2005 PLP 509 (YLR)

default to further undergo six month S.I. All his sentences were to concurrently. He was also benefit of section 382‑B, Cr.P.C.

2. Sarfraz Ahmad petitioner‑complainant has filed criminal Revision No.796 of 2001 for enhancement of his sentence from imprisonment to death.

3. As both these matters have arisen out of one and the same judgment and under common set of facts, hence are being disposed of by this single judgment.

4. The detailed facts of the case have been incorporated in the impugned judgment. I therefore, refrain to repeat the same here. The same may be read as part of this judgment.

5. On conclusion of the trial learned trial Court has convicted and sentenced him as mentioned above.

6. Briefly the facts relevant disposal of the same are that the appellant, was tried under sections 302/337‑A(ii), 343/148/149/365, P.P.C. in the above mentioned case for on the night between 5/6‑7‑1994 abducting the deceased Khalid Sarfraz from his house and thereafter subjecting him to torture at different places and as a result whereof he died and thus committed his Qatl‑e‑Amd. He pleaded not guilty to the charge.

7. The learned trial Court in his conviction and sentence has relied upon the ocular account corroborated by the medical evidence and the circumstances of his absconsion and the evidence of the Investigating Officer.

8. It may be mentioned here that he had taken the plea of alibi in his defence. The learned trial Court did not believe his such plea and instead relied upon the above mentioned pieces of evidence produced by the prosecution.

9. It has been argued on the behalf that he is not named in the F.I.R. that there is unexplained delay of 24 days in lodging the F.I.R. which heavily recoiled on the veracity of the version of the eye‑witnesses; that there is inconsistency in between the ocular and the medical evidence; that no doubt he had absconded but his was mainly due to his involvement in the murder case of the deceased and in such situation he could have legitimate apprehension of his arrest and thus such circumstances could not be used against him in his conviction; and that the investigation in this case was absolutely dishonest and hence this circumstances or piece of evidence has wrongly been relied upon by the learned trial Court against him.

10. As against the same, the learned counsel for the State assisted by the learned counsel for the complainant has supported the impugned judgment saying that the ocular account in this case is independent and worth‑placing reliance; that the medical evidence has fully corroborated the ocular evidence; that the abscondance of the appellant was the factor in forming view of his involvement in the matter and it was rightly so; that the testimony of the 1.0 was also a strong circumstances to be taken into consideration against him; that there is explanation of delay in lodging the F.I.R. and that the prosecution evidence on record had fully established his guilt in the matter.

11. However the learned counsel for the complainant‑petitioner (in revision petition) has submitted that the sentence of imprisonment for life of the appellant ma be enhanced to death and also the amour, of compensation payable by him to the legal heirs of the deceased to a reasonable extent.

12. I have carefully considered the submissions made by both the sides with the help of available record.

13. As said above, that the prosecution in support of it's case against him has relied upon ocular account, medical evidence, his absconsion and the testimony of the Investigating Officer.

14. The ocular account has been furnished by Sarfraz Ahmad Khan (P.W.1), Muhammad Ashraf Baig (P.W.2), Altaf Ahmad Khan, (P.W.3), Muhammad Ijaz Butt (P.W.4) and Muhammad Akram (P.W.5). They have narrated that how the deceased was taken away by the police officials from his house and then he was subjected to torture at different places and the same ultimately led to his death.

15. Sarfraz Ahmad is the real father of the deceased. He has narrated that on the night between 5/6‑7‑1994, the deceased and Muhammad Ijaz Butt, who was friend of his deceased son were taken away by the police from his house and detained at different places and during the same they subjected him to torture resulting into his death. He no doubt is the father of the deceased but this circumstance itself is not sufficient to discredit him in his deposition. He has further stated that the appellant was member of the raiding party, who had taken away both the deceased and Ijaz Butt with them from his house. He seems to have no background of hostility or enmity with the appellant.

16. Ijaz Butt has given the detail of incident, which ended in the death of the deceased. He is a person, who was taken away by the police party along with the deceased and they both according to him were subjected to torture at different places. He has given full account of such affair. It may be mentioned here that the death of the deceased in the police custody is an admitted fact although the appellant has taken plea that he was not present among those police officials, who had taken the deceased and Ijaz Butt in their custody. Hence, no such discussion is required in respect of the testimony of P.W. as it is only to be seen that if the plea of the appellant has spelt out from the circumstances in the evidence on record. Muhammad Altaf P.W. has also narrated the incident and he has also named the appellant as one of the persons, who had subjected the deceased to torture. All these P.Ws. appear to have absolutely no ill‑will towards him. So their testimony was reliable and they rightly were relied upon by the learned trial Court.

