2009 PLP 2148 (YLR)

SHAHJI RAHMAN KHAN, J.--This Criminal Appeal filed by the convict-appellant Roohul Amin is directed against the judgment dated 29-4-2006 passed by Additional Sessions Judge-II, Swabi whereby he has been convicted under section 302(C), P.P.C. and sentenced to life imprisonment and to pay compensation of Rs.200,000 to the legal heirs of the deceased or in default to further undergo simple imprisonment for six months. However, the benefit of section 382-B, Cr.P.C. was extended to him. The complainant Ghulam Rahman is also aggrieved from the said judgment of the learned Additional Sessions Judge and has challenged the same through Criminal Revision No.95 of 2006 for enhancement of the sentence of imprisonment for life to that of death. Since both the appeal and revision are the outcome of one and the same occurrence and common judgment, these are being disposed of by this single judgment.

2. The prosecution story in brief as unfurled in the F.I. R. Exh. P. A. lodged by complainant Ghulam Rahman (P.W.7) is that while having brought the dead body of his deceased brother Shafiur Rahman to the Casualty Department at D.H.Q. Hospital Swabi made report to Shamsur Rahman A.S.-I. (P.W.10) on duty to the effect that on the relevant date, time and place he was present in this house along with his brother Shafiur Rahman. In the meanwhile accused Roohul Amin son of Muhammad Shuaib called them. In response he and the deceased Shafiur Rahman came out from their house where accused Roohul Amin was present duly armed with Kalashnikov and inquired from him as to why he had cut his "Null Plants" and brought to his house. The deceased Shafiur Rahman started reconciliation but the appellant started firing at him as a result of which he was hit, sustained injuries and later on succumbed to the injuries. After the occurrence, the appellant bolted away and he being empty handed, could not chase the appellant accused. Besides him, the occurrence was also witnessed by Munawar Said (P.W.8). Motive for the offence was stated to be that the appellant was annoyed over the cutting of the Null Plants. This report of the complainant was sent through Sair Zaman FC (P.W.1) to the police station in the shape of murasila Exh. PA/1 on the basis of which F.I.R. Exh. PA was registered against the accused under section 302, P.P.C. at P.S Swabi on 13-10-2004.

3. On receipt of copy of the F.I.R, Raid Ali Khan A.S-I. (P.W.12) proceeded to the spot and took into possession blood-stained earth from the place of the deceased vide memo Exh.P.W. 5/1. Likewise 12 empties of 7.62 bore Exh. P-1/12 were taken into possession by him vide memo. Exh.P.W.5/2. He also prepared the site-plan Exh.PB. He also took into possession the blood-stained garments of the deceased vide memo Exh.P.W. 6/1. He had also recorded the statements of the prosecution witnesses under section 161, Cr.P.C. and sent the blood-stained articles to the Forensic Science Laboratory for analysis vide his application Exh. P. W.12/1. Similarly, the empties were also sent to the Arms Expert for safe custody through application Exh. P.W.12/2. Rest of the investigation was conducted by Salar Khan S.-I.

4. Salar Khan S.-I. appeared at the trial as P.W.11. He had produced the accused before the Court for taking his police custody vide application Exh.P.W.11/1. According to him, he had interrogated the accused who opted to point out the spot to him for which purpose he being in police custody led them to the spot and made pointation memo. Exh. P.W.9/1 in this regard. He also had recorded statements of some of the P.Ws. as well as of the accused under section 161, Cr.P.C. vide application Exh.P.W.11/2, this P.W. had produced the accused for confession to the Court but on refusal of the accused to make such statement, he was sent to judicial lock-up. He stated that the accused had been arrested by Tariq Suhail Inspector S.H.O. who has issued his arrest card as Exh.P.W.11/5 and after completion of the investigation the said Inspector S.H.O. had submitted complete challan against the accused in the trial Court.

5. The appellant-accused was provided with the copies of the relevant documents in terms of section 265-Cr.P.C. on 14-3-2005 and formal charge was framed against him on 21-3-2005 to which he pleaded not guilty and claimed trial.

6. The prosecution in support of its case produced as many as 13 witnesses whose statements were recorded and on conclusion of the trial statement of the appellant/accused was recorded under section 342, Cr.P.C. wherein he professed innocence and claimed false implication in the case due to strained relations with the complainant party over land dispute. He did not record his statement on oath under section 340 (2), Cr.P.C. and also declined to lead evidence in his defence. After hearing arguments of either party, the learned trial Court convicted the appellant under section 302 (C), P.P.C. and sentenced him as mentioned above. Hence this appeal.

