2018 PLP 23 (YLRN)

MALIK HAQ NAWAZ, J.

The convict/appellant was booked for the offence under sections 302 and 429, P.P.C. vide FIR No. 17/2012 registered at Police Station Darel, District Diamer on 24-04-2012 regarding double murder of one Mehboobullah and his son namely Majeedullah age about 7 years, while they both were returning back from Polo Ground after playing polo and both the deceased were riding on a horse, which was also got riddled with bullets and died at the spot.

2. The FIR of this tragic incident was lodged by one Naseemullah son of Barkati Khan and after completion of necessary investigation the appellant was sent to face trial on the above charges.

3. The case was registered as session case No. 38/2012 and the accused was sent to face trial. The charge of the accused was framed on 23-02-2012 to which the accused pleaded not guilty and claimed trial. The PWs were summoned and in order to prove the case prosecution examined 05 PWs and closed its case.

4. The statement of accused under section 342, Cr.P.C. was recorded on 13-11-2014. The accused did not opt to be examined on Oath as required under section 340(2), Cr.P.C.

5. On 13-11-2014 the arguments were heard and the case was fixed for consideration/ orders on 29-11-2014. On 29-11-2014 the learned trial Court announced the verdict of guilt against the accused. Operative part of the judgment is at para 10, which is re-produced as under:-

10. In view of the above deliberations, this Court is of the opinion that prosecution has successfully proved the charges against the accused beyond reasonable doubt. Accused Hazrat Hussain son of Muhammad Rawwan resident of Katukush Tehsil Darel is hereby convicted under section 302(b), P.P.C. for the Qatl-i-amd of deceased Mehboobullah son of Barkati Khan and Majeedullah son of Mehboobullah resident of Kakukush Tehsil Darel. It is on record proved that convict Hazrat Hussain has in abuse of power has murdered an innocent boy Majeedullah son of Mehboobullah age about seven years therefore convict deserves no leniency and he deserves death penalty but since he is a juvenile accused and under section 12 of Juvenile Justice System he cannot be awarded death sentence therefore convict Hazrat Hussain is sentenced to life imprisonment. He is convicted under section 428, P.P.C. for the murder of horse and is sentenced to five years imprisonment. He is convicted under section 13 Arms Ordinance and is sentenced to one year simple imprisonment. Sentences of imprisonment shall run concurrently and benefit of section 382-B, Cr.P.C. shall be given to him. Convict Hazrat Hussain son of Muhammad Rawwan shall pay Rs. 3,00,000/- compensation under section 544-A, Cr.P.C. to the LRs. of deceased Mehboobullah and Majeedullah. In default of payment he shall undergo further imprisonment of six months.

6. The learned counsel for the convict/appellant submitted that the case is false and there is no worth reliance evidence on the prosecution file to connect the appellant with the alleged crime and the learned trial Court has awarded punishment to the appellant violating the principles of criminal Justice. The postmortem of deceased was not conducted and the crime weapon was also not sent to forensic expert for expert opinion. The conviction has been based on the statement of complainant and PW-2 Umer Farooque, which are contradictory on almost all material points available on the file. Per learned counsel the FIR was lodged after preliminary investigation and after due deliberation/ consultation of the complainant party. The PWs are closely related and it is its own case of prosecution that the occurrence took place in a busy market during working hours and despite of availability of a large number of public, no private witness has been cited in the challan. The learned counsel prays that the conviction recorded by the trial Court be set-aside and the accused be acquitted from the charges.

7. On the other hand the learned counsel for the State vehemently controverted the contentions raised at bar by the defence counsel and submitted that it was a daylight occurrence and the FIR of the occurrence was promptly lodged, which also contains the name of two eye-witnesses. The accused was named as the sole perpetrator of the crime. Weapon of offence was also recovered from his possession in the presence of two marginal witnesses, which also lends support to the prosecution version. The learned Dy. Advocate General, also submits that it is a case of single accused and it is not imaginable that a real brother of the deceased will leave the real culprits and instead will substitute an innocent person. The learned Dy. Advocate General submits finally that the judgment of the trial Court has been rendered after due application of judicial mind and the same be maintained in the larger interest of justice.

8. We have heard both counsel for the parties at length and perused the record of the case with their able assistance.

9. There are some uncontroverted facts, which we gathered from the available record. It is an admitted fact the FIR of the occurrence was promptly lodged by the complainant Naseemullah who is the real brother of the deceased Mehboobullah and real uncle of minor Majeedullah. The accused Hazrat Hussain was charged in the FIR for double murder and the place of occurrence/time of occurrence has not been seriously challenged by the defence, rather impliedly admitted by the defence. Both the eye-witnesses namely Naseemullah and PW-2 Umer Farooq remained consistent in their statement throughout trial and despite lengthy cross-examination defence failed to extract anything in its favour. The main contention of the learned counsel that there is no corroboratory evidence available in the instant case is devoid of any legal force as corroboration is a rule of prudence and not a rule of jurisprudence. Each and every criminal case has its own peculiar circumstances and criminal cases are decided according to their own peculiar attending circumstances. In some cases, where the evidence is of sketchy nature and some doubts are infused in the mind of the Court, the Courts always look for independent corroboration qua the culpability of the accused but when the mind of the Court is satisfied that there is no exaggeration in the case by the complainant and the presence of the eye-witnesses is established through the physical circumstance of a given case, the conviction could be recorded without a second thought. Relationship of a witness with the deceased or his family is not a disqualification to be a witness. In criminal cases it is the intrinsic worth of evidence which is to be adjudged by a Court and it is always judicial wisdom of the Court to believe or not to believe a particular witness in the given circumstances. The corroboratory evidence is always meant to test the veracity of ocular evidence and corroboratory evidence alone, howsoever strong, cannot take place of or could be used as a substitute of substantive evidence and when the ocular evidence fails, the question of corroboration does not arise.

10. Now coming to the merits of the instant case, we found that the statement of PW Naseemullah (FIR lodger) and PW-2 Umer Farooq are quite in line and there is complete unison between the statements of these two witnesses. The contention of defence that the story of occurrence unfolded by the complainant does not appeal to a prudent mind is devoid of any logic. Both the eye-witnesses stated in their statements that the accused fired from behind and the fire first hit from the back side of deceased Mehboobullah and after piercing the body of Mehboobullah, it went through the body of deceased Majeedullah and lastly hit the head of the horse. The same facts could be gathered from 25:35 (inquest report) prepared by the IO of the both the deceased. The inquest report of deceased Mehboobullah was exhibited during trial as Exh. PW.5/C and of Majeedullah as Exh. PW-5/D. Strange enough that the correctness or otherwise of the same has not been challenged during the examination/cross-examination of the relevant P.Ws. It is now almost all an admitted legal position that if a fact is deposed by a witness in cross-examination and same is not challenged, the presumption would be that the same has been admitted by the opposite party. The site plan of the occurrence was prepared by the I.O. and exhibited as Exh.PW-1/E. The presence of complainant Naseemullah has been shown at point No.5 of the site plan and likewise the presence of other two eye-witnesses has been shown at point Nos.6 and 7 and the same facts are further authenticated by the site inspection report. Non-conducting of post-mortem is not fatal, when the cause of death is neither disputed nor challenged and the lacuna if any left due to absence of post-mortem could be filled by adducing straight forward and trust worthy evidence.

11. In the light of above discussion, we see no infirmity in the impugned judgment and the same is up held in toto. Resultantly, Cr. Appeal No.49/2014 filed by the convict/appellant is dismissed being meritless. JK/147/GB Appeal dismissed.