Full Judgment Text & Judicial Ruling

2022 Y L R 1874 [Peshawar (Mingora Bench)] Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ JOHAR ALI---Appellant Versus AMJAD ALI and another---Respondents Criminal Appeal No.479-M and Criminal Revision No. 112-M of 2019, decided on 2nd June, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Ocular account---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---Motive behind the occurrence was that other brother of the deceased got recorded his statement as a witness in an earlier criminal case registered against the accused, due to which he was annoyed---Record revealed that eye-witness account of the occurrence had been offered by the complainant---Supporting evidence of last seen had been offered by a witness---Presence of the complainant could not be doubted just for the reason that the Medical Officer had, in his report of initial examination of the injured, stated that injured had been accompanied by witness---Medical Officer was not supposed to and he could not have mentioned all the people who had accompanied the injured to the hospital---Occurrence had taken place close to house of the deceased and beside witness he might have been accompanied by a number of people including the neighbours, but all of them could not have been mentioned by the Medical Officer and that also in such an emergency---Presence of the complainant along with his brother at the relevant time could not be disbelieved---Presence of complainant along with his deceased brother had also been mentioned by the other witness, in his statement under S.161, Cr.P.C. recorded same night at the place of occurrence without any delay---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly. 2020 SCMR 319; 2021 PCr.LJ 373; 2021 YLR 52; 2021 YLR 95; 2021 PCr.LJ 479; 2011 SCMR 429; 2016 SCMR 2152; 2020 SCMR 595; 2013 YLR 895; 2019 YLR 1109; 2020 YLR 1423; 2021 SCMR 298; 2020 YLR 654 and 2021 PCr.LJ 705 ref. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Delay of fifty five minutes in lodging the report---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---Report in the case had been lodged by the complainant in the hospital after fifty five minutes of the occurrence, which could not in circumstances of the case be stated to be a delayed report---Arrival of the injured at the hospital shown as 07:45 p.m. and lodging of report at 07:55 p.m. would have been after initial management of the patient and thus the report in circumstances of the case was reasonably prompt---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence--- Contradictions in the statements of witnesses---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---No doubt that certain minor contradictions in statements of complainant and witness of last seen evidence were found---Said two witnesses had been examined in the Court after more than four years of the occurrence---Occurring of such minor contradictions was quite natural---Minor contradictions had not been related to the actual occurrence but related to arrival of the complainant and his brother to the mosque as well, as such other matters which could not be called as discrepancy in material particulars of the case---Witnesses were examined after more than four years of the occurrence, therefore, a photographic narration of the occurrence could not be expected from them---Such minor contradictions in statements of the witnesses were not sufficient to entitle the accused to outright acquittal, but such minor weaknesses in the case of prosecution might be considered in awarding him the lesser punishment---Trial Court had rightly awarded life imprisonment to the accused under S.302(b), P.P.C. instead of a death penalty---Appeal was dismissed accordingly. Khadim Hussain v. The State PLD 2010 SC 669; Muhammad Ilyas v. The State 2011 SCMR 460; Zulfiqar Ahmad v. The State 2011 SCMR 492 and Falak Sher v. The State 1999 SCMR 2432 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Motive was proved---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---Motive behind the occurrence was that other brother of the deceased got recorded his statement as a witness in an earlier criminal case registered against the accused, due to which he was annoyed---Prosecution had also been able to successfully prove the motive in shape of Naqal Mad No. 11 dated 08.10.2014, which had been lodged by the deceased then alive himself against the accused and another person---In the said report, it was alleged that about six months back another deceased had been killed by accused and his co-accused due to unknown reasons---In respect of murder of said deceased a separate criminal case had earlier been registered vide FIR, a copy of FIR had also been exhibited in the case---Brother of the deceased in the case in hand had testified in the earlier case registered against the accused which fact had created a bad taste between the parties---Accused were also alleged to have threatened the complainant-party of dire consequences due to said statement and had also made aerial firing in front of house of the complainant party for intimidating them--- Prosecution had thereby established existence of motive on part of the accused for commission of the offence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Absconsion of accused---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---Record showed that the accused had also remained absconder for more than two years---Absconsion by itself could not be held sufficient for recording conviction on a capital charge, but when other reliable evidence was available with the prosecution, then such a prolonged and unexplained absconsion might safely be taken into account as a corroboratory piece of evidence against an accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt--- Appeal