2021 P Cr (PLP)

MALIK HAQ NAWAZ, C.J.

The instant criminal appeal has been filed under section 410, Cr.P.C. by the convict/appellant namely Masood Alam son of Abdul Wahid resident of Harban Masrang District Kohistan against the impugned judgment / conviction / death sentence passed in sessions case No. 62/2018 by Additional Sessions Judge District Nagar on tour to Gilgit, whereby the learned trial court has passed the death sentence as Tazir under section 302(b), P.P.C. and also convicted the appellant under section 13,-A.O. of 1965 and sentenced him to undergo rigorious imprisonment for seven years, however benefit of section 382-B, Cr.P.C. has been extended in favour of the convict/appellant. Furthermore, the learned trial Court has imposed compensation of Rs. 500,000/- under section 544-A, Cr.P.C. to be paid to the legal heirs of the deceased and in case of non-payment of the compensation amount, the accused shall undergo one month more rigorious imprisonment. The appellant through the instant appeal seeks setting aside of the impugned judgment/conviction/death sentence passed by the learned Additional Sessions Judge Nagar on tour to Gilgit and appellant/convict further seeks acquittal from the charges levelled against him. The learned trial Court has sent Murder Reference No. 02/2020 for confirmation of death sentence awarded to the convict/appellant. Since both the matters are offshoots of a single judgment of the trial court, therefore, we intend to dispose of both the matters through this single consideration/judgment.

2. Brief facts gathered from the record of the case as stated by the complainant are summarized as under:- On 22-01-2018 at about 12:45 p.m., the complainant and his real uncle namely Haji Satbar Khan were going to Civil Hospital Gumari Darel for check up of Haji Satbar Khan. When they reached at the main gate of the Civil Hospital Gumari, the present convict/appellant opened fire shots with .30 bore pistol on the person of Haji Satbar Khan at his backside due to which Haji Satbar Khan fell on the ground, thereafter PW Zia-ur-Rehman and PW Mohammad Shafique who were present in the adjacent medical store shifted the injured to the hospital, where Haji Satbar Khan because of bullet injuries succumbed to the injuries and died. The complainant then went to the Police Station to report the occurrence. The SHO P.S Darel Gumari chalked an FIR bearing No. 05/2018 under section 302 PPC. In the light of the FIR dated 22-01-2018, the I.O of the case namely Mohammad Faqir started investigation by preparing site plan Exh.PW-1/B and prepared site inspection report. The I.O. of the case also collected crime empties Exh.PW-2/F, blood stained soil Exh.PW-2/G, death certificate of the deceased by unnatural means Exh.PW-2/A and identification of dead body Exh.PW-2/C. The accused was arrested by the local police and after completion of investigation sent to judicial lockup to face trial. In response to charge framed under section 302, P.P.C. by the trial court by the trial court, the appellant/convict did not plead guilty and claimed proper trial. The prosecution produced six (06) PWs and got recorded their statements to prove the guilt of the accused Masood Alam. The statement of the accused under section 342, Cr.P.C. was recorded on 11-08-2020, wherein he refused to record his statement under section 340(2), Cr.P.C. and also refused to examine any defense evidence. The trial of the case was concluded and the learned trial court convicted the accused and passed death sentence as Tazir under section 302(b), P.P.C. and also convicted the appellant under section 13, A.O. of 1965 and sentenced the convict/appellant to undergo rigorious imprisonment for seven years, however benefit of section 382-B, Cr.P.C. was extended in favour of the convict/appellant.

3. The learned counsel for the convict/appellant vehemently argued that the conviction/death sentence passed by the trial court is contrary to law and facts of the case as the same is result of mis-reading, non-reading and mis-interpretation of law. The learned counsel for the convict/appellant further argued that the trial court failed to appreciate the evidence according to law as the prosecution has adduced five witnesses, out of them two are government officials while the other two are close relatives of the deceased and the prosecution has bitterly failed to adduce any single independent witness, therefore, the capital punishment passed by the trial court is not sustainable in the eye of law. The learned counsel further argued that the trial court badly failed to consider the fact that the postmortem of the deceased was not conducted, furthermore the prosecution has prepared a faulty site plan wherein the distance from point of shot to the point of standing of the deceased has not been shown which further creates doubts in the case of the prosecution. He further submitted that the convict/appellant is underage and juvenile but the learned trial court did not consider this very legal point while passing the death sentence. The learned counsel for the appellant further submitted that the FIR lodger /complainant is also close relative of the deceased who falsely and malafidly implicated the appellant in the instant case and the trial court has extended each and every benefit of doubt in favour of the prosecution instead of extending the benefit of doubt to the appellant/convict. He further submitted that the prosecution case is full of contradictions and the prosecution has bitterly failed to prove the allegations levelled against the convict/appellant and the learned trial court has also failed to appreciate the material contradictions between the statements of PWs and the record of the case. Furthermore the trial court has extended benefit of doubt illegally in favour of prosecution instead of the appellant therefore the impugned judgment/death sentence imposed on 06-10-2020 is liable to be set aside and the convict/appellant may be acquitted from the charges levelled against him. The learned counsel relied on the following case laws;- 2005 MLD 809 Lahore, 2004 PCr.LJ 482 Lahore, 1999 YLR 1478 Lahore, 2009 PCr.LJ Note 90 Lahore, 2008 YLR 375 Lahore, 2002 PCr.LJ 1914 Peshawar, 2019 YLR Note 1 Lahore, NLR 2017 Criminal 84 Supreme Court of Pakistan, PLJ 2010 Cr.C. Lahore 511, 1996 PCr.LJ 1811; 2013 PCr.LJ 1847 Lahore, 2020 PCr.LJ 68 Peshawar, 2010 PCr.LJ 1709 Lahore and 1998 PCr.LJ 808.

