1992 P Cr (PLP)

JUSTICE MUHAMMAD RAFIQ TARAR (CHAIRMAN).-- Muhammad Sohail Naveed son of Muhammad Ismail, caste Arain, resident of Ara Channan Din, Street No.4, Makka Colony, Gulberg-III, Lahore has been convicted by the learned Special Court for Speedy Trials No.1, Lahore under sections 302 and 460 of the P.P.C. and sentenced to death as Qisas on the former charge and imprisonment for life and a fine of Rs.10,000 under section 460, P.P.C. He has challenged his conviction and sentence through this appeal.

2. The brief facts of the prosecution case are that on 16-5-1991 at about 11-00 or 11-15 p.m. Mst. Fauzia Javed complainant and her husband Javed, Abbasi deceased alongwith their children returned home in their car after attending a marriage ceremony at Avari Hotel, Lahore. Mst. Fauzia Javed opened the outer, gate and after entering the kitchen from the back side opened the lock of the door of the house and took the children inside. At that time Javed Abbasi deceased was parking the car in the porch. Mst. Fauzia Javed heard alarm and thought that her husband was `just jesting'. There was more alarm and she thought that perhaps dogs had entered the lawn where upon she came out and saw a person armed with a pistol grappling with the deceased. Within her view, he fired shots hitting the deceased. In the meantime, the children came out but she pushed them inside and-came out raising alarm and saw that man running away. Her neighbours get attracted to her alarm. With their help and assistance he placed the deceased in the car and took him to Adil Hospital where she was informed that the deceased had already expired. Thereafter she started for the police station. On the way she met Akhtar Ali, S.H.O., Police Station Cantt., and reported the occurrence to him at 12-30 a.m. vide her statement wherein she mentioned the features of the culprit which she had noted while the occurrence was going on. On the basis of her above statement formal F.I.R. was recorded at the police station at 12-45 a.m.

3. After recording the statement of Mst. Fauzia Javed, the S.H.O. reached Adil Hospital and prepared the injury statement Exh.P.L. and inquest report Exh.P.M. of the dead body of Javed Abbasi and sent it to the mortuary for post-mortem examination. Then he reached the spot and from the lawn on the back side of the Bungalow recovered mauser P.1 containing three bullets vide memo. Exh.P.G., 5, bunches of keys containing 19 keys and two Taar Numa keys Exh.P.3/1-21 and a Sindhi Ajrak P.4 vide memo. Exh.P.H. He also secured some blood-stained earth and made it into a sealed parcel vide memo. Exh.P.F.

4. On 17-5-1991 Dr. Maqbool. Ahmed conducted the autopsy on the dead body of Javed Abbasi deceased and found the following injuries on it:-- (i) A lacerated wound C.75 c.m. x 0.4 c.m. on the front of right side of neck with blackening around the wound, margins are irregular and inverted, 5.5 c.m. from mid-line, 1.5 c.m. above right mid-clavicular line. (ii) A lacerated wound 1.3 c.m. x 0.75 c.m. on the front of left side of chest with collar of abrasion, margins are inverted, 5.5 c.m. from mid-line, 5.5 e.m. from left nipple, 11 c.m. from left mid-clavicular line. (iii) An abrasion 2.5 c.m. x 1.5 c.m. on the front of right chest, 3.5 c.m: to right of mid-line, 7 c.m. to left of right nipple, 11 c.m. below right mid clavicular line. (iv) An abrasion 2 c.m. x 1 c.m. on front of left knee 35 c.m. above left, ankle, (v) An abrasion 1 c.m. x 0.75 c.m. on front of right knee, 36 c.m. above right ankle. (vi) An abrasion 0.4 c.m. x 0.8 c.m. on right side of forehead, 2.3 cm. above mid-point of right eyebrow. (vii) An abrasion 0.7 c.m. x 0.2 c.m. on forehead, 6 c.m. from external angle of right eye. Injuries Nos.l and 2 were caused with fire-arm and rest with blunt weapon. The fire-arm injuries were sufficient to cause death in the ordinary course of nature, individually as well as collectively. The remaining injuries were simple in nature.

