2025 PLP 1404 (MLD)

Farooq Haider, J.

This single judgment will dispose of Crl. Appeal No.15845/2022 filed by Afzaal alias Phali (appellant) against his "conviction and sentence" and Murder Reference No.66/2022 sent by trial court as both the matters have arisen out of one and the same judgment dated: 04.03.2022 passed by learned Addl. Sessions Judge, Depalpur/trial court.

2. Afzaal alias Phali (appellant) along with his co-accused persons namely Asghar alias Ranjha, Iqbal alias Bali, Tahir and Ijaz alias Jajji, was tried in complaint case titled as "Abid Mehmood v. Asghar alias Ranjha and others" and trial court after conclusion of the trial, vide impugned judgment dated: 04.03.2022 while acquitting Asghar alias Ranjha, Iqbal alias Bali, Tahir and Ijaz alias Jajji (aforementioned co-accused persons) has convicted and sentenced the appellant as under: - Conviction Sentence Under Section: 302(b), P.P.C "Death" as ta'zir for committing Qatl-e-Amd of Khalid Mehmood (deceased) along with payment of compensation of Rs.5,00,000/- under Section: 544-A, Cr.P.C. to the legal heirs of said deceased which shall be recovered as arrears of land revenue and in default whereof to further undergo six months simple imprisonment.

3. Primarily, Abid Mehmood (complainant/PW-1) set the machinery of law into motion by moving application (Ex.PB) to Station House Officer, Police Station: City Depalpur, mentioning therein that on 11.06.2017 at about 10.00 a.m. Iqbal alias Bali who is paternal cousin of the complainant demolished breaker which was temporarily made at the road by paternal uncle of the complainant namely Ghulam Mustafa, who was refrained by Ghulam Mustafa, due to which quarrel took place between the parties in which Ghulam Mustafa, Khalid Mehmood (now deceased of the case) and Iqbal became injured; complainant party went to Hujra Hospital for getting result from where they were referred to Depalpur Hospital; complainant, Ghulam Mustafa, Farooq Hayat, Khalid Mehmood (brother) came at Depalpur Hospital at about 3.00 p.m.; meanwhile, accused persons namely Asghar alias Ranjha, Iqbal alias Bali, Afzaal alias Phali (present appellant), Tahir, Ejaz alias Jajji came there who were armed with pistols and raised 'lalkara' that today they will give taste of quarrel to Khalid Mehmood who considered himself as a big policeman, Afzaal alias Phali fired shot with pistol which hit on right side of chest at front of Khalid Mehmood, then Asghar alias Ranja fired shot with pistol which hit at right leg of Khalid Mehmood, accused persons while making firing at random in the hospital spread terror meanwhile; police reached at the spot, Asghar alias Ranjha, Iqbal alias Bali, Afzaal alias Phali (present appellant) were arrested at the spot whereas other accused persons fled away. Khalid Mehmood was referred by hospital administration after providing first aid to Lahore hospital, however, he succumbed to the injuries on the way. On the basis of said application, FIR No.420/2017 (Ex-PB/1), dated: 11.06.2017, was registered under Sections: 302, 7-ATA, 148, 149, P.P.C at Police Station: City Depalpur, District: Okara. Being dissatisfied with the conduct of the police, complainant filed "complaint" (Ex.PA) against Asghar alias Ranjha, Iqbal alias Bali, Afzaal alias Phali, Tahir and Ijaz alias Jajji under Sections: 302, 148, 149, P.P.C. It is pertinent to mention here that five accused persons, namely, Asghar alias Ranjha, Iqbal alias Bali, Afzaal alias Phali, Tahir and Ijaz alias Jajji {mentioned in the complaint (Ex.PA)}, were formally charge sheeted to which they pleaded not guilty and claimed trial; complainant produced witnesses, namely, Ghulam Mustafa as PW-2, Dr.Muhammad Umar, Medical Officer as PW-3 and Dr.Adil Rasheed, Medical Officer as PW-4 and the complainant himself appeared as PW-1 to prove the charge against the accused whereas eleven witnesses were examined by the trial court as Court Witnesses; ocular account was furnished by Abid Mehmood (complainant/PW-1), Ghulam Mustafa (uncle of the complainant/PW-2), Muhammad Iqbal Ejaz, Ward Servant (CW-3), Qasim Ali 98/c (CW-6) and Sarwar Sajid 869/C (CW-7), medical evidence was furnished by Dr. Muhammad Umar, Medical Officer (PW-3) and Dr.Adil Rasheed (PW-4) whereas Dilshad Ahmad, Inspector/ Investigating Officer of the case (CW-10) deposed about investigation of the case. Thereafter statements of the appellant and his co-accused persons were recorded under Section: 342, Cr.P.C. in which they refuted the allegations levelled against them; neither they opted to appear as their own witnesses under Section: 340(2), Cr.P.C. nor they produced any evidence in their defence. Trial Court after conclusion of trial while acquitting co-accused, namely, Asghar alias Ranjha, Iqbal alias Bali, Tahir and Ijaz alias Jajji, has convicted and sentenced the appellant as mentioned above through impugned judgment dated: 04.03.2022.