7. A resume of the prosecution evidence may be narrated herein as under: Sair Zaman FC (P.W.1) has simply brought murasila to Police Station Swabi from D.H.Q. Hospital Swabi. Pazeer Zada (P.W.2) had escorted the dead body of the deceased Shafiur Rahman for PM examination. Gohar Ali Khan A.S-I. (P.W.3) has registered the case against the appellant vide F.I.R. Exh. PA on receipt of murasila Exh./PA.1. Dr. Muhammad Ijaz Khan SMO (P.W.4) had on 13-10-2004 conducted autopsy on the dead body of the deceased Shafiur Rahman and found the following:-- Fire-arm entry wound 1 1/2 x 1 1/2 c.m. on the left side of chest near the right nipple. Fire-arm exit wound 2 1/2 x 2 1/2 c.m. on the left side of back. Walls, ribs and cartilages, frontal left 5th and 6th ribs fractured. Pleurae, right lung, left lung, pericardium and heart and blood vessels ruptured. Stomach was healthy and having semi digested food. Death in the opinion of the doctor caused due to injuries to vital organs (heart and lungs and large vessels leading to severe bleeding due to fire-arm. Probable time between death and post-mortem examination was round about two hours. Islamuddin (P.W.5) had identified the dead body to be that of the deceased Shafiur Rahman. He is also marginal witness to the recovery memo Exh.P.W.5/1 and Exh. P. W .5/2 whereby the Investigating Officer had taken into possession blood-stained earth and 12 empties of 7.62 bore from the spot respectively. Naeem (P.W.6) is the marginal witness to recovery memo Exh.P.W.6/1 vide which the Investigating Officer had taken into possession blood-stained garments of the deceased. Ghulam Rahman complainant (P.W.7) has stated that on the day of occurrence after Maghrib prayers, he along with his brother Shafiur Rahman deceased were present in their house; that accused Roohul Amin who was armed with Kalashnikov asked him as to why they have cut "nul" plants; that the deceased started reconciliation with the accused but the appellant/accused started firing at the deceased as a result of which he got injured and died; that the accused then decamped from the spot; that he then made report to the police which was recorded in the shape of murasila Exh.PA/1. Motive for the occurrence was stated by him to be annoyance of the accused over the cutting of the "nul" plants. Munawar Said (P.W.8) has stated that the deceased was his nephew and on the day of occurrence after Maghrib prayer he went to the nearby pump for urination when he saw the deceased and the complainant in altercation with the accused. The accused started firing with his Kalashnikov as a result of which the deceased was hit, injured and later on succumbed to his injuries. He pointed out spot to the Investigating Officer. Mumtaz Khan A.S-I. (P.W.9) has stated to be marginal witness to the pointation memo. Exh.P.W.9/1 whereby the accused pointed out the spot to the Investigating Officer Shamsur Rahman Khan A.S-I. (P. W .10) stated to have recorded the report of the complainant in the shape of murasila Exh.PA/1 which he sent to the police station for registration of the case. He has also prepared the injury sheet of the deceased Exh. P.M./2 and inquest report Exh. P.M/1 and sent the dead body for post-mortem examination. Salar Khan S.-I. and Raid Ali Khan A.S-I. have appeared at the trial as P.W.11 and P.W.12 respectively and the parts taken by them in the investigation of the case have already been mentioned in the preceding paragraphs of this judgment. The last prosecution witness is Khanan who appeared as P.W. 13 at the trial. He stated that on the day of occurrence at evening time he offered Maghrib prayers in his fields where he was busy in zamindara work. When at about 6-00 p.m. he heard the report of fire shots. He was proceedings to his house from the field. On the way he saw the accused Roohul Amin duly armed with machine (Kalashnikov) running towards his house side. When he went to the spot, he saw Shafiur Rahman and learnt that the deceased was fired at by accused Roohul Amin. He stated that his statement was recorded by the Investigating Officer on the following day at morning time.

