2024 PLP 1949 (YLR)

Anwaarul Haq Pannun, J.

This single judgment shall decide, the above noted, Criminal Appeal, challenging his conviction and sentence filed by the appellant Liaquat Ali alias Jajji, and Revision Petition filed by complainant Muhammad Irfan Haider for enhancement of sentence of the appellant, as both have arisen out of judgment dated 17.02.2021, passed on conclusion of trial in a criminal case, bearing FIR No.193, dated 13.05.2014, offence under Sections 302/109, P.P.C., registered at Police Station Sahiwal, District Sargodha by the learned Addl. Sessions Judge, Sahiwal, District Sargodha. Needless to reiterate that appellant was sent up to face trial in aforementioned case, according to prosecution, on 13.05.2014, at about 10.00 a.m. when Muhammad Rizwan Haider, the brother of the complainant reached at butcher's market (Mandi Qasaban), Sahiwal, suddenly, the appellant while armed with pistol .30 bore emerged, raised lalkara, made fire shots with his pistol, which hit on left side of his flank, and on left side of his hip, who upon receiving fire-shots fell down. Upon hearing firing and noise, Khalid Mehrnood and Asghar Ali who were passing by there by chance, witnessed the alleged occurrence and upon seeing them, the appellant while brandishing his pistol, fled away. The motive behind the occurrence was that upon forbidding the accused/appellant by his brother from doing the narcotic business in his Mohallah, exchange of abuses had taken place between them. It had further been alleged that the occurrence had taken place on the abetment of Muhammad Nawaz alias Bhappa and Noman alias Nomi. The FIR was lodged under Sections 324/109, P.P.C., however, the then injured Rizwan Haider died on 15.05.2014 at DHQ Hospital Sargodha, thereupon the offence under Section 302, P.P.C. was added.

2. The prosecution at trial examined as many as thirteen (PW-1 to PW-13) prosecution witnesses besides tendering certain documents including he reports of PFSA (Exh:PA to Exh:PT) to prove its charge. In his statement under Section 342, Cr.P.C, the appellant professed his innocence while refuting the prosecution's evidence, stating his false involvement in the case. The appellant did not opt to appear as his own witness under Section 340(2), Cr.P.C. or to produce evidence in his defense. On conclusion of the trial, the learned trial court, vide its judgriient dated 17.02.2021, convicted and sentenced the appellant as under:- Under Section 302(b), P.P.C. Sentenced to life imprisonment along with compensation of Rs.2,00,000/- payable to the legal heirs of the deceased under Section 544-A, Cr.P.C and in default thereof to further undergo SI for six months. The benefit of Section 382-B, Cr.P.C is extended to the convict.

