2010 GBLR 139 (PLP)

MUHAMMAD YAQOOB, J.

This appeal is filed by leave of the Court against the judgment dated 23-6-2009, passed by the learned Division Bench Chief Court Gilgit-Baltistan. In pursuance whereof Criminal Appeal No. 17 of 2008 filed by petitioner/appellant has been dismissed and sentence of death awarded to him by Additional Sessions Judge Gilgit, vide Judgment, dated 23rd August, 2008 was confirmed. The prosecution case commences as that on 7-8-2002 at about 08:00 hours F.I.R. lodger who was the driver of the vehicle/jeep of one Mr. Muhammad Ghayas s/o Rehmat Deyar r/o Chakkarkot, had departed towards Hurkoos Baroo, in order to bring the wood of Mr. Shah Zaib Alam s/o Muhammad Aman. At the time of departure besides Mr. Shah Zaib Alam (deceased), accused Syed Muhammad s/o Syed Khan r/o Sabil Jaglot aslso boarded on the vehicle, on the way accused Syed Muhammad got down at village Jaglote. F.I.R. lodger alongwith Shah Zaib Alam and Juma Khan reached at Hurkoos Baroo, loaded the fire wood and returned. On the way back Juma Khan was on the front seat of the vehicle, whereas Shah Zaib Alam was sitting on the load. When we reached at Hurkoos Koi, we heard the voice of an explosion and we thought that a tyre might have burst, in the meantime we heard another voice of an explosion, resultantly stopped the vehicle. We saw Mr. Shah Zaib Alam was fallen from the vehicle and lying on the hilly side of the road, and also found accused Syed Muhammad armed with shot gun behind a stone. We began to proceed towards the accused but sharply he loaded the gun and threatened us to open fire if would not stop to follow him. Thereafter accused ran away towards the village. We returned to the injured Shah Zaib Alam and saw that the fire shots hit him at his forehead, he died instantly at the spot. We off-loaded the vehicle and took the dead body to the police station jaglote. I did not know about the motive. The matter was reported to the police station, after registering the F.I.R. the dead body of the accused was sent to the Civil Hospital for its postmortem examination. The Investigating Officer went to the spot of occurrence on 8-8-2002 and prepared the site plan as well as the site inspection note. The Investigating Officer also recorded the statements of the eye-witnesses including the other P.Ws. During the investigation of the case on 11-8-2002, police recovered the weapon of offence at the pointation of accused and resultantly F.I.R. Exh. P.W.12/A and recovery memo Exh.PW 3/A came into being. The prosecution submitted their report under section 173, Cr.P.C. in the Court of concerned Judicial Magistrate. The learned Judicial Magistrate referred the same under section 190(2) of Cr.P.C. to the Court of Sessions Judge Gilgit for trial of the case, who after taking recognizance entrusted the same for trial on 24-8-2006, to the learned Additional Sessions Judge Gilgit. Statement of 12 P.W's. have been recorded. After examination of P.W's. the prosecution closed its evidence on 21-5-2008. Statement of the accused under section 342, Cr.P.C. also recorded. "Leave to appeal was granted by this court vide order dated 13-9-2009, which is reproduced herein below to appreciate legal and factual aspects of the controversy." "The learned counsel with reference to the contradiction in medical evidence and ocular account contended that motive was also doubtful, therefore the conviction was not sustainable and in any case it was not a case of capital punishment. After hearing the learned counsel and perusal of record with his assistance, we being of the view that this is a fit case for re-appraisal of evidence, grant leave in this petition. The notice is accordingly issued to the State as well as the complainant with direction that appeal will be heard on present record." The learned counsel for the petitioner after pulling the prosecution evidence to pieces, has sought the acquittal of the petitioner on the basis of following arguments/points:- i. That the petitioner was booked in this case on a baseless charge. ii. That the prosecution story is neither probable nor plausible. iii. That the prosecution remained completely unable to prove the motive, as set up by the complainant, while lodging the F.I.R. iv. That all the witness are inter-related and interested witness. v. That the ocular evidence is self-contradictory. vi. That there is a seeming inconsistency between the ocular evidence and the medical evidence. Hence, the concurrent findings of the lower courts are against the law and facts of the record of the case, therefore, the concurrent findings of the courts below are liable to be set aside. The learned counsel for the petitioner further contended that the petitioner may be acquitted by setting aside the impugned judgment to meet the ends of justice. On the other hand the learned Advocate-General assisted by Haji Jamal Khan, Advocate, refuted the arguments put forward by the learned counsel for the petitioner and contending that it is a fit case for capital punishment. The veracity of the statements of the P. Ws.1 and 2 is very natural, confidence inspiring and independent. They further contended that the F.I.R. registered against the accused without wastage of single moment after the