could not be made vicariously liable for the act of their co-accused---Presumption of double innocence was attached to the accused in case of acquittal by the Trial Court---Order of acquittal could only be interfered with when same was found to be capricious, perverse or arbitrary in nature---Appeal was dismissed in circumstances. [Para. 22 of the judgment] Inayat Ullah Butt v. Muhammad Javed and others PLD 2003 SC 562 rel. (c) Criminal trial--- ----Presumption of double innocence would be attached to the accused in case of acquittal. [Para. 22 of the judgment] (d) Criminal trial--- ----Recovery of weapon of offence would be inconsequential and same could not be used in support of prosecution evidence without any positive report of the Forensic Science Laboratory. [Para. 16 of the judgment] (e) Criminal trial--- ----'Interested witness' is one who is interested in conviction of accused for some ulterior motive. [Para. 13 of the judgment] Muhammad Inayat Ullah Cheema for Appellants. Khurram Khan, Deputy Prosecutor General for the State. Khawaja Haris Ahmad for the Complainant. Date of hearing: 23rd April, 2015. JUDGMENT ABDUL SAMI KHAN, J.---Mazhar and Zafar appellants along with Haji Sultan and Javed Iqbal (acquitted co-accused) were tried in case FIR No.115/2004, dated 11.05.2004, under sections 302, 324, 337-F (iii ), 337-F(vi), 337-D, 148, 149, P.P.C., Police Station Barana, Tehsil Chiniot, by the Additional Sessions Judge, Chiniot, who, vide judgment dated 23.06.2006, convicted and sentenced Mazhar and Zafar appellants as under:- Mazhar appellant:-  Under section 302(b), P.P.C to death as Ta'zir with direction to pay a sum of Rs.100,000/- to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. and in case of default thereof, he shall further undergo S.I. for six months.  Under section 324, P.P.C. to undergo 10-years R.I. along with fine of Rs.50,000/- and in case of default thereof, to further undergo S.I. for three months.  Under section 337-F(vi), P.P.C. to undergo 07-years R.I. with direction to pay Daman of Rs.30,000/- to the injured.  Under section 337-F(iii), P.P.C. to undergo 03-years R.I. with direction to pay Daman of Rs.20,000/- to the injured.  The sentences of imprisonment awarded to Mazhar appellant were ordered to run concurrently and the benefit of Section 382-B Cr.P.C. was also extended in his favour. Zafar appellant:--  Under section 324, P.P.C. to undergo 10-years R.I. along with fine of Rs.50,000/- and in case of default thereof, to further undergo S.I. for three months.  Under section 337-D, P.P.C. to pay Arsh of Rs.100,000/- to the injured.  The benefit of Section 382-B Cr.P.C. was extended to Zafar appellant and his sentences were ordered to run concurrently. However, Haji Sultan and Javed Iqbal accused were acquitted of the charge by the learned trial court through the same judgment while extending benefit of doubt to them. 2. Mazhar and Zafar appellants have filed Criminal Appeal No. 1097 of 2006 against their conviction and sentences, whereas learned trial Court has submitted Reference under Section 374 Cr.P.C. for confirmation or otherwise of the death penalty awarded to Mazhar appellant, which has been numbered as Murder Reference No. 547 of 2006. The complainant has also filed Criminal Appeal No.1194 of 2006 against the acquittal of Haji Sultan and Javed Iqbal respondents and Criminal Revision No.713 of 2006 for enhancement of the sentences awarded to Zafar respondent. As all these matters have arisen out of one and the same judgment dated 23.06.2006, passed by learned Additional Sessions Judge, Chiniot; therefore, we propose to decide the same together through this single judgment. 3. According to the narration of complainant unfolded in FIR No.115/ 2004, dated 11.05.2004, registered for the offences under sections 302, 324, 337-F(iii), 337-F(vi), 337-D, 148, 149, P.P.C., at Police Station Barana, on the day of occurrence at about 08 a.m. he along with his father Shahadat and uncle Falaksher were irrigating their land through electric motor in the area of colony Sabu Wala and were present near electric motor. In the meantime, Azhar accused armed with pistol, Zafar armed with pistol, Mazhar armed with rifle, Haji Sultan empty handed along with one unknown accused armed with 12 bore gun came there. Haji Sultan raised lalkara to teach a lesson to Shahadat and Falaksher, father and uncle of the complainant, for not giving them their turn of water, upon which Azhar accused made two fire shots with his pistol .30 bore on Falaksher, hitting him on right and left side of his chest and he fell down. Then accused Mazhar fired with his rifle on Shahadat Khan, hitting him on left side of his chest, who also fell down. On hearing the noise of firing, Mallah Khan and Tahir Abbas, uncle and brother of the complainant, who were present in the adjoining cattle-shed reached there and on seeing them, Zafar accused fired two shots with his pistol, which hit around umbilicus of Tahir Abbas and he fell down. Then Mazhar accused