4. Learned counsel for the appellant submits that impugned judgment to the extent of appellant is against the 'law and facts' of the case; ocular account is neither trustworthy nor corroborated/supported by any other independent evidence rather same is contradicted by medical evidence; prosecution failed to prove its case against the appellant as co-accused have been acquitted; further submits that if case of prosecution is believed against the appellant, even then circumstances show that appellant acted in his self-defence and in said circumstances also, he (appellant) can be convicted under section 302(c), P.P.C. Learned counsel for the appellant finally prayed for acquittal of the appellant.

5. Conversely, learned Deputy Prosecutor General while supporting the impugned judgment submits that appellant was apprehended red-handed at the place of occurrence at the time of occurrence and prosecution has proved its case against him beyond any shadow of doubt and finally prayed for dismissal of the appeal. Though learned counsel appearing on behalf of the complainant and the complainant in attendance were asked to argue but they did not opt to argue the case.

6. Arguments heard. Record perused.

7. It has been noticed that occurrence took place on 11.06.2017 at 3.00 p.m. whereas matter was reported by complainant Abid Mehmood (PW-1) through application (Exh.PB) and FIR (Exh.PB/1) was recorded on 11.06.2017 at 10.55 p.m. Since after receiving firearm injuries, Khalid Mehmood (now deceased of the case) was referred to Lahore after providing first aid to him, who was being taken to Lahore hospital however succumbed to the injuries on the way, brought back and then complainant moved application for registration of the case, therefore, there was no undue delay in registration of the case rather same is well explained with valid reason and relevant portion of the statement of Abid Mehmood (complainant/PW-1) in this regard is hereby reproduced:- "Thereafter we got medically examined Khalid Mehmood deceased who was alive and Ghulam Mustafa PW from THQ, Depalpur. But the doctor of THQ, Depalpur referred Khalid Mehmood injured to Lahore for batter treatment. When we were taking Khalid Mehmood injured to Lahore, he succumbed to the injuries on the way. Thereafter we brought the dead body of Khalid Mehmood deceased to THQ, Depalpur." Ocular account in this case comprises of Abid Mehmood (complainant/PW-1) and Ghulam Mustafa (PW-2), Muhammad Iqbal Ejaz, Ward Servant (CW-3), Qasim Ali 98/c (CW-6) and Sarwar Sajid 869/C (CW-7). Abid Mehmood (complainant/PW-1) and Ghulam Mustafa (PW-2) both supported case of prosecution against Afzaal alias Phali (appellant) through their statements in straightforward manner before trial court. So far as contention of learned counsel for the appellant that role alleged against the appellant as per application for registration of case (Exh.PB) that shot fired by Afzaal alias Phali (appellant) hit at front of right side of chest is contradicted by medical evidence is concerned, suffice it to say that as per Postmortem Examination Report (Exh.PH) of Khalid Mehmood (deceased), there was fire arm entry wound 1 cm x 1 cm on middle and upper abdomen and said injury has also been mentioned in the pictorial diagram (Exh.PH/1) available at page No.206 of the paper book, the same is hereby scanned below:- It is relevant to mention here that speed of bullet fired from firearm weapon is more than the speed of sound, therefore, shot fired from firearm weapon hits first to the victim whereas its sound is subsequently heard by the person due to difference of their speed as mentioned above; hence, when after hearing report/sound of shot fired from firearm weapon, person looks towards the victim, till then, fire shot already hits the victim and in such circumstances, a person witnessing the occurrence while seeing oozing of the blood makes estimation regarding locale of injury caused by such shot and if shot fired by the firearm weapon has hit at the body which is covered by wearing clothes of the victim, then after hitting of fire shot, blood oozes and spreads on the wearing clothes at and adjacent area of the wound where shot has hit and in such circumstances minor variation regarding estimation by the human being about exact locale of receiving of firearm shot does occur naturally and in this case, deceased was wearing the clothes, he received the shot fired from pistol at front of his upper abdomen on middle which is very close to the front side of the