was dismissed accordingly. Riaz Hussain v. The State 2001 SCMR 177; Mawas Khan v. The State and another PLD 2004 SC 330 and Manzur Elahi v. The State PLD 1965 (W.P.) Lahore 656 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Non-recovery of weapon of offence---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---Record showed that the weapon of offence i.e. Kalashnikov could not be recovered in the case, but the accused had remained absconder for more than two years and the possibility of disposing the weapon of offence during such period could not be ruled out---Testimony of witness of last seen evidence was also providing added vigor to the case of prosecution in that respect as said witness had seen the accused duly armed with Kalashnikov decamping from the spot immediately after the occurrence---Besides, six empty shells of Kalashnikov had also been recovered from the spot---Non-recovery of the weapon of offence in the case would hardly make any difference---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Source of light---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---Occurrence had taken place during night time and in respect of identity of the accused the Investigating Officer had taken in possession a source of light i.e. bulb vide recovery memo---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly. Shakil Ahmad Khan for Appellant (in Criminal Appeal No.479-M of 2019). Said Hakim for Respondent No.1 (in Criminal Appeal No.479-M of 2019). Alam Khan Adenzai, Asst: A.G. for the State (in Criminal Appeal No.479-M of 2019). Said Hakim for Petitioner (in Criminal Revision No.112-M of 2019). Alam Khan Adenzai, Astt: A.G. for the State (in Criminal Revision No.112-M of 2019) Shakil Ahmad Khan for Respondent No.2 (in Criminal Appeal No.112-M of 2019). Date of hearing: 2nd June, 2021. JUDGMENT WIQAR AHMAD, J.---Appellant namely Johar Ali has called in question judgment dated 15.10.2019 of the Court of learned Additional Sessions Judge/ Model Criminal Trial Court Malakand at Batkhela, vide which the appellant was convicted and sentenced as follows:-- Under section 302(b), P.P.C. to life imprisonment along with compensation of Rs. 300,000/- (three hundred thousand) under section 544-A, Cr.P.C., payable to legal heirs of the deceased. In default of payment of compensation, the appellant was ordered to further undergo six months simple imprisonment. The compensation was ordered to be recoverable as arrears of land revenue. Under section 324, P.P.C. to five years rigorous imprisonment along with fine of Rs. 100,000/-, or in default thereof to suffer four months simple imprison-ment. The fine was ordered to be recoverable as arrears of land revenue. All the sentences were ordered to run concurrently. Appellant was also extended benefit of section 382-B, Cr.P.C. 2. Appellant faced trial in the case registered vide FIR No. 415 dated 15.12.2014 under sections 302, 324, P.P.C. at Levy Post Dargai District Malakand, on the basis of 'Murasila' (Ex. PW-5/1) sent by Aziz-ur-Rehman, IHC (PW-5) on 15.12.2014. Complainant namely Amjad Ali (PW-7) lodged report of the occurrence at emergency ward of Dargai hospital by stating that on the day of occurrence he along with his brother namely Wajid Ali (deceased) were going to their house, after offering of Isha prayers. As soon as the complainant-party reached near the house of one Hazrat Muhammad, the appellant namely Johar Ali started firing upon them. Due to firing of appellant his brother Wajid Ali got hit on his right eyebrow/face, while the complainant escaped un-hurt. Motive behind the occurrence was stated to be that his other brother namely Jawad Ali had recorded his statement as a witness in an earlier criminal case registered against the appellant, due to which he had been feeling annoyed. 3. Since accused/appellant was initially avoiding his lawful arrest, therefore proceedings under section 512, Cr.P.C. were initiated against him. During the course of investigation, the Investigating Officer recovered six empty shells of Kalashnikov from the spot vide recovery memo Ex. PW-5/4 dated 15.12.2014. He also prepared site plan Ex. PW-5/3 on pointation of the complainant, and took in possession blood stained earth from place of the deceased vide recovery memo Ex. PW5/5 dated 15.12.2014. He also took in possession a bulb 100 watt from the spot vide recovery memo Ex. PW-5/6 dated 15.12.2014. The Investigating Officer also took in possession blood stained garments of the deceased vide recovery memo Ex. PW-5/8 dated 20.12.2014. The recovered items were sent to Forensic Science Laboratory (hereinafter referred to as "FSL") for the purpose of chemical analysis and comparison, wherefrom report Ex.PW-5/18 was received and placed on file. He submitted challan under section 512, Cr.P.C. against the appellant on 14.01.2015. Evidence was recorded under section 512, Cr.P.C. and accused/ appellant was declared proclaimed offender vide judgment dated 08.05.2015 of the Court of learned Additional Sessions Judge Malakand at Dargai. 4. Appellant was arrested on 08.08.2017, on whose pointation the Investigating Officer made necessary additions in the already prepared site plan vide pointation memo Ex. PW-5/15 dated 10.08.2017. On completion of investigation, supplementary challan was submitted against the appellant before learned trial Court. After compliance of proceedings of section 265-C, Cr.P.C., charge was framed against him on 13.11.2017 to which he pleaded "not guilty" and claimed trial. Prosecution produced as many as eight (08) witnesses, whose statements were recorded and placed on file. On conclusion of proceedings in the case, accused was examined under section 342, Cr.P.C. The learned trial Court convicted and sentenced the appellant vide impugned judgment dated 15.10.2019 of the Court of learned Additional Sessions Judge Malakand at Batkhela, as stated earlier. Feeling aggrieved from his conviction and sentences, accused/ appellant has filed the instant appeal before this Court while complainant has also filed connected Criminal Revision No. 112-M of 2019 for enhancement of the sentences awarded to accused/ respondent. 