2015 PLP 116 (YLR)

ARSHAD MAHMOOD TABASSUM, J.

Muhammad Akram, appellant, through the instant appeal, has assailed his conviction and sentence recorded against him by a learned Additional Sessions Judge, Karor, District Layyah, vide his judgment dated 19-9-1995, whereby he convicted the appellant in case F.I.R. No.105, dated 24-4-1994, registered at Police Station Karor, under section 302/34, P.P.C., and sentenced him under section 302(b), P.P.C. to imprisonment for life. The appellant was also directed to pay compensation amounting to Rs.20,000 to the legal heirs of the deceased, as required under section 544-A, Cr.P.C. in default whereof, he was ordered to further undergo six months R.I.

2. Briefly stated the facts of the case are that Ghulam Mustafa complainant (P.W.8) made statement Ex.P.D. before Muhammad Azam S.I. ( P.W.12) at 3:30 a.m. on 24-4-1994, at Mor Darbar Rajanpur; that on 23-4-1994 before sun set, he along with Hasham Raza (P.W.9) and Kanwar Abbas ( P.W. not produced) was standing at about 12/13 Karam away towards northern side of his Baithak, while Ghulam Mujtaba, his son (deceased) was sitting on a cot in front of boring room, when Muhammad Akram (appellant), equipped with a revolver 32-bore, Zulfiqar and an unknown accused person came there on a motor cycle; that on reaching there, they alighted from the motor cycle and raised lalkara that they would not spare Ghulam Mujtaba, whereupon the said Ghulam Mujtaba in order to save his life, rushed towards the boring room, but the door of the boring room stood locked from outside; that in the meanwhile, the appellant came near to the son of the complainant and was at a distance of a few Karams; that Muhammad Akram (appellant) made fires from his revolver, which hit him on the front side of his body, due to which, he fell to the ground; that the P.Ws. challenged the assailants and tried to catch hold of them, but they threatened that who soever came forward would be done to death; that due to fear, P.Ws. did not step forward and that in the meanwhile, the assailants fled away towards east on the said motor cycle along with weapon of offence. Ghulam Mujtaba succumbed to his injuries at the spot. The motive of the occurrence, as alleged by the complainant, was that Muhammad Akram (appellant) suspected the deceased carrying on illicit intimacy with his sister. The complainant also maintained that due to non-availability of conveyance and odd hours, he could not inform about the occurrence promptly.

3. Muhammad Azam S.I. (P.W.12), after recording the complaint Ex.P.D, sent the same to the police station for the registration of the formal F.I.R., through Abdur Rehman 479/C and on the same day, he proceeded to the spot, where he recorded supplementary statement of Ghulam Mustafa complainant. He inspected the spot, recorded site inspection note and prepared site plan of the place of occurrence without scale Exh.P.H. He collected blood stained earth from the spot, made the same into sealed parcel and secured vide memo Ex.P.E, attested by the witnesses. He prepared injury statement Ex.P.I. and inquest report Ex.P.J and sent the dead body through Muhammad Aslam constable to the mortuary. He also recorded statements of the witnesses. He conducted raid at the residences of the accused in Basti Noshehra, but they were not available in their houses. In Basti Noshehra, Muhammad Aslam constable produced last worn clothes of the deceased Ghulam Mujtaba i.e. Shirt P-1, Shalwar P-2, Vest P-3 (all blood stained) and sealed phial. He took all these articles into to possession vide memo Ex.P.A. On 25-4-1994, he handed over the last worn clothes of the deceased and blood stained earth as intact to the Moharrir Maalkhana of Police Station Karor for safe custody. On 3-5-1994, one Habib Ullah Khan Pathan, produced all the three accused, namely, Muhammad Akram (appellant), Zulfiqar and Abdur Rasheed at Bus Stop Karor and he arrested them. On 6-5-1994, Muhammad Akram accused while in police custody led to the recovery of revolver 32-bore P-4, three alive cartridges P-5/1-3, two crime empties P-6/1-2. He prepared memo Ex.P.G, attested by the witnesses and he also made in the sealed parcel all the above mentioned articles. He also prepared site plan of the place of recovery Ex.P.G/1. As the accused could not produce the license of the revolver, he also registered a separate case under section 13 of Arms Ordinance, 1965. He handed over the sealed parcel to the Moharrir in the Police Station for safe custody and onward transmission to the office of the Forensic Science Laboratory. On 7-5-1994, Muhammad Akram accused while in police custody led to the recovery of motor cycle Registration No.1952/MIA, along with registration book P-7, from the Baithak of his residential house in Basti Noshehra. He prepared memo Ex.P.F, attested by the witnesses. He prepared site plan of the place of occurrence Ex.P.F/1. On 22-5-1994, Patwari Halqa produced site plan of the place of occurrence Ex.P.B and Ex.P.B/1. He recorded statements of the witnesses and got all the accused challaned to face their trial.