3. Arguments heard. Record perused.

4. As it is evident from above facts that the prosecution's case mainly consists of ocular account, medical evidence, motive and a recovery of pistol allegedly recovered on pointing out of the appellant vide recovery memo. (Exh:PN). The ocular account has been furnished by Muhammad Irfan Haider, complainant (PW-7) i.e. the brother of the deceased Muhammad Rizwan and Muhammad Asghar (PW-10). Admittedly, Muhammad Irfan Haider, complainant (PW-7) is not an eye-witness of the alleged occurrence. The occurrence took place at 10.00 a.m. on 13.05.2014. The matter was reported to the police on the same day at 10.15 a.m. vide rapt No.04 i.e. with promptitude. The appellant being the sole accused has specifically been nominated in the promptly lodged FIR with above described specific role. Muhammad Rizwan Haider, brother of the complainant died on 15.05.2024 at DHQ Hospital Sargodha. Dr. Sohail Asghar, Medical Officer (PW-2) medically examined the deceased in an injured condition who was brought by Aurangzeb, a cousin of the injured and found the following injuries on his person:- i) A firearm wound of entry measuring 1 x 1 cm on the left side of abdomen 8 cm lateral to the umbilicus with inverted margin. ii) A firearm wound of entry measuring 1 x 1 cm on the left lateral side of thigh 6 cm below from the left hip joint. On 15.05.2024, he also conducted the postmortem examination over the dead body of the deceased Muhammad Rizwan Haider. According to him, all injuries were ante mortem and inflicted by firearm and death had occurred due to injury No.1 leading to massive bleeding, cardiopulmonary collapse, shock and death. The complainant Muhammad Irfan Haider (PW-7) is brother and Asghar Ali (PW-10) is uncle of the deceased. The complainant (PW-7) as aforesaid is not an eye-witness of the occurrence, however, he on receiving information of occurrence form Asghar Ali and Khalid Mahmood PWs, reached at the place of occurrence and found his brother Rizwan Haider lying in an injured condition, who shifted the injured under the police escort to hospital for his medical examination. The claim of Asghar Ali (PW-10) regarding his presence in at the relevant time at place of occurrence in bazar/butcher's market could not have been shattered by the defence. It was a daylight occurrence. The parties were already known to each-other. Therefore, no question of misidentification or substitution of the accused/appellant arises. Even it is not believable that the PWs by leaving the actual murderer had falsely implicated the appellant. The ocular account furnished by PW-10 is fully corroborated with medical evidence. I don't find any reason to differ with the findings of learned trial Court, which are based upon cogent and sound reasons i.e. "The date, time and place of occurrence is not disputed. The matter was reported to the police with promptitude. This is not a case of mistaken identity. Presence of eye-witnesses at the time of incident at the place of incident had been established who were in a position not only to watch the whole occurrence but also to identify the accused. Minor discrepancies in the prosecution evidence and technicalities are to be overlooked without causing any miscarriage of justice. Although it was argued by learned defense counsel that he was implicated in the case falsely due to enmity and complainant as well as eye-witnesses who are closely related to deceased have deposed falsely but mere relationship of PWs with the deceased is not enough to disbelieve or discard their evidence in the absence of serious enmity between the parties. Mere relationship does not make an independent witness, an interested one and deposition of such a witness who otherwise proved to be truthful witness cannot be discarded on such ground. Even otherwise, in such like cases when brother arrived at the place of occurrence and found his brother in injured condition along with PW-10 and thereafter his injured brother succumbed to the injuries at hospital substitution is rare phenomena. It does not appeal to prudent mind that real brother will substitute the actual culprit with an innocent person. The accused has not produced any cogent evidence to establish his enmity with the complainant party. The accused remained fugitive from law for considerable period of almost three years. The ocular account of occurrence furnished by the PWs is consistent and straight forward." So far as recovery of weapon of offence allegedly made on pointing out of the appellant from a room of his house, seized by the I.O is concerned, it may be observed that since the appellant remained fugitive from law for about three years, therefore, recovery of weapon of offence on his pointing out vide recovery memo. (Exh:PN) is irrelevant and inconsequential. Since the learned trial Court while assigning cogent and valid reasons for want of sufficient evidence, has rightly disbelieved the motive part of the occurrence, therefore, I am constrained to approve such findings. It is trite a law that even if motive part of the prosecution case is excluded from consideration and in presence of sufficient evidence in the form of ocular account duly supported by the medical evidence beyond any shadow of doubt against the accused are sufficient to record conviction. The argument of learned counsel for the appellant that PW-10 being close relative of the deceased is a chance witness, has no substance as merely on account of relationship of the PWs with the deceased, his evidence cannot be discarded in the absence of any inconsistency or inherent infirmity in their depositions. In this context reliance is placed upon case reported as Khizar Hayat v. The State (2011 SCMR 429).

5. For what has been discussed above, the learned trial court, in the light of the principle of sifting the grain from the chuff, has delivered a well-reasoned judgment while extending the appellant mitigation on the basis of disbelieving the motive part of the occurrence. Therefore, in my view, the conviction and sentence awarded to the appellant Liaqat Ali alias Jajji under Section 302(b) P.P.C. by the learned trial court is based upon well-settled principles of appreciation of evidence and the same is accordingly upheld. Resultantly, Criminal Appeal No.14637 of 2021 being devoid of any force is hereby dismissed.

6. As far as Criminal Revision No.16786 of 2021 (Muhammad Irfan Haider v. Liaqat Ali alias Jajji, etc.) is concerned, for the reasons mentioned hereinabove, the instant criminal revision petition having no substance, stands dismissed. JK/L-2/L Appeal dismissed.