5. Learned counsel for appellant submitted during the course of his arguments that presence of complainant was not believable at the relevant time as he had not accompanied the deceased then injured to the hospital. In this regard, he referred to the initial report of medical examination brought in evidence as Ex. PW-1/1 wherein the injured had been shown by the doctor to have been accompanied by one Israr (PW-6) when he had first been brought to the hospital. The learned counsel also stated that complainant while deposing as PW-7 had also brought certain dishonest improvements in his statement which had further rendered his evidence unreliable. The learned counsel also argued that prosecution have not been able to prove commission of the offence in the mode and manner as stated in first report of the occurrence as well as statement of the eye-witness while deposing in Court as PW-7. In this regard, he referred to statement of the doctor who had conducted postmortem examination of the deceased and whose statement has been recorded as PW-3. He added that Kalashnikov has been stated by the complainant to have been used in the occurrence but the metallic pieces shown stuck up in brainstem has made the mode and manner of occurrence doubtful. He added that, had the appellant fired at the deceased from a distance of 7/8 paces the bullet would have crossed the body through and through. In order to bolster his arguments, he placed reliance upon the judgments reported as 2020 SCMR 319, 2021 PCr.LJ 373, 2021 YLR 52, 2021 YLR 95 and 2021 PCr.LJ 479. 6. Learned counsel appearing on behalf of the complainant started his arguments by referring to the earlier complaint lodged by the deceased against accused (Ex. PD), in order to explain motive for commission of the offence. He also stated that injury to the deceased might have been caused through a rebound bullet or its pieces, but narration of the path of bullet and the fact of its rebound, could not be expected from the complainant, in such circumstances. He added that the prosecution have been able to prove that the appellant had made firing at the deceased as a result of which the deceased had received firearm injury and had died subsequently. In support of his assertions, he relied upon the judgments reported as 2011 SCMR 429, 2016 SCMR 2152, 2020 SCMR 595, 2013 YLR 895,2019 YLR 1109, 2020 YLR 1423, 2021 SCMR 298, 2020 YLR 654 and 2021 PCr.LJ 705. The learned Astt: A.G appearing on behalf of State also adopted the arguments of learned counsel for complainant. 7. We have heard arguments of learned counsel for the parties, learned Astt: A.G. appearing on behalf of State and perused the record. 8. Perusal of record reveals that eye-witness account of the occurrence has been offered by the complainant while deposing in Court as PW-7. The supporting evidence of last seen has been offered by Israr Ahmad while deposing as PW-6. The other corroboratory evidence shall however be discussed later. The complainant while deposing as PW-7 has stated that he along with his brother namely Wajid Ali (deceased then alive) had gone to the nearby mosque for offering Isha prayers. When they left the mosque they also met the other PW namely Israr, whereafter he and his brother moved towards their house. When they reached the house of one Hazrat Muhammad, the appellant namely Johar Ali made firing on them and on turning towards him, his brother received injury on his right eye. He has further narrated taking of the injured to the hospital and his onward referral to the hospital at Mardan and then to Lady Reading Hospital (hereinafter referred as "LRH" ), etc. In his cross-examination he was confronted with his initial report wherein it could not be found mentioned that on getting out of the mosque they had met PW Israr and that firing had been made upon them from their back. He also stated that it had been correct that the actual animosity had been existing between the appellant and brother of the PW Jawad Ali and added that the appellant had also made firing on said Jawad Ali. He also stated that he along with the deceased then alive as well as Israr had performed Isha prayers in congregation. He was not able to tell whether rapid firing had been made or whether firing had been made in a single mode of fire. He also stated that the injured had remained at the spot for about 20/30 minutes during which time they had been taking him to end of the street and then had put him in a vehicle so as to take him to the hospital. Regarding the injuries he has stated that the deceased had received 2/3 injuries. Further ahead in his cross-examination the witness has also stated that he had not accompanied the deceased then injured to the hospital at Mardan or Peshawar and added that other brothers namely Jawad and Bakhti Zaman had accompanied him. 9. The other witness namely Israr had though not been an eye-witness but he has stated that he had offered Isha prayers with the complainant and the deceased and had stayed at a grocery store near the mosque while the deceased and complainant left for their house. On hearing sound of fire shots he had immediately rushed towards the place of occurrence and seen the appellant duly armed with Kalashnikov, running towards the shops, as well as the deceased lying in injured condition due to receipt of fire shots. In his cross-examination, the witness stated that the Investigating Officer had recorded his statement on the night of occurrence at about 21:30/21:45 hours. While he was confronted with his statement recorded under section 161, Cr.P.C. it was not found therein that he had stated to the Investigating Officer that he had exchanged greetings ( ) with the complainant and his brother after offering prayers and that he had remained in the grocery store, as well as mentioning of presence of Naveed Ali, brother of the complainant. He has stated in his cross-examination that the deceased and complainant had been living in same house which was situated at a distance 15/20 meters from the mosque. He stated that the deceased had remained on the spot for 10/15 minutes. He also stated that when they reached the mosque for offering prayers the deceased and complainant had been present in the mosque already. Complainant has however stated that all the three had entered the mosque together. 