5. On 28-6-1991, the S.H.O. learnt that Maskeen and Tanvir Akhtar (acquitted/discharged accused) had been arrested by the C.I.A. staff and were lodged in jail. After obtaining the order from the Illaqa Magistrate he interrogated them in jail on 6-7-1991 and formally arrested them in this case. On the same day he produced them before the Magistrate and obtained their physical remand. On 15-7-1991 Maskeen led to the recovery of cutter P.5 vide memo Exh.P.J.

6. On 18-7-1991 Anti-Dacoity Staff informed the S.H.O. that Sohail Naveed (appellant herein) who was arrested in another case had made disclosure about the present occurrence. The S.H.O., under the order of the Magistrate, interrogated Sohail Naveed in. Camp Jail, Lahore on 27-7-1991. Then he produced him before the Magistrate with covered face on the same day and thereafter got him sent to the judicial lock-up.

7. On 5-8-1991, the S.H.O. made application Exh.P.H. to the A.D.C.(G), Lahore Cantt. for arranging the identification parade of Sohail Naveed accused in Jail. By his order, dated 10-8-1991 Exh.P.D./1, the A.D.C.(G) deputed Mr. Zulfiqar Ali Ghuman, Magistrate 1st Class, to arrange the identification parade on 12-8-1991. The identification parade was held in District Jail, Lahore on 12-8-1991. The appellant was mixed with seven other inmates of the jail and Mst. Fauzia Javed was called in to identify the culprit of the case. She correctly identified the appellant as the culprit. After the identification parade appellant raised objection that he had already been shown to the complainant. The identification proceedings are Exh.P.E.

8. After obtaining the physical remand of Sohail Naveed on 19-8-1991, the S.H.O. interrogated him. On 20-8-1991 he pointed out the place of occurrence to the S.H.O. After the investigation Sohail Naveed Maskeen and Tanvir Akhtar were sent up to face their trial before ,the Special Court for Speedy Trial No.1, Lahore.

9. Vide order, dated 6-11-1.991, the learned Special Court framed the charge only against Muhammad Sohail Naveed accused. No charge was framed against Maskeen and Tanvir Akhtar as there was no in criminating evidence against them. They were ordered to be set at liberty if not required in any other case.

10. In support of its case the prosecution examined 13 witnesses in all including Mst. Fauzia Javed, widow of the deceased, who furnished the ocular account of the occurrence.

11. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He came up with the version that Akhtar Hussain, Inspector brought him to police station from jail on 27-7-1991 where Mst. Fauzia was also called; he was shown to her but she told the inspector that he was not the culprit but the Inspector insisted' that he was the real culprit after keeping him at police station for two hours, the Inspector took him to the Court but the Magistrate had already risen and he was sent to jail without the order of the Magistrate. He further stated that since he had been shown to Mst. Fauzia Javed `thoroughly' so there was no difficulty for her in picking him up in the parade. He contended that he and his brother filed a writ petition against Anti-Dacoity Staff and for that reason he was falsely invovled in this case He tendered a copy of writ petition with interim order dated 6-10-1991. No evidence was led in defence.

12. After examining the evidence on the record the learned trial Judge came to the conclusion that "the occurrence as stated by Mst. Fauzia complainant did take place in which her husband was fired at and injured in the porch by a culprit who was well seen by her and when participated in the identification parade, she picked up the present accused as the culprit of the occurrence". On the basis of the above finding the learned trial Judge convicted and sentenced the appellant as mentioned above.

13. The main contention of the learned counsel for the appellant is that identification of the appellant by Mst. Fauzia at the identification parade was of no avail to the prosecution as the parade was held three months after the occurrence and the appellant had been shown to Mst. Fauzia at the police station prior to the identification parade. He submits that Mst. Fauzia claimed to have seen the appellant while he was grappling with her husband and in that posture she was not expected to observe the features of the culprit closely and in any case her uncorroborated solitary statement was not sufficient to warrant the conviction as the mere fact that she had no enmity with the appellant would not clothe her with credibility. It is submitted that Mst. Fauzia might have made statement against the appellant on being assured by the police that he was the real culprit. The learned counsel or the State on the other hand submitted that Mst. Fauzia had ample opportunity of observing the features of the culprit, she correctly picked up the appellant at the identification parade and she had absolutely no motive for false implication, therefore, her testimony was rightly relied upon by the trial Court.