chest and after receiving said shot, blood oozed, it definitely spread to the adjacent area of wearing shirt (Qameez) and estimation of the witnesses watching the occurrence that injury has been received at front right side of chest is not a big deal because photographic view of the firearm injury received by the victim cannot be expected from a human being and in this regard case of "Abdul Rauf v. The State and another" (2004 Cr.LJ 12) can be advantageously referred and relevant portion from the same is hereby reproduced:- "We may observe that the minor discrepancies in the medical evidence relating to the seat of injures would also not negate the direct evidence as the witnesses are not supposed to give photo picture of each detail of injuries in such situation, therefore, the conflict of nature of ocular account with medical evidence as pointed out being not material would have no adverse effect on the prosecution case." Even otherwise, during turmoil when live shots are being fired, witnesses in a momentary glimpse/glance make only tentative assessment of points where such fire shots appeared to have landed and it becomes highly improbable to mention their location with exactitude; in this regard, case of "Sajid Mehmood v. The State" (2022 SCMR 1882) can be advantageously referred and relevant portion from the same is hereby reproduced:- "It is settled that casual discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons. During turmoil when live shots are being fired, witnesses in a momentary glance make only tentative assessment of points where such fire shots appeared to have landed and it becomes highly improbable to mention their location with exactitude." Hence, said difference cannot be termed as a major contradiction between ocular and medical account in the case and thus not fatal, therefore, contention of learned defence counsel in this regard is repelled. In view of above, ocular account has been supported by medical evidence to the extent of the appellant. Though co-accused have been acquitted in this case yet while applying principle of sifting grain from chaff if ocular account produced by the prosecution through statements of complainant Abid Mehmood (PW-1) and Ghulam Mustafa (PW-2) is corroborated by other evidence, then same can be used and relied against the appellant and in this regard it is relevant to mention here that ocular version produced by the complainant through his statement got recorded as PW-1 as well as by statement of Ghulam Mustafa (PW-2) qua causing firearm injury by the present appellant to Khalid Mehmood (deceased) is concerned, same has been strongly corroborated by independent witnesses i.e. Qasim Ali (CW-6) and Sarwar Sajid (CW-7), relevant portion of the statement of Qasim Ali (CW-6) is hereby reproduced:- "On 11.06.2017 I and Sarwar Sajid 869/C were present in THQ hospital Depalpur in connection with the post mortem Examination of Muhammad Ahmed deceased of case FIR No.419/17 under sections 363, 302 and 34, P.P.C P.S City Depalpur and were present near the emergency ward of THQ hospital Depalpur. Where we heard the report of firing and saw that accused Afzaal alias Phali who was armed with pistol .30-bore and he made firing with it at Khalid Mehmood deceased which hit him on his leg who ran in injured condition towards the plot of the hospital where a carry daba was parked and he hit a brick on the Carry Daba upon which its mirror was broken and he took out a .44-bore rifle from it. Afzaal alias Phali accused again fired at Khalid Mehmood deceased with pistol .30-bore and one of the fires hit on the chest of Kahlid Mehmood deceased. Who fell down in injured condition. Abid Mehmood complainant brother of Khalid Mehmood deceased snatched the riffle from him from him. Sarwar Sajjid 869/C captured Abdi Mehmood and snatched the rifle from him. I and Sarwar Sajjid went towards the emergency ward and asked Afzaal alias Phali to throw his pistol .30-bore and surrendered for arrest. But Afzaal was threatened to be killed by them. The father of accused, Muhammad Asghar was present in the emergency room along with Iqbal alias Bali for treatment. He came out from emergency room and asked the accused Afzaal to surrender. On such request Afzaal alias Phali accused threw his pistol. I and Sarwar Sajjid 869/C arrested Afzaal alias Phali, Iqbal ". (emphasis added) Similarly, relevant portion of the statement of CW-7 is reproduced:- "On 11.06.2017 I and Qasim Ali 98/C were present in THQ hospital Depalpur in connection