made two fire shots with his rifle, which hit left arm and right thigh of Mallah Khan and he also fell down. On hearing hue and cry of the complainant and noise of firing, Amjad and Barkhurdar PWs reached there, witnessed the occurrence and on seeing them the accused ran away from the place of occurrence after making aerial firing. Shahadat and Falaksher succumbed to the injuries at the spot, while Tahir Abbas and Mallah Khan were shifted to hospital in injured condition for their medical treatment. The motive behind the occurrence was that the accused as well as the complainant party were irrigating their land through joint electric motor. The turn of the accused was over, but they wanted to irrigate their land on the turn of complainant side. Shahadat and Falaksher forbade them from doing so, for which the accused nourished grudge in their mind, murdered Shahadat and Falaksher and injured Mallah and Tahir Abbas in furtherance of their common object. 4. After registration of FIR, investigation of the case was conducted by Noor Muhammad ASI and Allah Ditta Khan SI and after completion of investigation, report under section 173, Cr.P.C. was submitted against the appellants and their co-accused. It is pertinent to mention here that Azhar accused could not be arrested by the investigating officer during investigation and was declared proclaimed offender. At the commencement of trial, the learned trial Court after observing legal formalities as required by the Code of Criminal Procedure, 1898, framed charge against the accused to which they pleaded not guilty and claimed trial. 5. During trial, the prosecution produced fifteen witnesses before the learned trial Court to prove its case. Ocular account was furnished by Umar Farooq complainant (PW-2), Tahir Abbas injured (PW-3) and Mallah Khan injured (PW-4). Allah Ditta Khan SI (PW-12) and Noor Muhammad A SI (PW-13) are the investigating officers of this case. They testified about the investigation conducted by them. Medical evidence was furnished by Dr. Muhammad Shafi (PW-5), Dr. Munir Ahmad (PW-6), Dr. Majeed Kamal (PW-14) and Dr. Muhammad Suhail Amer (PW-15). Dr.Muhammad Shafi (PW-5) medically examined Tahir Abbas injured (PW-3) and Mallah Khan injured (PW-4), Dr. Munir Ahmad (PW-6) conducted postmortem examination on the dead bodies of Shahadat and Falaksher deceased, Dr. Majeed Kamal (PW-14) conducted operation of Mallah Khan injured (PW-4), while Dr. Muhammad Suhail Amer (PW-15) conducted operation of Tahir Abbas injured (PW-3). Dost Muhammad Patwari (PW-1) prepared site plan of the occurrence (Ex.PA), Ijaz Ahmad (PW-9) is scribe of FIR (Ex.PB/1), Ghulam Abbas (PW-10) is the recovery witness, while the remaining witnesses are more or less formal in nature. After placing on record the reports of Chemical Examiner (Ex.PQ and Ex.PR), the reports of Serologist (Ex.PS and Ex.PT) and the report of Forensic Science Laboratory (Ex.PU), the prosecution closed its evidence. 6. In their statements recorded under section 342, Cr.P.C. the accused denied and controverted all the allegations leveled against them by the prosecution and professed their innocence. However, neither the appellants nor the acquitted accused opted to make statements on oath under section 340(2), Cr.P.C. and they also did not produce any witness in their defence. 7. Upon conclusion of the trial, the learned trial court after finding the prosecution's case against Mazhar and Zafar appellants to have been proved beyond reasonable doubt, convicted and sentenced them as mentioned and detailed in paragraph No.1 of this judgment, whereas co-accused Haji Sultan and Javed Iqbal were acquitted by giving them the benefit of doubt. Hence, these appeals, revision and murder reference before this Court. 8. Learned counsel for the appellants contends that the impugned judgment is against law, facts and circumstances of the case; the appellants are innocent and they have been falsely involved in this case by the complainant on the basis of ulterior motives and mala fide intention; it was an antie time FIR, not recorded at the time mentioned therein, the same was lodged after preliminary inquiry, consultation and due deliberation; Umar Farooq complainant was not present at the spot at the time of occurrence, whereas the injured PWs attracted to the place of occurrence on hearing the noise of firing, so they had also not witnessed as to whose fire hit the deceased persons. Learned counsel adds that as a matter of fact, it was a case of sudden fight, the place of occurrence was admittedly under the exclusive possession of the accused, it was the complainant party who attacked on the accused and during cross firing, the deceased as well as the injured persons sustained injuries at the hands of their own companions. Even otherwise, the alleged eye-witnesses are related inter se as well as to the deceased persons and they are also inimical towards the appellants, so their testimony is not above-board; they have made dishonest improvements to naturalize their presence at the spot which speaks volume of falsity on their part; there are glaring contradictions between the statements of complainant and injured PWs, which also make them false witnesses; the recoveries were planted on the appellants only to strengthen the prosecution case and even otherwise, the same have been effected in violation of section 103, Cr.P.C.; the motive as set up by the complainant in the FIR also remained unproved during trial; the prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. Learned counsel prays for clean acquittal of the appellants. 