2023 PLP 1568 (SCMR)

SARDAR TARIQ MASOOD, J.

Criminal Miscellaneous Application No.2034/2017

For reasons set out in the application for condonation of delay, the same is allowed and the delay of 514 days in filing of the petition is condoned. Jail Petition No.816/2017

2. The petitioner Maskeen Ulah along with co-accused was tried in case FIR No.233/2004 dated 24.12.20021, registered at Police Station Wan Bachran, District Mianwali, under sections 302/34 of the Pakistan Penal Code (P.P.C.). After a full-fledged trial, vide judgment dated 27.01.2012, the petitioner was convicted and sentenced under section 302(b), P.P.C. for committing qati-i-amd of Fateh Sher and sentenced to death. He was further directed to pay Rs.200,000/- as compensation to the legal heirs of the deceased in terms of section 544-A of the Code of Criminal Procedure (the Code). Appeal filed by the petitioner before the High Court was dismissed, vide impugned judgment dated 16.05.2016, however, his death sentence was altered to that of imprisonment for life. Hence, instant jail petition for leave to appeal.

3. After hearing the learned counsel for the petitioner, learned Prosecutor General and counsel for the complainant we observe that this occurrence has taken place in a broad day light that too, at a place where certain shops were also available and the place of occurrence as well as the time of occurrence has not been disputed, so it cannot be said that the occurrence was un-seen as argued by the learned counsel for the petitioner. The occurrence took place at 5:15 p.m. and after the occurrence, it was the priority of Ghulam Muhammad (PW-6) and Sher Muhammad (PW-7) being father and brother of the deceased to shift the injured/deceased to the hospital, but he succumbed to the injuries on the way. Thereafter, they brought back the dead body to their house then complainant proceeded to the Police Station which was at a distance of 21 kilometers away from the place of occurrence and lodged the report at 8:00 p.m.; so there is no conscious delay in lodging the FIR, as prior to that the anxiety of the close relatives was to make effort to save life of their nearer one. The promptness of the FIR also eliminates the chance of consultation and deliberation. It is also a circumstance that after registration of the FIR, the police party again travelled back to the house of the complainant, where dead body was lying. The inquest report and injury statement was prepared there and thereafter dead body was dispatched to the hospital where on the same night at 5:00 a.m. the postmortem was conducted. So any delay in conducting the postmortem is also explained from the circumstances mentioned above, especially when Police Station was at a distance of 21 kilometers from the place of occurrence. The ocular account consists of statements of Ghulam Muhammad and Sher Muhammad, PWs. 6 and 7, respectively who although were close relatives of the deceased but they have no motive to falsely implicate the petitioner in this case. They remained consistent on each and every material point and despite cross-examination their testimonies could not be shattered. It is a circumstance that they made statement against the petitioner after about more than five and half years of the occurrence and minor discrepancies which, pointed out by the learned counsel for the petitioner, are bound to occur after such a long span of time. Both the witnesses gave details of the occurrence and also clarified the manner in which the petitioner along with co-accused Noor Khan attacked upon the complainant and it was the petitioner who fired three shots upon the deceased.

4. Although the witnesses being close relative are not expected to let off the real culprit and involve the petitioner in this case falsely, especially, when it was not even suggested that they have any enmity, animosity or reason to falsely implicate him in this case. From the testimony of both the witnesses it is quite clear that they are truthful and reliable witnesses. Both the Courts below rightly appraised and re appraised the entire evidence of the ocular account and rightly found both the witnesses of the ocular account, truthful and reliable. We, on our own independent evaluation of evidence are not able to differ with such conclusion.

5. The ocular account is fully supported by the medical evidence. The duration given by the doctor is also coincide with the time of occurrence. According to the witnesses, Maskeen Ullah fired three shots upon deceased Fateh Sher and the doctor also found three entry wounds on the person of the deceased, so the medical evidence fully support the ocular account which otherwise is truthful and reliable. As the brother-in-law of the petitioner was tried, so registration of the case against him was well in the knowledge of the petitioner but he opted to abscond and remain absconder. His non-bailable warrants (Exbt.PC) and proclamation (Exbt.PD) were issued by the competent Court and he ultimately was declared as proclaimed offender. This willful and unexplained abscondence fully corroborates the ocular account as he did not give any plausible explanation of such long abscondence.

6. Along with the petitioner, his brother-in-law Noor Khan was also involved in the FIR but he was acquitted of the charge during the earlier trial. The argument of learned counsel that as co-accused Noor Khan was acquitted, hence the petitioner also deserve the same relief, has no force because we have gone through the judgment of the Sessions Court with regard to Noor Khan and observed that the prosecution witnesses were not dis-believed and he was acquitted only on the ground that he had not caused any injury to the deceased and benefit of doubt was extended to him. So no benefit can be extended to the petitioner for acquittal of his co-accused who did not cause any injury to the deceased or made effective or ineffective firing at the place of occurrence, rather it was alleged that he was empty handed; hence, no benefit can be extended to the petitioner for the acquittal of co-accused.

7. Learned counsel for the petitioner tried to convince us that while sitting on the seat of Tractor, the injury could not be caused to the deceased at his hack but it was brought on record, during cross-examination, that the seat of Tractor was in one level and there were no edges or back of the said seat, so in that eventuality, injury could be caused even when the deceased was seated. The argument of the learned counsel that why the clothes of the injured witnesses were not stained with blood, has no force, because in that eventuality, even the investigating officer never took into possession the blood stained clothes of the witnesses.

8. Both the Courts below after appraisal and re-appraisal of the entire evidence rightly came to the conclusion regarding guilt of the petitioner and we, on our own independent evaluation of evidence, fully agree with the conclusion drawn by the Courts below. Consequently, this petition is dismissed and leave declined. Criminal Petition No.775-L/2016

9. Malik Sher Muhammad, the eye-witness of this occurrence, who is real brother of the deceased and son of Ghulam Muhammad complainant, has filed this petition for enhancement of sentence of Maskeen Ullah (Respondent No.2). We observe that the High Court while taking into consideration that the motive was not established by the prosecution; and that the crime empties were not recovered from the place of occurrence and there is no positive report of Forensic Science Laboratory, mitigate the sentence of the petitioner from death to life. When confronted, learned counsel for the petitioner admitted that the above mentioned two circumstances are recognized mitigating circumstances; however, he contend that motive was established but we observed that not a single eye-witness of the motive was ever produced, even the ladies who were teased by respondent No.2 were not produced, even no report was lodged in the Police Station and the High Court rightly disbelieved the motive. The reasons given by the High Court while mitigating the sentence of Maskeen Ullah are well recognized for mitigation. Consequently, this petition having no merit is hereby dismissed. MWA/M-35/SC Petition dismissed.