10. Presence of the complainant cannot be doubted just for the reason that the doctor had, in his report of initial examination of the injured, stated that injured had been accompanied by Israr (PW-6). The doctor was not supposed to and he could not have mentioned all the people who had accompanied the injured to the hospital. The occurrence had taken place close to house of the deceased and beside Israr he might have been accompanied by a number of people including the neighbors, but all of them could not have been mentioned by the doctor, and that also in such an emergency. He was not supposed to document presence of the PWs but to give emergency treatment to the injured who had by then been critically injured. They had gone for offering Isha prayers in the nearby mosque situated at a distance 15/20 meters. At Isha time presence of the PW in his house or going for offering Isha prayers to the mosque along with his brother had been quite natural. When the occurrence had taken place on their return to their house immediately after offering Isha prayers and the timings given in the 'Murasila' as well as report of initial examination of the deceased then injured (Ex. PW-1/1) support such fact, then presence of the complainant along with his brother at the relevant time cannot be disbelieved. His presence along with his brother Wajid Ali (late) has also been mentioned by the other PW namely Israr Ahmad, in his 161 statement recorded same night on the place of occurrence, without any delay. Report in the instant case has been lodged by the complainant in the hospital after 55 minutes of the occurrence, which cannot in circumstances of the case be stated to be a delayed report. Arrival of the injured at the hospital shown as 07:45 p.m. and lodging of report at 07:55 p.m. would have been, after initial management of the patient and thus the report in circumstances of the case was reasonably prompt and also shows presence of the complainant along with the injured, in the hospital immediately after the occurrence. So far as the improvements in the statements of two PWs are concerned these are of embroidery nature, offered as further explanations, and does not bear any decisive effect on the case of prosecution. Had these improvements not been there, the situation would have remained as it is now. The improvements have not been making any difference and same cannot be termed as dishonest improvements carrying the potential of damaging the evidentiary value of the statements of PWs. 11. There had no doubt been certain minor contradictions in statements of PW-6 and PW-7, but it is equally important that these two witnesses had been examined in the Court after more than four years of the occurrence and occurring of such minor contradictions as mentioned earlier had been quite natural. The minor contradictions had not been related to the actual occurrence but related to arrival of the complainant and his brother to the mosque as well as such other matters which cannot be called as discrepancy on material particulars of the case. When witnesses are examined after more than four years of the occurrence a photographic narration of the occurrence cannot be expected from them. Hon'ble Supreme Court of Pakistan in its judgment given in the case of "Khadim Hussain v. The State" reported as PLD 2010 Supreme Court 669 has held that creeping in of minor contradictions in testimony of PWs, with passage of time, have been natural and same could be ignored. Relevant part of observation of the august Court is reproduced hereunder for ready reference:-- "We have also adverted to the contention of learned ASC that various contradictions in the statements of the prosecution witnesses have not been taken into consideration causing serious prejudice against the appellant. It has been held time and again by this Court that minor contradictions do creep in with the passage of time and can be ignored safely." Similarly, in the case of "Muhammad Ilyas v. The State" reported as "2011 SCMR 460" the Hon'ble Supreme Court had also observed:-- Contradictions which are not grave in nature can be ignored safely as minor contradictions creep in with passage of time. Merely on the basis of contradictions, statement of a prosecution witness cannot be discarded if corroborated by other incriminating material. Further reliance in this respect may also be placed on judgment of Hon'ble Apex Court rendered in the case of "Zulfiqar Ahmad v. The State" reported as "2011 SCMR 492". 12. We would now discuss objection of learned counsel for appellant regarding proof of the mode and manner of the occurrence. Main focus of the learned counsel for appellant in this respect had been on the claimed discrepancy between eye-witness account and the medical evidence. The deceased then injured had initially been taken to Dargai hospital where he had been examined by doctor Shehzad who appeared and…

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