2026 P Cr (PLP)

Foreword: Chaudhary Khalid Rasheed, J.

The supra titled appeal has been directed against the judgment passed by the learned District Court of Criminal Jurisdiction, Muzaffarabad dated 28.07.1999, qua accused Aurangzeb Siddiqui son of Muhammad Younus has been convicted under section 302-APC and was awarded death sentence as Qisas whereas the reference has been sent by the trial Court for confirmation of death sentence of the convict. Facts which culminated into filing of the captioned appeals and reference briefly stated are, complainant Mian Muhammad Hassan filed a written application Exh.PA at Police Station Kahori Muzaffarabad on 30.07.1997, wherein it was reported that his father Mian Fazal Ellahi resident of Village Batkarah Tehsil Balakot District Mansehra used to visit Sarian, Doba, Sehri, Bhairi and Datura for the purpose of spiritual guidance and had also contracted marriage from village Sarian constituency No.2 Muzaffarabad 24 years ago. His father used to visit said areas for two to three months every year hence, was on routine visit of the said areas in this year for last one month and was residing in the house of Haji Muhammad Miskeen resident of of Baisri for two/three days. Today on 30.07.1997 at 2.30PM he was conducting ablution for Zohar Prayer in front of house of Haji Muhammad Miskeen in Nala Lohidandi, in the meantime Aurangzeb Siddique while armed with 12 bore rifle reached there by targeting father of the complainant fired which hit the deceased at his neck who succumbed to his injuries on the spot. The occurrence was witnessed by Haji Muhammad Miskeen, Nazir Ahmed, Gulzaman caste Gujjar resident of Sairi Bhairi. The motive behind the occurrence illuminated that the accused was against the master and disciple relationship. On this report an FIR No.37/1997 was registered at Police Station Kahori in offences under section 302 on 30.07.1997. During investigation section 13/20/65-AA was inserted. The police after formal investigation submitted report under section 173 Cr.P.C. before the trial Court on 27.09.1997. The statement of the accused under section 265-D Cr.PC. was recorded on 13.11.1997, accused person claimed innocence and refuted the allegations, whereupon the prosecution was directed to lead evidence in order to prove the guilt. Upon completion of prosecution evidence, the statement of accused person recorded under section 342 Cr.P.C. on 30.08.1999, he denied the prosecution evidence, claimed innocence but opted neither to produce evidence in defence nor to record his statement. At the conclusion of trial, the learned Court below convicted the accused person under section 302 APC and sentenced him to death as Qisas, hence, the captioned appeal as well as reference. STANCE OF THE CONVICT-APPELLANT: The learned counsel for the convict appellant at the very outset zealously argued that as the statement of the convict appellant under section 340(2) Cr.P.C. has not been recorded which vitiates the entire trial of the case, thus, the case is liable to be remanded to the trial Court for completion of the trial in accordance with law. He vehemently argued that the accused has not committed the alleged occurrence rather has been substituted with mala fide intention to save the original culprit. The learned counsel stated that the prosecution story has been manipulated as it is established from the statements of alleged eye-witnesses that they were not present at the scene of occurrence. The learned counsel claimed that there was no animosity existed between the deceased and the convict appellant. The learned counsel averred that the prosecution alleged a specific motive in the FIR but failed to substantiate the same through evidence whereas the post-mortem report and injury form contradicts the ocular evidence because as per medical reports the deceased also received injury at his arm but the statements of eye-witnesses are silent in this regard. The learned counsel further submitted that the Court below has relied upon the suggestions put to the prosecution witnesses by the defence counsel which are against the principle of criminal justice because prosecution is always required and expected to stand on its own legs and has to prove its case beyond shadow of reasonable doubt, thus any suggestion given by the defence counsel cannot be pondered as confession or made basis for conviction of an accused. The learned counsel further submitted that as per the contents of the statement of complainant he was informed by one Muhammad Suleman, however, Muhammad Suleman has not been produced as witness of the occurrence, thus the prosecution withheld a material evidence which is always considered a strong mitigating circumstance. The learned counsel also argued that the police officer who took the body for post-mortem report and the witnesses of recovery of blood stained clothes of the deceased have also not been produced in support of the prosecution alleged stance, he further pressed into service that the recovery of weapon of offence is fictitious because the same was shown to have been recovered on 31.07.1997 whereas on the remand form dated 01.08.1997 the police mentioned that