occurrence. The incident took place in the presence of independent reliable witnesses. The role of accused also been described by the witnesses and recovery of weapon of 12 bore shot gun has been effected by the police on the pointation of accused in presence of independent witnesses of the locality. Postmortem report also supports the version of the prosecution regarding death of the accused by fire injury. The prosecution has established and proved the guilt of the accused beyond any shadow of doubt. The lower courts have rightly convicted the accused and the conviction awarded by the lower courts is liable to be upheld. We have carefully examined the respective contentions of the parties in the light of the relevant provisions of law and the record of the case. We have also minutely perused the impugned judgment, after having gone the entire record of the case. It is felt that the prosecution case rests mainly on the ocular testimony of P.W. Barkat Jamil and P.W.2 Juma Khan. Besides the above ocular evidence the prosecution has brought on record some corroborative evidence like, recovery of weapon of offence Exh.PW-3/A, crime empties, Exh. P. W.7/A, blood stained shirt of the deceased, Exh. P. W.9/F, blood stained earth, Exh. P.W. 7/A and postmortem report Exh. P. W.11/A. The Pivotal question which needs determination is "whether the ocular evidence is contradicted by medical evidence" to probe into the important question we enlightened the evidence of P.W. Dr. Muhammadullah who has produced post mortem report Exh.P.W.11/A, as per its contents following Injuries were present on the dead body of the deceased Shah Zaib Alam. External Examination: i. There are four gun triggered entry wounds with blackish margins of right side of the neck. ii. Four gun triggered exit wounds with irregular margin on parietal region of the scalp. Multiple fractures of the parietal bone, was also seen. iii. Single gun triggered entry wound on Rt side of face with blackish margins. iv. Single gun triggered exit wound with irregular margins on left side of neck. HEAD AND NECK:- The brain substance of the deceased was treed and fragmented. CAUSE OF DEATH:- By observation and examination "Death is due to Haemorrhage and shock by Fire Arms Injury." The above mentioned postmortem report of the deceased conducted by Dr. Muhammadullah P.W.1 1 has given the cause of death and also pointed out fire shots received by the deceased. Statement of Dr. Muhammadullah has been recorded on 10-10-2007, he has verified the post-mortem report Exh. PW-11/A wherein it is mentioned that death is occurred due to Haemorrhage and shock by fire arm injury. All the fire arms injuries are on the vital part of body that is in head and neck. According to the site plan distance between the accused and deceased Shah Zaib Alam was, approximately eight steps. Blackening of wound corroborates this aspect of the occurrence that fire was conducted from a near distance. But the defence counsel failed to put the specific question regarding blackening of wound to the P.W. Dr. Muhammadullah, even it has not been bothered to put a question of suggestion in his statement regarding blackening of wounds, dia-meter and depth of the received wounds during cross-examination of the P.W.1 1 Dr. Muhammadullah, but the above mentioned crucial points have not pinpointed by the defence counsel before the lower courts. Therefore, there remains no space to take up these points in this leave to appeal. Moreover, in the cross examination of the P.W. Dr. Muhammadullah their above version has not shaken at all. A lengthy cross-examination has been made but the defence counsel has utterly failed to shatter the veracity and truthfulness of the witnesses. The other corroborative evidence in the statement of P.W.5 Sher Azam and P.W.6 Shah Alam, their evidence in short is that the accused Said Muhammad had levelled allegation that deceased Shah Zaib Alam had illicit relations with his niece. Further addendumed that he has personally witnessed while he gesticulate with his niece. Deceased Shah Zaib Alam approached P.W.5 and P.W.6 and requested them to settle the dispute between the accused and the deceased, but accused refused to accept the offer and counter claimed that in support of his allegation he himself took the oath. The prosecution has successfully strengthened the instant criminal case in the thick shadow of the statement of P.W.5 and P.W.6 and motive behind the crime. Defence has not denied this evidence of the prosecution rather, their stance was that both the P.Ws. Sher Azam and Shah Alam are closely related to the complainant party. At the time of recording the statement of accused under section 342, Cr.P.C. the specific questions was put forward to the accused regarding the evidence of P.W.5 and P.W.6 but accused simply answered that it is incorrect. Prosecution also brought some evidence regarding motive for alleged occurrence but the defence failed to meet the same. Even otherwise absence and weakness of the motive could not furnish a ground for acquittal of the accused. Accused in his statement recorded under section 342, Cr.P.C. has simply denied the evidence of prosecution. His main thrust was that all the P.Ws. are interested witnesses having close