4. A charge under section 302/34, P.P.C., was framed against the accused persons to which they pleaded not guilty and claimed their trial under the law.

5. The prosecution, in order to prove its case, examined as many as 12 witnesses.

6. Haji Muhammad 31/C-1, (P.W.1) proved safe custody of revolver 32 bore along with three alive bullets and two crime empties in Maalkhana. Ashiq Hussian 511/C (P.W.2) proved safe transmission of sealed parcels containing blood stained earth to the office of Chemical Examiner, Lahore on 7-5-1994. He also proved safe transmission of a sealed phial containing pallets to Forensic Science Laboratory on 29-5-1994. Muhammad Aslam 267/C, (P.W.3) escorted the dead body of the deceased to the mortuary, DHQ, Layyah for post-mortem examination. He also proved recovery of last worn clothes of the deceased. Khalid Mahmood, Patwari, (P.W.4) is scribe of scaled site plan Ex.P.B. Amjad Ali (P.W.5) identified the dead body at the time of autopsy. Abdur Rehman 479/C (P.W.6) transmitted sealed parcel said to contain revolver 32 bore, alive bullets and empties to the Forensic Science Laboratory. Dr. Ghulam Mustafa (P.W.7) conducted the post-mortem examination on the dead body of Ghulam Mujtaba on 24-4-1994 and found the following injuries on the body of the deceased:-- (1) A fire arm wound 1 cm and into 1 cm on the right side of chest just above the medial end of white clavical one cm lateral to supra sternal notch and it was only striking the wound. A small piece of carbon was present inside the wound and it was not going deeply into the thoracic cavity. (2) A fire arm wound 1 cm x 1 cm on the front of right chest 1 cm right to the injury Nos.1 and 2 cm right and below to the supra sternal notch and it was below the right clavical going down into the thoracic cavity. (3) A fire arm wound 1 cm x cm on front of neck a the level of larynx 5 cm above the upper end of supra sternal notch and 1 cm below the hyoid bone under lying tissues were congested but this was not going deep the treachtal lumen. A small piece of copper was present in this wound. (4) A small blackish fire arm 1/2 cm x 1/2 cm on the front of left shoulder and it was 5-1/2 cm below the left acromian and it was skin deep only. (5) There was an exit wound 1 cm x 1 cm on the back of right chest 5 cm on the right side of the back of right chest 5 cm on the right side of mid line of vertibrea and 9-1/2 cm below and medial to lower angle of right scapula. There was bleeding through this wound. In his opinion, injuries Nos.1, 2, 3 and 4 were caused by fire arm while injury No.2 was sufficient to cause death in ordinary course of nature due to injury to vital organs, haemorrhage and shock. Injury Nos.1, 3 and 4 were due to scattered pieces of bullets. The probable duration between injuries and death was 30 to 40 minutes whereas between death and post-mortem examination was 15 to 16 hours. Ghulam Mustafa, complainant (P.W.8) reiterated what he had stated in his statement Ex.P.D. Hasham Raza (P.W.9) corroborated P.W.8 on all material aspects of the case regarding ocular account. He also proved recovery of blood stained earth and recovery of motor cycle. He proved recovery of last worn clothes of the deceased. Muhammad Asad (P.W.10), proved recovery of revolver P-4, which Muhammad Akram (appellant) got recovered from the reeds. He further deposed that on unloading the revolver, three live bullets and two empties were recovered from it which the Investigation Officer secured through recovery memo Ex.P.B, attested by him. Saifullah ASI (P.W.11) is scribe of F.I.R. Ex.P.D/1. He also proved the safe custody in the Maalkhana of a sealed parcel, said to contain blood stained earth. Muhammad Azam S.I. (P.W.12) is the Investigation Officer of the case. Different steps taken by him during the course of investigation have already been narrated in the earlier part of this judgment.