recovery is yet to be made. The learned counsel further argued that as per the prosecution version the empty of the 12 bore rifle was recovered from the place of occurrence but the same was not sent for chemical examination in time rather was sent after alleged recovery of weapon of offence which also appears to be maneuvering by the investigating agency. He submitted that as the prosecution has withheld material evidence thus, adverse inference is liable to be drawn that if the same was produced that goes against the prosecution version. He also contended that as the documentary evidence did not support ocular evidence and both contradict each other, hence a serious doubt is created in the prosecution version, therefore the benefit of the same was liable to be extended in favour of the accused which would result into his acquittal but the Court below failed to appreciate the relevant ticklish evidence in its true perspective by ignoring the major contradictions in the prosecution evidence awarded the extreme penalty of Qisas which is not entails to be sustained. The learned counsel placed his reliance on 2016 SCR 373, 2024 PCr.LJ 455 and 2024 PCr.LJ

873. REFUTATION OF THE RESPONDENTS: The learned counsel for the complainant supported the impugned judgment on all counts by submitting that the allegation levelled against the convict-appellant has been substantiated through convincing and trustworthy evidence whereas the minor discrepancies pointed out by the learned counsel for the convict-appellant are natural, hence are liable to be ignored, thus requested for dismissal of the instant appeal. The learned AAG adopted the arguments advanced by the learned counsel for the complainant. We have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution. COURT OBSERVATIONS AND RELEAVANT LAW: According to FIR, convict appellant fired with 12 bore rifle by targeting deceased which landed at the left side of his neck who succumbed to his injuries and expired on spot. As per prosecution version, the occurrence was witnessed by Haji Muhammad Miskeen, Nazir Ahmed and Gul Zaman. The prosecution in order to prove the guilt of the accused produced Haji Muhammad Miskeen, Gul Zaman and Nazir Ahmed all the three eye-witnesses of the occurrence. The witnesses are unanimous on the point that on the day of occurrence when the deceased was doing ablution on a stream in front of the house of Haji Muhammad Miskeen, convict-appellant Aurangzeb Siddiqui reached, by targeting the deceased with an intention to kill fired directly with a 12 bore rifle which hit him at the left side of his neck who succumbed to his injury and died on the spot. The presence of the eye-witnesses is natural as it is established from the record that prosecution witnesses and the deceased had the relationship of master and disciple and were going to offer Zohar prayer. The defence despite lengthy and hectic cross-examination failed to shake the intrinsic value of their evidence or extricate anything which may be termed as harmful to the prosecution version, thus after deep appreciation of testimony of the eye-witnesses, it can safely be concluded that the prosecution version is proved through the direct and reliable evidence of the eye-witnesses who were found aadil during purgation. The presence of accused, deceased and eye-witnesses on the place of occurrence has never been assailed rather admitted as has not been challenged during the process of cross-examination being the only tool to extract truth. The place, time and manner of occurrence are fully established from the statements of eye-witnesses and these factors also remained unchallenged during cross-examination. Though the learned counsel for the convict-appellant tried to establish that the convict has not committed the alleged occurrence rather has been involved in the case with mala fide intention but he could not even suggest the name of any other person who in his opinion was the real culprit. He also did not take any such plea in the statement recorded under section 265-D Cr.P.C. nor produced any evidence in defence to establish his stance. The superior Courts have held constantly that the plea of alibi can be taken at initial stage and an accused cannot be allowed to take any such plea at belated stage, thus it was enjoined upon the convict-appellant to take such plea at the time of his statement under section 265-D Cr.P.C. Moreover it is also pertinent to mention that under Article 121 of Qanun-e-Shahadat even a defence plea taken by the accused is liable to be proved to that extent otherwise no benefit can be claimed from it but in the instant case even no defence plea has been taken against a case of direct evidence hence, the prosecution version remained unchallenged and beyond suspicion. Furthermore, the accused is nominated in the promptly lodged FIR, thus, the element of substitution does not rise, hence the argument is repelled. The recovery of weapon of offence on the pointation of accused vide Exh.PE has been substantiated from the statements of recovery witnesses who also remained stable during cross-examination and the defence failed to shake their credibility. The Forensic Science