9. On the contrary, learned Deputy Prosecutor General assisted by learned counsel for the complainant contends that the matter was reported to the police with sufficient promptitude and there was no element of consultations and deliberations; the occurrence was reported to the police in a manner as it happened; the postmortem examination on the dead bodies of the deceased persons as well as the medical examination of injured PWs was conducted by the doctors within shortest possible time, which also rules out any possibility of concocting false story of the occurrence; the appellants are duly named in promptly lodged FIR and specific roles have been attributed to them therein; the roles attributed to the appellants by the complainant and the injured PWs are also borne out from the postmortem reports of the deceased persons as well as the medico legal certificates of injured PWs; relation with the deceased or inter se is no ground to disbelieve confidence inspiring evidence of the prosecution witnesses; the presence of the appellants and the injured PWs at the spot is admitted, while the defence could not shatter the presence of complainant despite conducting lengthy cross-examination on him; the prosecution witnesses are consistent on each and every material point, case of the prosecution is duly corroborated by the recovery of weapons of offence from the appellants, while the medical evidence is also in line with the ocular account. During trial, the complainant and the injured PWs remained unison regarding motive part of prosecution's case, so the motive also stood proved against the appellants. Learned counsel for the complainant adds that the prosecution has successfully proved its case, but while awarding lesser sentence to Zafar appellant, the learned trial Court has committed material irregularities and illegalities and it failed to dispense with criminal justice in accordance with law; similarly, Haji Sultan and Javed Iqbal accused were vicariously liable for the acts of their co-accused, but learned trial Court has committed serious mistake while acquitting them, so to this extent, the judgment of the learned trial Court requires reappraisal of evidence, hence, while praying to maintain conviction and sentences of Mazhar appellant, learned counsel for the complainant prays for enhancement of the sentences of Zafar appellant and also for conviction and sentences of Haji Sultan and Javed Iqbal, respondents in appeal against acquittal, to meet the ends of justice. 10. We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have also scanned the record with their able assistance. 11. The incident in this case took place on 11.05.2004 at 08:00 a.m. Umar Farooq complainant (PW-2) reported the matter to the police by recording his statement before Noor Muhammad ASI (PW-13) on the same day at 09:00 a.m. Consequently, FIR No.115/2004 (Ex.PB/1) was lodged at Police Station Barana, Tehsil Chiniot at 09:40 a.m. which is situated at a distance of 11 kilometers from the place of occurrence. During arguments, learned counsel for the appellants contended that the FIR (Ex.PB/1) was not recorded at the time mentioned therein, but the contention of learned counsel for the appellants is not supported by any substance as during trial, not even a single question was asked from Ijaz Ahmad, Moharrar (PW-9) to establish the above contention on record. As such, the appellants cannot claim at this stage that the FIR (Ex.PB/1) was lodged at belated stage, after conducting preliminary inquiry. The short span of an hour absolutely rules out any chance of deliberation or consultation about the matter by Umar Farooq complainant (PW-2) before reporting the same to Noor Muhammad ASI (PW-13), thus, we are of the considered view that delay of one hour in reporting the matter to the police is natural and is not fatal to the case of prosecution especially under the circumstances when the witnesses were not cross-examined by the defence on the point of deliberation and consultation and as such we are of the view that no conscionable time was consumed by the complainant to consult or deliberate over the matter rather the matter had been reported with sufficient promptitude, which fact has convinced us that no extraneous delay occurred in lodging the FIR. Some other imperative features observed by us in this case are that the appellants are duly named in FIR (Ex.PB/1) and specific role of inflicting firearm injuries to the deceased as well as the injured have been attributed to them therein, which facts find support from the postmortem reports and medico legal certificates of the deceased and the injured victims. 