with the post mortem examination of Muhammad Ahmed deceased of case FIR No.419/17 under sections 363, 302 and 34, P.P.C P.S. City Depalpur and were present near the emergency ward of THQ hospital Depalpur. Where we heard the report of firing and saw that accused Afzaal alias Phali who was armed with pistol .30-bore and he made firing with it at Khalid Mehmood deceased which hit him on his leg who ran in injured condition towards the plot of the hospital where a carry daba was parked and he hit a brick on the Carry Daba upon which its mirror was broken and he took out a .44-bore rifle from it. Afzaal alias Phali accused again fired at Khalid Mehmood deceased with pistol .30-bore and one of the fires hit on the chest of Khalid Mehmood deceased. Who fell down in injured condition. Abid Mehmood complainant brother of Khalid Mehmood deceased snatched the riffle from him. I captured Abid Mehmood and snatched the rifle from him. I and Qasim Ali 98/C went towards the emergency ward and asked Afzaal alias Phali to throw his pistol 30-bore and surrender for arrest. But Afzaal was threatened to be killed by them. The father of accused, Muhammad Asghar was present in the emergency room along with Iqbal alias Bali for treatment. He came out from emergency room and asked the accused Afzaal to surrender. On such request Afzaal alias Phali accused threw his pistol. I and Qasim Ali 98/C arrested Afzaal alias Phali, Iqbal ". (emphasis added) The said Court witnesses were not belonging to any party, their presence at the place of occurrence, at the time of occurrence was quite natural and established beyond shadow of doubt, evidentiary value of their testimony could not be shattered during cross-examination rather their testimony has been found as cogent, convincing and truthful, thus, reliable which on the one hand has provided strong and doubtless eye-witness account against the appellant viz-a-viz his aforementioned role and on the other hand, has also provided strong corroboration to the ocular version provided by Abid Mehmood (complainant/PW-1) and Ghulam Mustafa (PW-2). It is further relevant to mention here that arrest of the appellant at the time and place of occurrence has been proved beyond shadow of doubt. Weapon of offence i.e. pistol used by the appellant for committing occurrence was taken into possession by police at the time of his arrest and as per report of Punjab Forensic Science Agency (Exh.PK), empties secured from the place of occurrence were found as having been fired from said pistol, therefore, it has also provided corroboration to the case of prosecution against the appellant. Hence, by taking all the aforementioned factors into consideration in totality and while seeking guidance from the case of "Syed Ali Bepari v. Nibaran Mollah and others" (PLD 1962 SC 502), it can be safely held that prosecution has proved its case against the appellant beyond shadow of doubt. As far as contention of learned counsel for the appellant that at the most, case against the appellant is of exercising self-defence and thus attracts offence under section: 302(c), P.P.C is concerned, same is also without any force because he himself initiated the occurrence while armed with firearm weapon and fired shot at the deceased, and it is trite law that no one can take advantage of his own wrong and in this regard famous maxims "Nullus commodum capere potest de injuria sua propria" and "commodum ex injuria sua memo. habere debet" can be advantageously referred. Therefore, said contention is repelled. Now coming to the defence version. The appellant during recording of his statement under Section: 342, Cr.P.C. in reply to Question No.18 that "Why this case against you and why the PWs and CWs have deposed against you?", stated as under:- "All the PWs of this case are related inter-se and they were inimical with me. All prosecution version is false, baseless and afterthought. Independent person present at the place of occurrence did not support prosecution version, rather they have negated the false version of the complainant and other alleged PWs has been negated by the CWs. The version of PWs and CWs are contradictory inter-se. During the course of investigation, it was found that it had not been taken in the manner as alleged by the complainant and other PWS. I.O of this case categorically concluded that the version of the complainant was incorrect and false. That in fact, the deceased of this case who was police official absented himself from his duty and with his companion, being