4. On the other hand, the learned Dy.AG vehemently opposed the contentions raised by the learned counsel for the appellant and argued that the FIR has promptly been lodged where names of eye-witnesses are mentioned in the FIR with direct nomination of the convict/appellant as a single accused involved in the instant murder case. The learned Dy.A.G further argued that the motive of offence has also been disclosed in the promptly lodged FIR and the weapon of offence has been recovered from the possession of the convict/appellant on his pointation which is sufficient to connect the appellant with the commission of the offence. The learned Dy.A.G further submitted that the report of the firearm expert depicts that the crime empties were fired from a .30 bore pistol. He further submitted that the statements recorded during trial, site plan and contents of the FIR are in line with the version of the prosecution. He further submitted that there is direct evidence against the convict/appellant for commission of the offence under section 302, P.P.C. and mere procedural defects in the case during investigation shall not demolish the stance of the prosecution. He finally prayed that the judgment/death sentence passed by the learned trial court may be upheld as the learned trial court has rightly arrived at a just conclusion and awarded death sentence to the convict /appellant on the basis of available record and un- impeachable prosecution evidence.

5. We have heard the learned counsel for the parties at length and also gone through the record of the case with their able assistance.

6. The record of the case reveals that the FIR of the occurrence has been lodged promptly wherein the names of eye-witnesses are also mentioned. The presence of eye-witnesses is further established from the inquest report exhibited in the trial court as Exh-PW-2/A by the trial court. Death certificate was got exhibited in the trial court by Dr. Liaquat Hussain as Exh-PW-5/A which also confirms that death of deceased was caused by firearm injuries. One 30 bore pistol was recovered on the pointation of the accused. The crime weapon was sent to Forensic Science Laboratory for expert's opinion which has been received positive. The chemical examiner report also supports the prosecution version.

7. The statements of eye-witnesses despite lengthy cross-examination, could not be shattered by the defense counsel. To satisfy ourselves we also minutely examined the site plan, site inspection report and the inquest report wherein the presence of these eye-witnesses is also mentioned. The defense counsel failed to point out any infirmity in their evidence, which may persuade us to infer otherwise then the conclusion reached at by the trial court.

8. The main contention of the defense counsel that the prosecution has cited only interested witnesses, is also devoid of any force as mere relationship of the witnesses with the deceased is no genuine ground to discard their straight forward and convincing evidence. The presence of eye-witnesses has not been seriously challenged nor shattered.

9. It is a case of a single accused, and especially when no any evidence has been brought on record, which would show the reasons of false implication of the accused in the case. The learned counsel raised a point of minority of the accused in the appeal as well as in the arguments. The record of the case reveals that the ground of age was never raised during the trial nor any suggestion was put to either medical officer or to I.O of the case. The charge framed by the trial court shows the age of the accused as 26 years, which is always asked from the accused and not written by the presiding officer himself. Furthermore, the case was pleaded by one of the most competent and efficient lawyer as defense counsel during trial before the trial court and it could not be even imagined that the appellant if at all was a minor at the time of commission of offence, this aspect could have been ignored by the learned defense counsel, hence we do not agree with this contention of learned defense counsel at this belated stage.

10. The learned counsel for the appellant failed to point out any legal infirmity in the impugned judgment, which is maintained in toto. The Murder Reference No. 02/2020 submitted by the learned trial court is answered in "AFFIRMATIVE". The Criminal Appeal bearing No. 37/2020 is dismissed being merit less. File. JK/2/GB Appeal dismissed.