12. There is no cavil to the proposition that ocular account bears the most essential position in a criminal case as its whole fate depends on the authenticity and validity of ocular account. In this case, ocular account has been furnished by eye-witnesses namely Umar Farooq complainant (PW-2), Tahir Abbas injured (PW-3) and Mallah Khan injured (PW-4). We have observed that Umar Farooq complainant while appearing before the learned trial Court as PW-2 has narrated the same facts and allegations as described in FIR (Ex.PB/1). His version was duly supported by Tahir Abbas injured (PW-3) and Mallah Khan injured (PW-4) and their statements are in line with the statement of PW-2. Upon careful examination of the contents of FIR (Ex.PB/1) as well as the statement of Umar Farooq complainant (PW-2), it has been observed by us that this witness stood firm to the test of lengthy cross-examination and the defence remained unable to dislodge his presence from the spot. So far as the presence of Tahir Abbas (PW-3) and Mallah Khan (PW-4) is concerned, the injuries on the persons of these PWs confirm their presence at the spot at the time of occurrence. It was a daylight occurrence and the parties were also well known to each other prior to the occurrence, which of course rules out any chance of mistaken identity of the culprits at the time of occurrence. It is also an admitted fact that no blood feud or enmity existed between the complainant as well as the injured PWs and appellants, which could lead to their false implication in the instant case. We have also observed that all the eye-witnesses remained consistent qua the role attributed to Zafar appellant in the commission of occurrence. Similarly, they are also unison on the mode and manner in which Mazhar appellant murdered Shahadat deceased and injured Mallah Khan (PW-3) and in this regard, there is not even a single iota of contradiction between their statements. In view of the statements of Umar Farooq complainant (PW-2), Tahir Abbas injured (PW-3) and Mallah Khan injured (PW-4) and keeping in mind the factual position of the case, we fully agree with the contention of learned counsel for the appellants that it was not a preplanned occurrence, however, we are not inclined to agree with the contention that injuries on the persons of Shahadat and Falaksher deceased as well as Tahir Abbas injured (PW-3) and Mallah Khan injured (PW-4) were caused by their own companions during the course of cross-firing. The defence candidly admits the presence of Zafar appellant and Azhar accused (P.O.) at the spot at the time of occurrence. It is very astonishing to note here that as many as four persons from complainant side sustained injuries during the occurrence, but the accused did not suffer even a scratch on their bodies. This fact is enough to hold that no cross-firing took place at the spot and that only the appellants' side was armed with weapons at the time and place of occurrence. 13. So far as the contention that the eye witnesses are related inter se as well as with the deceased persons and as such they are interested witnesses is concerned, law is settled on the point that an interested witness is one who is interested in the conviction of an accused for some ulterior motives, but in this case the defence could not bring on record any ulterior motive of the complainant or the injured witnesses to falsely implicate the appellants in this case. In this regard, guidance can be sought from the case of "Muhammad Aslam v. The State" (2012 SCMR 593), wherein it has been observed as under:-- "In the present case ocular version has been furnished through the statement of P.W.6 Haq Nawaz who is real son of the deceased Muhammad Nawaz and P.W.7 Ahmad Nawaz, the other eye-witness who is cousin of the complainant. So, both the eye-witnesses are closely related with each other and with the deceased inter se but mere relationship is not sufficient to term them as interested witnesses as there was no previous enmity between the parties. Both the eye-witnesses are residents of the same village where the incident took place and their presence at the spot has been established beyond any shadow of doubt. Both the eye-witnesses had made consistent statements against the appellant that he came at the spot duly armed with mouser and fired at the deceased." 14. Keeping in view the above discussion, we find no reason to discard the statements of the eye-witnesses, who had no enmity or ill-will against the appellants to falsely depose against them in this case where two persons lost their lives and the other two made good narrow escape from the clutches of death, as such their testimonies being trustworthy and confidence inspiring are found sufficient to connect the…

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