17. As regards the plea of the appellant that he in those days was suspended and had not participated in the arrest and detention of the deceased and put him to torture but the same is not worth believing. He in order to substantiate his such plea has brought on record Fauji Missal. It was in order to show that during the days of incident he was suspended and so there was no occasion with him to have joined his colleagues in arrest and detention of the deceased. He in this regard has relied upon the evidence of D.W.2. He (D.W.2) though has stated that in the days of occurrence, he was suspended but it is not evident from the same that he either was ordered to leave the Police Station or report at the Police Lines. So his evidence does not suggest that he B really was not present at the Police Station during the days of incident.

18. Besides than this, he in the investigation by an officer of the rank of S. P. was found guilty in the matter. He appears to have pleaded alibi before him but he did not find it to be correct. There is nothing in his evidence to say that his investigation was biased. He why will wrongly challan an innocent person of his force/department. So the plea taken by the appellant was rightly rejected by the learned trial Court.

19. It may also be mentioned here that he has attributed his involvement in the case to hostility with one Kiramat Ali Khokhar, Ex. Member Provincial Assembly and that the complainant party had acted under his influcence. The son of the deceased was done to death and so why he will falsely involve him for the said M.P.A. is not understandable. This version too seems to be without any substance.

20. The medical evidence has lent full corroboration to the ocular account. The date of deceased in police custody is an admitted fact.

21. The evidence of Dr. Muzaffar Hafeez (P.W.11) who has conducted the Postmortem Examination on the dead body of the deceased has established his death to have occurred due to physical violence. He had found the following injuries on the same:‑‑ (1) Contusion oval in shape, bluish colour 14 x 10 c.m. on left buttock. (2) Contusion oval in shape, bluish colour 22 x 10 c.m. on right buttock. (3) Multiple contusion transverse and parallel, bluish in colour in an area 10 x 9 c.m. across the sole of left foot. (4) Multiple contusion transverse and parallel, bluish in colour in an area of 8 x 7 c.m. across the sole of right foot. The nature of the injuries suggest that the deceased was subjected to torture. There has been shown nothing from the appellant's side to say that the medical evidence is not in line with the ocular account. The medical evidence has corroborated the ocular account and the learned trial Court has rightly held so.

22. Admittedly, the appellant had absconded after the incident. He was declared proclaimed offender. The explanation offered from his side for the same is that he apprehended his arrest in the murder case of the deceased and so opted to flee away in order to avoid the same. This is no satisfactory explanation of his absconsion. This circumstance, thus has rightly been taken as corroborative to the version of the prosecution against him.

23. It has come in the evidence that for many days after the abduction of the deceased from his house, his whereabouts were not known to the complainant party and the complainant had been requesting the police officials to let off his son as he is innocent but he could not succeed in the same and ultimately his son died in the custody of the police. So there is some explanation of delay in lodging the F.I.R. with the police. Even otherwise, such delay in the instant case is hardly of any material consequence as the deceased was detained by the police party in their custody and to get registered the case against them could not be an easy thing. So the delay, if any, in lodging the report to the police has no adverse consequence to the prosecution case.

24. From the above discussion, I am constrained to hold that the learned trial Court has rightly and properly appreciated the evidence on record and was right in convicting and sentence the appellant as mentioned above.

25. However, as regards the amount of compensation payable by him to the legal heirs of the deceased, the same has been found to be quite inadequate in the facts and circumstances of the case. I, therefore, enhance the same to Rs.1,00,000 from Rs.50,

000. In case of default, the same consequence shall follow as described in the impugned judgment.

26. The appeal, therefore, having no merit is dismissed and Criminal Revision (No. 796 of 2001) is partly allowed with the above enhancement in the amount of compensation payable by the appellant to the legal heirs of the deceased as directed by the learned trial Court and the same is dismissed to the extent of request for enhancement of his substantive sentence. N.H.Q./S‑760/L Order accordingly.