2016 PLP 1 (YLRN)

SHAHID HAMEED DAR, J.

This criminal appeal is directed against judgment dated 08.03.2006, whereby the learned Additional Sessions Judge, Lahore convicted Abdul Razzaq (appellant) under sections 302(b) and 392, P.P.C. and sentenced him as under:-- I) Under section 302(b), P.P.C.: to imprisonment for life with the direction to pay Rs.2,00,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default whereof to undergo simple imprisonment for six months. II) Under section 392, P.P.C. to undergo ten years imprisonment with fine of Rs.50,000/- or in default whereof to undergo simple imprisonment for one year. The benefit of section 382-B Cr.P.C. was however extended to him.

2. The prosecution story as narrated by Ghulam Hussain (complainant/PW-1) in FIR (Exh.PA/1) is that he along with his real brother Bakhtiar Hussain and other family members visited his relative Dr. Ghulam Sarwar on 08.08.2002, who lived at 16-A, Rasool Park Shama Road Samanabad Lahore; it was at about 12.00 noon, when four unknown persons, who were armed with pistols and dagger forcibly entered Omair-clinic, where one of them, brandished his pistol at Dr.Ghulam Sarwar and the other one, at Dr. Sobia, the wife of Dr.Ghulam Sarwar and pulled-off a gold-locket, weighing two tolas from her neck; the third accused attempted to enter the adjacent house and faced resistance from Muhammad Siddique, whereon he opened straight firing at him, which hit right side of his chest and right forearm; he fell onto the ground badly wounded; the burglars, in this noisy situation, attempted to flee the spot, but one of them (appellant) collided against the corner of an iron-rack and got severely injured; he was overpowered by Dr.Ghulam Sarwar and his servant Muhammad Saeed, with a pistol in hand; the occurrence was witnessed by Ghulam Sarwar, Bakhtiar Hussain and Muhammad Saeed; he and his companions would identify the accused if they saw them again. Muhammad Siddique succumbed to the injuries, when being shifted to Services Hospital Lahore by him and Dr.Ghulam Sarwar.

3. Muhammad Ansar SI (PW-12) on getting information about the incident reached the place of occurrence, where he recorded statement (Exh.PA) of Ghulam Hussain (complainant/PW-1), at 12.30 p.m. Bakhtiar Hussain (PW-5) and Muhammad Saeed (PW-4) produced before him the injured robber (appellant) and his loaded pistol .30-bore, which he unloaded to recover two live bullets from it; as accused failed to produce any licence of the said weapon, therefore, he took it into possession through memo of recovery (Exh.PC). He despatched the complaint (Exh.PA) to the police station through Lal Shah 12267/C for registration of case, on the basis of which Amanat Ali ASI (PW-13) drew up formal FIR (Exh.PA/1) at 12.45 p.m., the same day.

4. Muhammad Ansar SI (PW-12) was still present at the place of occurrence, when Inspector Farrukh Riaz (P.W.8) reached there and took over the investigation of this case. He inspected the spot, prepared visual site-plan thereof (Exh.PH); collected blood from the place of occurrence; examined the dead body of the deceased, prepared injury statement (Exh.PJ), the inquest report (Exh.PK) and despatched it to the mortuary under the escort of Maqsood Ahmad 14007/C PW (not produced) for autopsy thereon; he secured last worn clothes of the deceased (P1 to P4) through the seizure memo, Exh.PB, which were produced before him by the said constable. He mentioned in his testimony that he arrested Abdul Razzaq (appellant) in injured condition at the spot on day one. (This fact is not borne out from the record, as he after getting the accused medically examined deferred his arrest, which fact may be found from case diary No.1, having been scribed by him on 08.08.2002.) He (PW-8) got prepared site plan in-scale in duplicate (Exh.PG & Exh.PG/1) about the place of occurrence, by Hameed-ud-Din Chishti, draftsman (PW-7). The investigation of this case was taken over by Nasir Ali Shah, S.I. (PW-9) on 25.8.2002. He arrested the accused/appellant on 27.8.2002; got issued non-bailable warrants of arrest of the runaway accused, Adnan, Muhammad Akram and Muhammad Yaqoob; he also obtained their proclamations on 14.9.2002, which he handed over again to Mansab Ali 1503/C (P.W.6), for execution. Muhammad Ansar SI/SHO (P. W.12) prepared challan under section 173, Cr.P.C. against the appellant and under section 512, Cr.P.C. against the runaway accused, and submitted it before the court concerned for their trial as per law.