8. The learned defence counsel Barrister Muhammad Zahoor-Ul-Haq vehemently contended that the crime was not witnessed by the eye-witnesses; that 12 empties of 7.62 bore were taken into possession from the spot but the deceased had sustained only one injury which is not commensurate with the number of empties recovered from the spot; that during the days of occurrence the time of Maghrib prayers was 5.45 p.m. therefore, the report lodged at 1945 hours was delayed by two hours and that after deliberation and consultation the convict-appellant was falsely implicated in the case; that the Medical Officer while appearing as P.W.4 has stated that he conducted autopsy on the dead body of the deceased Shafiur Rahman at 1945 hours and so was stated by Shamsur Rahman A.S-I. (P.W.10) thereby creating doubts that report was lodged after conducting post-mortem examination. The learned counsel also pointed out contradictions in the statements of the eye-witnesses and submitted that it being a case of no evidence, the conviction and sentence of the convict appellant could not be sustained on such like weak and doubtful type of evidence, therefore, the appellant is entitled to be acquitted.

9. Conversely, Mr. Abdur Rauf Khan Gandapur, Advocate, the learned counsel for the State assisted by learned counsel for the complainant Mr. Khawaja Muhammad Khan, Advocate, maintained that single accused is charged and no reason can be extended for false charge. They argued that it is a daylight occurrence and report was promptly made with specific role attributed to the appellant. In their view, the eye-witness account is supported by medical evidence, recovery of empties and abscondance of the appellant after the occurrence. Reliance was placed on 1978 SCMR 136, 2008 SCMR 565, 2003 SCMR 522 and 474, 2007 SCMR 876 and 2010 SCMR 90.

10. We have anxiously considered the arguments of the learned counsel for the parties and meticulously gone through all the material available on the record with their valuable assistance.

11. A perusal of the record would reveal that the death of Shafiur Rahman deceased stands proved by violence in light of the evidence, therefore, the point for determination in this case is as to whether the tragedy was enacted by the convict appellant or not. The prosecution case against him rests on (a) ocular evidence furnished by Ghulam Rahman (P.W.7) and Munawar Said (P.W.8), (b) medical evidence and incriminating articles and (c) abscondance of the appellant/accused. Both the eye-witnesses have consistently claimed that it was the appellant who fired upon the deceased with Kalashnikov and the Medical Officer Dr. Muhammad Ijaz Khan (P.W.4) has also found only one fire-arm injury on the person of the deceased and despite of lengthy cross examination, the credibility of both the eye-witnesses could not have been shattered by bringing on record material contradiction going into the roots of the prosecution case. It is broad-daylight occurrence and the parties were known to each other. There is therefore no mis identification in charging the appellant and substituting him for the real culprit. Therefore statements of the eye-witnesses cannot be disbelieved. No doubt, both the P.Ws. are inter related but their evidence cannot be discarded merely because of their inter se relationship as they have furnished plausible explanation and reasons for their presence at the place of occurrence at the relevant time. Generally, ocular account is furnished by close relative of the deceased and because of lack of responsibility never independent witnesses come forward despite their moral, legal and religious duty. The medical evidence in this case is in conformity with the ocular evidence. In 1997 PCr.LJ (sic) it was held as follows:-- "The ocular account was natural, credible and trustworthy and was fully corroborated by the evidence of prosecution witnesses who had reached the scene of occurrence soon after the incident as well as by the medical evidence

Prosecution had, thus, established its case beyond reasonable doubt

Conviction of accused was upheld accordingly".

12. The contention of the learned counsel for the appellant that the delay in reporting the crime to the police was consumed in deliberation and consultation to implicate the convict appellant is not tenable because a single accused was charged for the offence and substitution of real culprit is a rare phenomenon. No doubt Shamsur Rahman A.S-I. (P.W.10) has claimed that he recorded report of the complainant at 1945 hours and likewise it was stated by Dr. Muhammad Ijaz Khan (P.W.4) that he conducted autopsy on the dead body of the deceased at 1945 hours but neither explanation was sought from them while they were being cross examined by defence counsel nor premium can be placed on their statements to screen the appellant from the offence. When evidence of the prosecution is overwhelming, strong and consistent, the dis-appearance of the L appellant after the occurrence lends support to the prosecution.

13. Thus, examining the case from every angle, the irresistible conclusion which can be arrived at is that the prosecution has proved its case against the convict-appellant beyond reasonable doubt and he is liable for the murder of Shafi-ur-Rahman under section 302 (b), P.P.C. and not under section 302 (c) P.P.C. as held by the learned trial Court. The maximum leniency has already been extended to the appellant by the trial Court and in view of the circumstances dilated upon by it, we considered that the punishment of death is not justified because of the mitigating circumstances mentioned in the impugned judgment.

14. For what has been discussed above, the Criminal Appeal fails and it is accordingly dismissed. The Criminal Revision brought by complainant for enhancement of the sentence is also dismissed. H.B.T./137/P Appeal dismissed.