armed with firearm weapon, made assault on Iqbal alias Bali, Asghar alias Ranjha and their attendants when they were being medially examined at THQ hospital Depalpur. As result of -ed indiscriminate firing, the deceased sustain injuries on his person. Allegation levelled against me is absolutely incorrect and false. I have been falsely involved in this case by the complainant due to his personal grudge and vendetta while twisting all the real facts. I am innocent." The appellant neither appeared under Section: 340(2), Cr.P.C. in support of his aforementioned version as well as to disprove the allegation levelled against him on oath nor produced any evidence in defence. Aforementioned reply made to question No.18 is mere bald denial which is of no help to the appellant. When aforementioned defence version has been kept in juxtaposition with the prosecution version then defence version has been found as of no avail whereas prosecution version to the extent of appellant has been found as plausible, confidence inspiring, truthful and fully established. In view of what has been discussed above, prosecution has proved its case against the appellant upto hilt, beyond any shadow of doubt; therefore, appellant has been rightly convicted as mentioned above; resultantly, aforementioned conviction recorded against the appellant is upheld and maintained. However, as far as quantum of sentence awarded to the appellant is concerned, it is important to mention here that as per case of prosecution appellant was not present in the earlier part of the occurrence which became motive for the commission of present occurrence in which murder of Khalid Mehmood (deceased) was committed. Furthermore, it was stated by complainant (PW-1) during his statement before the trial court that after the motive occurrence, the police reached at the place of motive occurrence and took Iqbal alias Bali as well as Asghar alias Ranjha to Police Station, relevant portion of his statement is hereby reproduced:- "After the motive occurrence the police reached at the place of motive occurrence. The police had taken Iqbal alias Bali and Asghar alias Ranjha to the Police Station from the place of motive occurrence in injured condition." and same fact was told by Ghulam Mustafa (PW-2) during his statement before trial court and relevant portion from his statement is reproduced as under:- "It is correct that we gave beating to Iqbal alias Bali and Asghar alias Ranjha accused prior to the murder of the deceased. It is correct that on the information of Asghar and Iqbal the police of Hujra Shah Muqeem arrived at the place of motive occurrence and taken them to Police Station in injured condition." and as per statement of Dilshad Ahmad, Inspector/Investigating Officer (CW-10), they both i.e. Asghar alias Ranjha and Iqbal alias Bali who were injured of the motive incident had come to THQ Hospital, Depalpur for Medico-Legal Examination and relevant portion of his statement is hereby reproduced:- "As per my investigation, Asghar alias Ranjha and Iqbal alias Bali both were found to be empty handed and both were injured of motive incident and both had come to THQ Hospital Depalpur for medico legal examination." It is also relevant to mention here that possibility cannot be ruled out that present appellant, while seeing his father Asghar alias Ranjha and brother Iqbal alias Bali in injured condition with six injuries on the body of his father Asghar and 20 injuries on the body of his brother Iqbal in the hospital i.e. at the place of occurrence, reacted and committed the occurrence and when all the aforementioned factors are taken into consideration collectively, it constitutes mitigating factor for taking leniency in the matter of awarding sentence. Therefore, while exercising caution, sentence of "death" awarded to Afzaal alias Phali (appellant) by the trial Court is converted to "Imprisonment for Life" under Section: 302(b) P.P.C; however, order passed by trial Court regarding payment of compensation by the appellant to the heirs of the deceased and in respect of imprisonment in default thereof, are maintained. Benefit under Section: 382-B, Cr.P.C. will be given to the appellant.

8. In view of above, Criminal Appeal No.15845/2022 is dismissed with partial modification/reduction in sentence of the appellant as mentioned above. Resultantly, death sentence awarded to Afzaal alias Phali (appellant) is NOT CONFIRMED and Murder Reference (M.R. No.66 of 2022) is answered in NEGATIVE. JK/A-37/L Sentence modifie