7. The learned Prosecutor on 3-5-1995, gave up Kanawar Abbas and Abdul Hameed P.Ws. being unnecessary and while tendering in evidence reports of Chemical Examiner, Serologist and Forensic Science Laboratory as Ex.P.K, Ex.P.L and Ex.P.M respectively, closed the prosecution evidence. The accused persons then, were examined under section 342, Cr.P.C. and the entire prosecution evidence was put to them in the shape of questions which they termed as incorrect. In reply to a question "why this case was registered against you and why P.Ws. have deposed against you", the appellant stated as under:-- "My father is a worker of Muslim League since long, while Allah Bakhsh Samtia, who is MPA from our area belongs to PPP. He is, though our relative, but on inimical terms with us. My brother, Aslam had previously contested election of B.D. against him. Allah Bakhsh is a strong worker of Fiqa Jafria while my father belong to Ahl-e-Sunnat. Nazim Shah a friend of Allah Bakhsh Samtia is president of Tehreek-e-Fiqa Jafria, district Layyah. I have been working in the days of election as worker of the opponent of Allah Bakhsh Samtia. The case against me has been concocted by Nazim Shah and Allah Bakhsh Samtia MPA."

8. The appellant and his co-accused persons did not opt to enter the witness box to state on oath in disproof of the allegations, levelled against them by the prosecution as required under section 340(2), Cr.P.C.

9. Ultimately, the learned trial court, after hearing the arguments of both the learned counsel for the parties, convicted and sentenced the appellant as aforesaid. However, his co-accused persons were acquitted, while extending benefit of doubt to them. Hence, this appeal.

10. Learned counsel for the appellant has argued that the impugned conviction and sentence is against the law and facts of the case; that though the complainant and eye-witnesses, claimed to be present at the spot, but the lodging of the report with the police after a considerable delay negates their presence at the spot; that both eye witnesses are closely related to the deceased, as complainant is his father, whereas Hasham Raza P.W. is son-in-law of the complainant, hence, they being interested witnesses, are not liable to be believed; that ocular account of the occurrence is in conflict with the medical evidence; that the statements of the eye witnesses are full of contradictions and discrepancies, who have also made dishonest improvements in their statements, hence, they cannot be termed as truthful witnesses; that the recovery of revolver has been disbelieved by the learned trial court; that similarly, recovery of motor cycle is inconsequential in this case; that motive of the occurrence has even been disbelieved by the learned trial court; that the learned trial court has misread and misconstrued the evidence, available on record and thereby erred in recording conviction and sentence against the appellant, hence, by accepting this appeal, the impugned conviction and sentence may be set aside.

11. Conversely, learned law officer assisted by learned counsel for the complainant has fully supported the impugned conviction and sentence.