Laboratory Lahore report reads as under:- (i) The angle of striking is same on C&T. (ii) The dimension of the dip is same on C&T. (iii) Identical breach face marks on C&T. (iv) Cut mark inside the dip in same on C&T. (v) Dent mark inside the dip in same on C&T. Thus, the recovery of weapon of offence on the instance of convict is also established. The argument advanced by the learned counsel for the convict-appellant that in the remand form produced by investigating agency before the court for obtaining remand, it is mentioned that till 01.08.1997 the recovery of weapon of offence was not affected, hence the alleged recovery on 31.07.1997 is maneuvered is concerned, it may be stated that merely on an irregularity or mistake in the dates on the remand form and the recovery memo, the recovery of weapon of offence cannot be declared as fictitious particularly in case of direct evidence where nisab of Shahadat is also available, moreover, when the chemical examiner has reported that the recovered empty from the place of occurrence was fired from the recovered weapon of offence. The medical evidence also corroborated the prosecution version that deceased died due to firearm injury, so the Court below rightly convicted the accused. The argument advanced by the learned counsel for the convict-appellant that medical evidence did not support the ocular evidence of the prosecution has also got no plausible essence because as per prosecution version the accused fired with 12 bore rifle when the deceased was ablution, hence in such a situation receiving injuries at neck and arm is not strange rather natural because single fire with 12 bore rifle may cause hit of pellets at different parts of body and merely non-mentioning of injury of the deceased at his arm in the FIR or in the statements of prosecution witnesses is not fatal because witnesses in such panic situation are not expected to minutely observe all the wounds of the body, moreover, they were not confronted with reference to the medical reports. Under Article 140 of Qanun-e-Shahadat Order only the discrepancies which were contradicted by referring to relevant document/evidence to the witness can be considered as a contradiction, so it can safely be concluded that medical evidence is also in line, nexus and consonance with the ocular evidence whereas in the injury form prepared by police the injury on the hand of deceased has also been mentioned. The argument advanced by the learned counsel for the convict-appellant that recovery of crime empty from the place of occurrence is unbelievable because as per statements of eye-witnesses the accused after firing fled away from the place of occurrence and a local made 12 bore rifle did not eject the empty, hence the recovery is doubtful has also got no water to carry because neither the eye-witnesses deposed in their statements that the accused did not eject the empty nor such stance was even taken or established during cross-examination by the defence counsel, hence in such a situation it cannot be doubted or ruled out that the accused after firing ejected the empty on the place of occurrence which was recovered by the investigating agency as the investigating agency if intended to maneuver the recovery may mention that the empty was recovered from the weapon of offence. It is an axiomatic precept of law that where the ocular evidence is found satisfactory, the same did not need further corroboration. Reliance may be placed on 2007 PCr.LJ 1757, wherein at page 1773 it has been observed as under: "It therefore follows that where ocular evidence is reliable and satisfactory, conviction in law can be recorded on such evidence alone without any further corroboration." In the present case as stated earlier the ocular evidence has been found trustworthy, convincing and natural which does not require any further corroboration for conviction of the accused person rather the direct evidence gets further support from ample circumstantial evidence, hence, the sentence awarded by the Court below is justified and entails to be sustained. The main argument advanced by the learned counsel for the convict appellant that statement of the convict appellant under section 340(2) Cr.P.C. has not been recorded, hence, the case is liable to be remanded to the trial Court, has got no legal essence because the statement of the accused under section 342 Cr.P.C. was recorded on 30.08.1999 whereas insertion of section 340(2) in the Code of Criminal Procedure in Pakistan was adapted in the Azad Jammu and Kashmir through Act XIII of 2001 dated 12.12.2001, hence, at the stage of recording statement of convict appellant under section 342 Cr.P.C. said provision of law was not holding the field to the extent of territory of Azad Jammu and Kashmir but even then while recording statement under section 342 Cr.P.C. the accused was asked that whether he wants to say anything more, he denied, therefore, the argument is repelled. DISPOSAL: The crux and epitome of the above debate is, the appeal filed by convict appellant is hereby dropped for having no essence whereas the reference sent by the trial Court is answered in affirmative. JK/55/AJK(H.C) Appeal dismissed.