2014 PLP 348 (SCMR)

EJAZ AFZAL KHAN, J.

These appeals with the leave of the Court have arisen out of the judgment dated 20-5-2009 of the Peshawar High Court, Peshawar whereby the learned Division bench dismissed the appeal filed by the appellant in Criminal Appeal No.15-P of 2010.

2. Brief facts of the case as narrated in para 2 in the impugned judgment read as under:-- "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 DHQ Hospital Swabi made report to Shamsur Rahman ASI (P.W.10) on duty to the effect that on the relevant date, time and place he was present in his 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.P.A./1 on the basis of which F.I.R. Exh.P.A. was registered against the accused under section 302, P.P.C. at Police Station Swabi on 13-10-2004".

3. Points raised and noted at the time of granting leave both the appeals read as under:-- "In Criminal Petition No. 84-P of 2009, the conviction/sentence awarded to the convict/petitioner has been questioned on the ground that prosecution has failed to substantiate accusation against him, whereas in Criminal Petition No. 161-P of 2009 request has been made for enhancement of the sentence of the convict/petitioner by the complainant, on the ground that since the case has been established against him, therefore, he was liable for normal penalty of death.

2. After hearing the learned counsel for both the parties and having gone through the impugned judgment passed by the learned High Court, we grant leave to appeal in both the cases, to examine as to whether the prosecution has succeeded in establishing guilt against the convict/petitioner or otherwise, and if the guilt has been established against the convict/petitioner, what were the circumstances, on the basis of which the normal penalty of death has not been awarded to him".

4. Learned counsel appearing on behalf of the appellant after taking us through the evidence on record sought to canvass at the bar that unconformable contradictions in the statements of the P.Ws. prove that the occurrence was blind and un-witnessed and that the charge has been thrown at the door steps of the appellant just on the basis of suspicion on account of some dispute over the lease of the property. The learned counsel also expressed serious reservations as to the identification of the assailant in view of the time of occurrence which according to the averments made in the F.I.R. took place after Maghrib Prayer. Substitution, the learned counsel added, too cannot be ruled out when one of the P.Ws. admitted in his cross examination that he had been charged by the partner of the appellant for causing injuries on his person. The learned counsel further argued that where the time of report coincides with that of postmortem examination of the deceased, it could easily be deduced that the former was recorded after preliminary investigation. Arguing further, the learned counsel submitted that where number of empties recovered from the spot does not match with the number of injuries, the possibility cannot be ruled out that it was a false and concocted case. Relationship of the P.Ws. with the deceased maintained the learned counsel, would constitute another reason for discarding their testimony, therefore, it would not be in accord with safe administration of justice to maintain conviction on this quality and quantity of evidence.

5. The learned counsel appearing on behalf of the State supported the impugned judgment by submitting that minor discrepancies highlighted by the counsel for the appellant are not of the type as could furnish a justification for discrediting the testimony of the prosecution witnesses which remained un shattered despite searching cross-examination.

6. Learned counsel appearing on behalf of the complainant in Criminal Appeal No. 16-P of 2010 by defending the impugned judgment to the extent of conviction asked for enhancement of sentence by submitting that in the absence of any mitigating circumstance, the appellant was to be awarded normal sentence of death. However, he could not account for delay of 146 days in filing the petition.

7. We have perused the record and also considered the submissions of the learned counsel for the parties.

8. The prosecution to prove its case examined as many as thirteen witnesses. It is the testimony of P.W.7 and P.W.8 furnishing ocular account which has been seriously attacked by the learned counsel for the appellant to make out a case for acquittal. A look at the testimony of the aforesaid witnesses would reveal that they gave a straight forward account of the occurrence during investigation of the case and then in trial. The immediate cause for the occurrence, according to them, was cutting of Null Plants. The appellant as per narration of these witnesses came annoyed on the spot after being armed with a kalashinkov but despite conciliatory attitude of the deceased proceeded to fire at the deceased. Both the witnesses were subjected to a lengthy cross-examination but it could not poke a hole in the testimony of either of them. An effort was made by the learned counsel to project substitution but it appears to be too remote in the circumstances of the case when the parties belonged to the same area and the deceased is not shown to have any enmity with any person. Yes, P.W.8 admitted in his cross-examination that he had been charged by one Sameeul Haq, a partner of the appellant for causing injuries on his person but it, at its best, would constitute a motive to do away with the P.W. and not the deceased. The learned counsel also made an effort to draw some capital from the time of occurrence so as to make identification of the assailant doubtful but it, to our mind, is bound to fall flate firstly because the time thus mentioned being reigned by twilight cannot be termed as dark by any attribute. And secondly because, the P.Ws. and the assailant being from the same village and the same vicinity are known to each other. Therefore, there could be no difficulty in identifying the assailants in such state of light. Related are the P.Ws. to the deceased but it alone would not make their testimony incredible when they have no interest or motive to falsely implicate the appellant. The learned counsel then tried to fish something from a discrepancy, so called in the statements of P.Ws. vis-a-vis the directions in which the appellant bolted away after the occurrence but this too turns out to be incorrect, on discreet reading of the statements. Even if it be so, it is not a discrepancy of the type as could cast doubt over the veracity of the P.Ws. whose statements are consistent and confidence inspiring on material particulars of the occurrence. Time of report undoubtedly coincides with that of postmortem examination of the deceased according to the entries made in the respective documents but this cannot furnish a justification for discarding the testimony of P.Ws. as neither the time of report nor that of conducting postmortem examination is written with mathematical exactitude. Recovery of ten empties from the spot would not have any adverse bearing on the testimony of the P.Ws. when the shot turning effective, according to it as well as medical evidence is one. When seen against this backdrop, we have no doubt in our mind that charge against the appellant has been proved beyond any shadow of reasonable doubt and that he has rightly been convicted. We, therefore, maintain it. The reasons recorded by the learned trial court and the High Court for awarding imprisonment for life also appear to be correct and tenable, we therefore, maintain the sentence. The appeal filed by the complainant for enhancement of sentence besides being misconceived is also barred by limitation. We, therefore, do not feel inclined to interfere with the sentence as well.

9. For the reasons discussed above, these appeals being without merit are dismissed. MH/R-7/SC Appeal dismissed.