14. We have very carefully considered the submissions made at the Bar in the light of evidence on the record. The first question that arises for decision in this case is whether Mst. Fauzia was in a position to correctly identify the murderer of her husband. Her presence in the house at the time of occurrence is not disputed. The prosecution version that the deceased and Mst. Fauzia had returned home from Avari Hotel after attending a marriage ceremony also goes' unchallenged on the record as no question regarding this aspect was put to Mst. Fauzia. Medical evidence reveals that besides two fire-arm injuries, the deceased had five abrasions; one on right chest, two on left and right knees and two on forehead. According to Mst. Fauzia when she came out on hearing alarm the culprit was grappling with her husband with a pistol in his hand. It is obvious that the deceased suffered abrasions at the hands of the culprit and probably with the butt of the pistol, during the period he grappled with him. It was therefore, not a case of hit and run and learned trial Judge has rightly held that Mst. Fauzia had' "well seen" the culprit who fired at her husband and injured him.

15. In cross-examination Mst. Fauzia denied the suggestion that it was dark and the culprit could not be identified. She volunteered that there were bulbs in the porch and asserted having stated in the F.I.R. that there was light. She was confronted with the F.I.R. wherein it was not so recorded. This omission in the F.I.R. is, however, not of much importance. In the FIR: she gave full description of the features of the culprit and even the colour of his clothes. It is evident that had there been no light, she would not have given the said details in the F.I.R. In the circumstances, we are satisfied that Mst. Fauzia Javed had enough opportunity of seeing the culprit who had committed the murder of her husband.

16. It was suggested to Mst. Fauzia time and again that the appellant was shown to her before the identification parade but she categorically denied the suggestion as incorrect. The appellant did not produce any evidence in support of the version that he was shown to Mst. Fauzia prior to identification parade and no inference to that effect can be drawn on conjectures and surmises. It is pertinent to mention that before the identification proceedings the appellant did not raise any objection that he had been shown to Mst. Fauzia Javed at the police station or elsewhere. This objection was taken by him after the identification parade was over and he had been correctly picked up by Mst. Fauzia Javed.

17. The identification parade was held on 12-8-1991 i.e. about three months after the occurrence. It is contended that it was not possible for Mst Fauzia Javed to memorize the features of the culprit after such a long time and in any case her solitary statement was not sufficient to form a sound basis for conviction. No hard and fast rule can be laid down with regard to the period of time which may elapse between the occurrence and the identification of the culprit. We have already observed that it was not a case of hit and run and that Mst. Fauzia Javed had ample opportunity to closely observe the features of the culprit when he was grappling with the deceased and this exercise had taken some time. It was not a case of momentary glimpse. She had absolutely no motive to falsely implicate the appellant in a heinous crime like the present one involving capital punishment. The statement of the appellant that she had told the S.H.O. that he (the appellant) was not the `culprit of her case' does not ring true. No question to that effect was put to her in cross-examination. She having seen the culprit from close proximity while grappling with her deceased husband for quite some time was likely to retain his features in her memory. In the circumstances we see no reason to believe that she had named appellant on being assured by the police that he was the real culprit. In the circumstances her testimony has rightly been relied upon by the learned trial Court. We, therefore, maintain the conviction of the appellant under section I E3 302, P.P.C. However, his sentence of death as Qisas is substituted with death as Tazir His conviction and sentence under section 460, Cr.P.C. being not maintainable is-set aside. This section merely lays down principle of vicarious C liability and is not attracted in this case as the appellant alone by himself committed lurking house trespass and during the same caused death of the deceased. For the foregoing reasons this appeal with the above modification oils and is dismissed. N.H.Q./27/SAC Order accordingly.