5. The accused (appellant) on indictment pleaded not guilty and claimed a trial. The prosecution produced thirteen witnesses, namely, Ch.Ghulam Hussain (PW- I), Dr.Sobia (PW-2), Dr.Ghulam Sarwar (PW-3), Muhammad Saeed (P W-4), Bukhtiar Hussain (PW-5), Mansab Ali 1503/C (PW-6), Hameed ud Din Chishti, draftsman (PW-7), Farrukh Riaz Inspector (PW-8), Nasir Ali Shah SI (PW9), Dr.Muhammad Khalid (PW-10), Dr.Muhammad Abaidullah (PW-11), Muhammad Ansar, S.I. (PW.12) and Amanat Ali, S.I. (PW-13) during trial, so as to prove its case against the accused. After the prosecution case was pronounced closed by the public prosecutor, the accused/appellant was examined under section 342, Cr.P.C., whereby he professed his complete innocence in the matter and denied all the charges against him as false. His contention in reply to question, "why this case against you and why the PWs have deposed against you", read as under:-- "Police have involved me in a false case. I was not present at the spot, the PWs have not deposed against me. Witnesses are closely related to the complainant party. Place of occurrence is a thickly populated area and police has not cited any independent PW against me." He did not, however, opt to depose under section 340 (2) Cr.P.C. nor he adduced any evidence in defence. The learned trial judge on conclusion of the trial held him guilty of the charge and sentenced him in the mentioned terms.

6. Learned counsel for the appellant seemed little interested in complete exoneration of the appellant in this case, when he argued that the appellant merited acquittal against the charge of murder of Muhammad Siddique, in view of exonerating statements of PW-1 to PW-5 in his favour, but not for the offence of robbery punishable under section 392, P.P.C. He has further contended that the appellant remained in jail for about nine years before his sentence was suspended by this court on 28.10.2011, as a result of which he was released from the prison on 31.10.2011; the appellant did not actively participate in the alleged occurrence of the robbery rather he fell victim to the suspicion of the complainant-party, who callously tortured him, once they caught hold of him; the police got the appellant medically examined on 08.08.2002 by. Dr. Muhammad Abaidullah (PW-11), who found 11 blunt weapon injuries on various parts of his body vide MLR Exh.PL; the appellant had already served substantive part of his sentence for the offence of robbery before he was released on bail by way of suspension of his sentence, therefore, sentence already served by him may be deemed sufficient to decide this case.

7. In rebuttal to the above, learned Deputy Prosecutor General Punjab has contended that the appellant was caught red-handed being armed with pistol at the spot and he deserved no leniency as he and his runaway co-accused murdered innocent Muhammad Siddique, when he put up resistance against them during the occurrence of robbery; the appellant's case may not be segregated from the rest of his co-accused, as they all conjointly committed the crime.

8. The arguments of the learned counsel for the parties have been heard at length and the relevant record minutely gone into with their able assistance.