12. I have heard learned counsel for the parties and perused the record with their able assistance.

13. Though the F.I.R. in this case was lodged after some delay, but it is noteworthy that the occurrence in this case took place just before sun set and Police Station was at a distance of 24 K.M. from the place of occurrence. The explanation for delay in lodging the F.I.R., has been given by the complainant in his statement Ex.P.D. in the following words:-- The complainant regarding his explanation for delay in lodging the F.I.R. remained consistent even during the course of trial when while appearing as P.W.8 during cross-examination, he states:-- "I remained at the spot for about 5/6 hours and then left for the police station for reporting the matter. The road is at a distance of 7/8 acres from the place of occurrence. Volunteered that there was no vehicle available at that time. None of us proceeded on foot for the purpose. It is correct that I had gone to the police along with Sadat Ali on a motor cycle. There were several bicycles and motor cycles in the vicinity but no was available immediately at that time. Sadaqat Ali is my nephew. He resides at a distance of three/four kilometres from my house." Thus, the delay in lodging the F.I.R. has been plausibly explained by the complainant in the F.I.R. as well as during his statement before the learned trial court. The same, therefore, cannot be considered fatal for the prosecution in the circumstances of the case.

14. As regards, ocular account of the occurrence, the same has been forwarded by Ghulam Mustafa, complainant (P.W.8) and Hasham Raza P.W.9. Both of them remained consistent in their depositions regarding the ocular account and they successfully stood test of cross examination. The learned counsel for the appellant has challenged their testimonies on the ground that both of them happened to be close relative of the deceased. However, it is a hard fact that no direct enmity has been alleged to these P.Ws. against the appellant. It is well settled by now that mere relationship of a witness to the deceased is no ground to discard his testimony unless it is established that he has inimically deposed against the accused. Reliance in this regard may be placed upon the case Sharafat Ali's case (1999 SCMR 329), the relevant portion whereof reads as under:-- "It was urged before us that they are interested witnesses and being close relatives of the deceased, their testimony cannot be believed. No doubt, they are related, but mere relationship is no basis to discard their evidence. Furthermore, by no stretch of imagination they can be considered to be interested witnesses. An interested witness, as laid down by this Court on a number of occasions and particularly in the case of Niaz v. The State (PLD 1960 SC 38), is a person, who has a motive to falsely implicate a person." Reliance in this regard may also be placed on the case of Abdur Rauf's case (2003 SCMR 522), the relevant portion whereof reads as under:-- The eye-witnesses in the present case undoubtedly are related to the deceased but they have been found entirely independent and truthful, therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence-inspiring would hardly need any corroboration.

15. It is also noteworthy that Ghulam Mustafa complainant (P.W.8) is real father of the deceased. The parties were known to each other previously and the question of mistaken identity of the real culprits does not arise, as the occurrence took place before sun set. It is hard to believe that he would substitute the accused/appellant for the real culprits, who had committed murder of his deceased son. Needless to observe that substitution is a rare phenomena. Reliance in this regard may be placed on the case of Allah Ditta's case (PLD 2002 SC 52) and the case of Haji Ali Shan's case (2001 PCr.LJ 1320).

16. It has been argued by the learned counsel for the appellant that Hasham Raza P.W.9 was not resident of the place of occurrence, rather, he resided at a place about 3 K.M. away from the spot. Hence, he was a chance witness, who had failed to establish his presence at the spot, as such, his testimony is not liable to be believed. Having considered this argument of the learned counsel for the appellant, it is observed that no doubt, the said P.W. was a resident of Mauza Khokhar Isra Nasheb, which was at a distance of 3 K.M. from the place of occurrence, as stated by the comp-lainant (P.W.8), during cross examination, but the complainant as well as Hasham Raza P.W.9 have explained his presence at the spot in unison by stating as under:-- "Hashim Raza P.W. came there on the day of occurrence at about 2:00 p.m. Hashim Raza P.W. is my nephew and son-in-law as well. Hashim Raza P.W. reached there because his wife and children were already with us for the last 4/5 days." Similarly, Hasham Raza, during cross examination, has justified his presence at the spot in the following words:-- "My children had already reached at the house of my father-in-law 2/3 days prior, who were brought by me. I had come there in order to bring them back to my house. I reached there on the day of occurrence at about 2/3 p.m. There was no programme to go back to my house on that day with my children."

17. Thus, both the eye-witnesses have fully established their presence at the spot. The explanation given by Hasham Raza for his presence at the spot is corroborated by the explanation given by Ghulam Mustafa (complainant) in that regard. This being so, there appears to be no reason for holding that both of them were not present at the spot at the relevant time. Needless to mention here that the presence of the complainant at the spot was quite natural.