relations with the complainant party or otherwise enmity with the accused. He did not take any defence, refused to give his statement on oath, and refused to examine any defence witnesses. Therefore, accused has closed his own way of defence. Presence of accused on the place of occurrence is proved without any shadow of doubt, both the eye-witnesses Barkat Jamil and Juma Khan categorically stated before the Court, in presence of such evidence on record as simpliciter denial on the part of accused is not sufficient. In a case cited "Khurshid v. The State" (PLD 1996 Supreme Court page 305). In this judgment the Hon'ble apex Court has laid down the principle, that if the circumstantial evidence connects the accused, directly with the commission of the offence and place of occurrence is such a place where no witness was available and the accused had the exclusive knowledge about the incident, in such a situation a simpliciter denial on the part of accused will not be sufficient and accused should raise a plea of the nature which on being tested on the touchstone of probabilities warrants a reasonable hypothesis of his innocence. While in the instant case there is strong ocular evidence which directly connects the accused with the commission of the offence. From the perusal of prosecution evidence it reveals that at the relevant time of occurrence besides, the P.W. and P.W.2 the only other person present was the accused. In such a situation accused in order to defeat or create a reasonable doubt in the testimony of P.W. and P.W.2 was required to take such a plea, which creates a reasonable hypothesis of his innocence. The next question regarding determination is "whether the recovered weapon and crime empties have not been examined by the expert." The prosecution has examined P.W.3 and P.W.4, both the P.Ws. have verified the document and their signature/thumb impression on the recovery Memo. Admittedly P.W.3 Alif Khan and accused party have strained relations, but P.W.4 Hasil Khan, is an impartial witness of the Area, defence has failed to shake the testimony of P.W.4, both the P.Ws. have also identified the weapon of offence, as regard to the question of forensic report, it further reveals from the prosecution record that the gun and empties were sent to Lahore on 7-8-2002, for making an expert opinion. The weapon of offence along with empty shells received back, with the submission that the system of laboratory is out of order, however, it is an admitted fact that the cause of death is due to hemorrhage and shock, by fire arm injury. The Hon'ble apex Court has laid down the principle that; "When ocular evidence is confidence inspiring and court considers the witnesses to be truthful, merely on ground that medical evidence contradicts ocular account would not be sufficient to discard the ocular evidence." The statement of P.W. 1 and P.W. 2 is confidence inspiring and truthful as such the defence counsel did not collect a single iota of word after lengthy cross-examination which definitely benefited to the accused. After appreciating the persecution evidence this Court has come to the conclusion, that occurrence had taken place in broad daylight, First Information Report has been lodged without delay, therefore, question of false implication does not arise in the case. Eye-witness P.W. Barkat Jamil and P.W.2 Juma Khan had shown their presence on the spot of occurrence which was not disputed by the defence. Accused is directly charged in the F.I.R. with specific role. Ocular testimony of P.W. and P.W.2 is consistent and there. As no contradiction. Their, evidence is confidence inspiring. Motive for the alleged occurrence is proved on the record and mere relationship of P.Ws. Sher Azam and Shah Alam with the deceased r is no ground to discard their evidence. Appellant has been awarded death sentence with fine of Rs.2,00,000 on charge of murder. Normal penalty for offence of murder is death, but in appropriate cases where some extenuating circumstances are available, Courts have discretion to award lesser punishment of imprisonment for life. It is an admitted position, that both the parties were closely related and there existed no background of any previous enmity or deep rooted hostility between appellant and deceased. Minor contradictions in medical and other circumstantial evidence is available on record but cannot be discarded the evidence at all, these factors cumulatively make out a case for mitigation of sentence and lesser punishment of life imprisonment would meet ends of justice. The upshot of the above discussion is that we partly allow this appeal, converting the death sentence in to life imprisonment for the offence under section 302, P.P.C. along with benefit of section 382-B, Cr.P.C., the fine awarded to the petitioner is also reduced to Rs.1,00,000 (one lac) and in default of payment, he will undergo rigorous imprisonment for a term of one year. Rs.1,00,000 (one lac) shall be paid to the legal heirs of deceased Shah Zaib Alam under section 544, Cr.P.C. The same shall be recovered as arrear of land revenue against the moveable or immoveable property of the convict. Appeal partly accepted. File be consigned to record after due completion. N.H.Q./39/Glt. Sentence reduced.