9. The prosecution witnesses, especially Ch. Ghulam Hussain (PW-1/ Complainant), Dr. Sobia (PW-2), Dr. Ghulam Sarwar (PW-3), Muhammad Saeed, the security guard (PW-4) and Bakhtiar Hussain (PW-5) made every possible effort to dent the prosecution case as maximum as they could, but for the skillful cross-examination by the public prosecutor. They all contended in their testimonies that they had compounded the offence and forgiven the accused, Abdul Razzaq (appellant) hence they had dropped the idea of deposing against him. Learned law officer got them declared 'hostile' one after the other, by the learned trial court and succeeded in establishing the presence and participation of the appellant in the occurrence. He could not however establish that the appellant had aimed at or fired at Muhammad Siddique (deceased) or he had snatched any costly item from the victims, Dr. Sobia (PW-2) and Dr.Ghulam Sarwar (PW-3). The venue of the occurrence was the clinic of Dr.Ghulam Sarwar and Dr. Sobia, which was connected with their residential house. Muhammad Siddique (deceased) was real father of Dr. Sobia (PW-2) and father-in-law of Dr. Ghulam Sarwar (PW-3). One of the robbers, not the appellant, almost forced his way into the adjacent house and met the resistance from ill-fated Muhammad Siddique, who paid the price of bravery and lost his life at the hands of the said intruder. The appellant was nowhere near the said co-robber, who probably did it on his own, when he attempted to enter the said house and opened terminal firing in the process, without letting his co-accused have the slightest idea about his intention. None of his co-accused followed him toward the said house and he virtually did it single handedly. The above said five prosecution witnesses did not accuse the appellant of sharing common intention with his co-accused who disposed of Muhammad Siddique by his callous act.

10. So far as the appellant's participation in the occurrence of robbery is concerned, it stood more than established, when we go through the statements of the said hostile witnesses. Even the line of cross-examination of the defence on the said PWs suggested that the occurrence of robbery and appellant's involvement therein had not been seriously challenged by them. An accumulative impression arises from the record that the prosecution did its level best to absolve the appellant of the charge of murder and on the other hand, the defence did little to get rid of the charge of robbery. The record would tell that both the sides succeeded in their respective bids, as charge of robbery against the appellant stood proven beyond reasonable shadow of doubt but not the charge of murder against him. Therefore, his conviction and sentence under section 302(b), P.P.C. as recorded by the learned trial court cannot be sustained, which is resultantly set-aside and he is acquitted of the charge thereunder.

11. The rule is not inelastic that the statement of a hostile witness, if it otherwise rang true should casually be brushed-aside or not to be given any serious thought to. The partly believable segments of their (PW-1 to PW-5) testimonies cannot be overweighed by worth rejecting parts thereof. Applying this particular principle of the law, it can safely be held that the prosecution had succeeded in bringing home the guilt of the appellant, qua charge under section 392, P.P.C. to the hilt, as he had been caught red-handed by the prosecution witnesses in injured condition, with a pistol in hand, hence his conviction in relation thereto is unexceptionable, which is hereby maintained.

12. The appellant was arrested in this case on 27.8.2002 and released on bail from the Central Jail Lahore on 31.10.2011 in pursuance of this court s order dated 28.10.2011. Learned trial court handed down to him ten years rigorous imprisonment under section 392 P.P.C. with payment of fine of Rs.50,000/- in default whereof he was ordered to undergo another term of one year simple imprisonment. The Superintendent Central Jail Kot Lakhpat Lahore was directed through the learned law officer (Deputy Prosecutor General Punjab) of this court to submit report as to sentence served by the appellant, before he was released from the prison on 31.10.2011, with detail of remissions earned by him till then. The first report submitted by him contained some errors, therefore he was directed to submit fresh report with accurate details, in response to which he has tendered an error-free report, which reveals that the appellant was lodged in the said jail on 10.09.2002 as an under-trial prisoner of case-FIR No.249/2002 (supra) and he was released on bail by way of suspension of his sentence on 31.10.2011. The break-up of his stay in jail, as contained in the said requisite report indicates that he remained jailed as under-trial prisoner for three years, five months and twenty-five days and as a convict for five years, seven months and twenty-three days, with remissions earned, spanning over two years, one month and fifteen days, bringing the tally of sentence served by him to eleven years, three months and three days, which meant that he had already served the entire (substantive) sentence of imprisonment, as handed down to him by the learned trial court under section 392, P.P.C. So far as sentence of fine, Rs.50,000/- inflicted on him through the impugned judgment is concerned, it still remains to be paid by him. He shall therefore, have to pay the fine-amount, otherwise be ready to face six months simple imprisonment instead of one year simple imprisonment, as mentioned in the impugned judgment. He is afforded four months-time to pay the fine, failing which he would be arrested and sent to jail to serve simple imprisonment in mentioned terms. This appeal is partly allowed/ dismissed. MH/A-132/L Order accordingly.