18. It has been argued by the learned counsel for the appellant that both the eye witnesses have dishonestly improved their statements upon their statements made before the police. In this regard, he has referred to contents of the F.I.R. wherein there is no mention of number of fireshots made by the appellant, whereas P.W.8, during his examination-in-chief, has stated that the appellant had made three fireshots. There is no cavil with the fact that in the F.I.R., the number of fire shots has not been mentioned. However, it is also noteworthy that it is mentioned therein as under:- Non-mentioning of three fire shots in the complaint by the complainant and specifying the same by stating that three fire shots were made in his statement before the court, to my mind, hardly affects the merit of the case, when the ocular account of the occurrence is consistent on all material points. In the light of above discussion, I have no doubt in my mind that the learned trial court has rightly believed the ocular account of the occurrence.

19. Next comes the medico-legal evidence, produced by the prosecution. In this regard, it is observed that out of five injuries, found on the body of the deceased, four entry wounds, whereas injury No.5 is exit wound, which have been caused by fire arm weapon. In the opinion of the doctor, injury No.2 was sufficient to cause death in ordinary course of nature and death in this case occurred due to the said injury. The probable time between injuries and death was 30 to 40 minutes and between death and post-mortem examination was 15/16 hours. This deposition of the medical officer lends corroboration to the ocular account of the occurrence. To my mind, there is no conflict between the ocular account and medical evidence, produced by the prosecution.

20. Much emphasis has been laid by the learned counsel for the appellant on the fact that P.W.2, during his examination-in-chief, has stated that on 29-5-1994, Muhammad Afzal Moharrir handed over to him sealed parcel containing pallets for onwards transmission to the Forensic Science Laboratory and that similarly, Muhammad Aslam P.W.3 stated that after post-mortem examination, the doctor handed over to him sealed phial containing pallets and last worn clothes of the deceased, which he produced before the Investigation Officer. On the basis of the above depositions of P.W.2 and P.W.3, the learned counsel for the appellant wants to build an argument that the weapon of offence used during the occurrence was other than a revolver, because bullet is fired from a revolver and not cartridges containing pallets. To my mind, argument of the learned counsel for the appellant is devoid of any force for the reason that though the above said P.Ws. have stated so, but the doctor (P.W.7) has categorically stated that after post-mortem examination, he handed over phial containing pieces of bullet to Muhammad Aslam constable, meaning thereby that the phial handed over to Muhammad Aslam constable (P.W.3) contained pieces of bullets and not pallets. Since the said pieces of bullets were contained in a sealed parcel, it was quite possible for P.W.2 and P.W.3 to mistakenly construe that pieces of bullets contained in the phial were pallets.

21. Recovery of revolver (P-4), live bullets (P-5/1-3) and crime empties (P-6/1-2) have been disbelieved by the learned trial court. Such recoveries had only corroborative value. Conviction could be recorded on the basis of ocular account of occurrence alone, which was confidence inspiring and consistent.

22. In the light of above discussion, it is abundantly clear that the learned trial court has correctly evaluated the material available on record and rightly convicted and sentenced the appellant. Due to the reason that motive was not proved, the award of lesser sentence also appears to be justified. Since, no appeal or revision for enhancement of the sentence has been filed on behalf of the appellant, therefore, quantum of sentence as awarded by the learned trial court does not require reconsideration.

23. The upshot of the above discussion is that this appeal has no merit, which fails and the same is hereby dismissed. The conviction and sentence passed against the appellant by the learned trial court vide judgment dated 19-9-1995, is maintained. Sentence of the appellant was suspended by this Court vide order dated 12-2-1998, which is hereby recalled. He is directed to be taken into custody forthwith to serve out remaining portion of his sentence. Office is directed to convey this order to the learned Sessions Judge, Layyah for compliance. HBT/M-142/L Appeal dismissed.