2012 PLP 382 (MLD)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Sikandar son of Shana, Mallah by caste, resident of Chhanni Kameer, Hafizabad, appellant, along with Abbas, Ansar, Asghar, Nasar and Abid alias Sony was involved in case F.I.R. No.184 of 2003, dated 10-8-2003, offence under sections 302, 109, 148, 149, P.P.C., registered at Police Station Venike Tarar, District Hafizabad and was tried by learned Additional Sessions Judge, Hafizabad, who vide judgment dated 10-5-2005, convicted the appellant under section 302(b), P.P.C., and sentenced him to imprisonment for life as Tazir with direction to pay Rs.25,000 as compensation to the legal heirs of the deceased as provided under section 544-A, Cr.P.C, and in default whereof, to undergo six months' S.I. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant. The appellant has assailed the judgment of learned trial court through the instant appeal.

2. The prosecution story as alleged in the F.I.R. (Exh.PJ) lodged on the complaint (Exh.PM) of Zafar Iqbal, complainant (P.W.7) is that he is an agriculturist and resident of Kot Kameer. On 7-8-2003 at about 3-00/4-00 p.m. he was on his way to his house along with his father Muhammad Ali carrying fodder for the cattle and when they were three acres away from their village, accused Sikandar armed with gun .12 bore, Ansar armed with Sotta, Abid alias Sony armed with gun .12 bore, Abbas armed with gun .12 bore, Asghar armed with rifle, Muhammad Yar armed with rifle, Amjad armed with pistol .12 bore and Nasar son of Walayat, caste Mallah, resident of Kot Kameer, were sitting ambushed, who abruptly emerged and Ansar accused raised lalkara to kill Muhammad Ali, upon which Sikandar, accused made fire with his gun .12 bore, hitting Muhammad Ali on his back near right shoulder, as a result whereof his father fell down and complainant also saved himself by lying on the ground. All the remaining accused made aerial firing with their respective weapons and on hue and cry raised by the complainant, Shaukat son of Mallah and Mallah son of Shera attracted to the spot and witnessed the occurrence. Thereafter all the accused persons made their good escape while making aerial firing.

3. Motive behind the occurrence is the previous litigation regarding the land and the above-mentioned occurrence had taken place on the abetment/instigation of Ahmad son of Jahana. The complainant took away his father to the DHQ, Hafizabad for treatment from where he was referred to General Hospital, Lahore but he succumbed to the injuries there. It is mentioned in the complaint that the complainant remained busy for the treatment of his father and due to this could not report the matter to police station. On 10-8-2003, complainant presented complaint Exh.PM, upon which Noor Ahmad 11/H.C. (P.W.5) recorded the formal F.I.R., (Exh.PJ) without any addition or omission.

4. After registration of formal F.I.R., Muhammad Hussain S.-I. (P.W.9), Investigating Officer proceeded to General Hospital, Lahore, inspected the dead body, prepared injury statement (Exh.PG), inquest report (Exh.PH) and drafted application for post mortem examination (Exh.PF). The Investigating Officer handed over the dead body to Mukhtar Ahmad and Asghar Ali constables for escorting the same to the mortuary of District Headquarters Hospital, Hafizabad. Thereafter, the Investigating Officer proceeded to the place of occurrence. The Investigating Officer secured blood stained earth from the place of occurrence vide recovery memo Exh.PQ. He also prepared rough site plan of the place of occurrence (Exh.PR). After postmortem examination upon the dead body of deceased, the said constables produced last worn clothes of deceased i.e. Qameez (P-3), and Tehmand (P-4) and one sealed phial said to contain pellets (P-6), which the Investigating Officer took into possession vide recovery memo Exh.PO. On the direction of the Investigating Officer and on the pointing out of the prosecution witnesses, Halqa Patwari (P.W.10), prepared scaled site plan Exh.PS and Exh.PS/1 on 13-8-2003. On 19-9-2003, the Investigating Officer arrested the appellant and on 28-9-2003 during the physical remand, the appellant after making disclosure, led to the recovery of weapon of offence i.e. gun .12 bore (P-5) from his residential house, which the Investigating Officer took into possession vide recovery memo Exh.PP. The Investigating Officer also recorded the statements of the prosecution witnesses under section 161, Cr.P.C.

5. During the course of investigation, the Investigating Officer found the appellant guilty and submitted report under section 173, Cr.P.C, to the court of competent jurisdiction, which was en-routed through Illaqa Magistrate as provided under section 190(2), Cr.P.C. The learned Additional Sessions Judge, Hafizabad vide order dated 30-6-2004, formally charge sheeted the appellant. The accused pleaded not guilty and claimed trial. Prosecution in order to substantiate its case, produced as many as 10 prosecution witnesses.

6. Occular account in this case has come out from the statements of Zafar Iqbal, complainant (P.W.7) and Shaukat Ali, (P.W.8). Muhammad Hussain, S.I. (P.W.9), is the Investigating Officer of the case. Captain Dr. Khalid Farooq, S.M.O, District Headquarters Hospital, Hafizabad, (P.W.4) had conducted the postmortem examination upon the dead body of Muhammad Ali deceased and found following injury on his person:-- "(1) Fire arm entry wound 3/4 cm x 3/4 penetrating deep on the right scapular area 4 cm towards right from the mid line of the chest just near the upper inner angle of scapular. Edges were inverted and slightly pale." After conducting the postmortem examination, the doctor arrived at the following opinion:- "Death in my opinion due to excess haemohrrage and injury to the spinal cord as result of fire arm injury No.1 which lead to shock and cardiopulmonary arrest which was fatal and sufficient to cause death in ordinary course of nature individually. This injury was ante-mortem and was inflicted by firearm weapon. Death occurred about 48 to 60 hours after receipt of injury and post mortem examination was conducted within 12-18 hours." Statements of rest of the prosecution witnesses are formal in nature.

7. On 10-12-2004 the learned Assistant District Attorney gave up Ghulam Ahmad S.-I., P.W. being unnecessary. On 10-3-2005, the learned A.D.A. while tendering in evidence the report of Chemical Examiner as Exh.PT, report of Serologist as Exh.PU and report of Forensic Science Laboratory as Exh.PV, closed the prosecution evidence.

8. Sikandar son of Shana, appellant was examined under section 342, Cr.P.C; wherein he opted to appear under section 340(2), Cr.P.C. as a witness of his own to disprove the allegations levelled against him, if necessary and also opted to produce defence evidence. In response to the question why the case is against him and why the P.Ws. deposed against him, the appellant made the following deposition:-- "There were cases of theft against the deceased and his family members. Prior to the occurrence Muhammad Ali, deceased had stolen the cow of one Muhammad Inayat and subsequently he had to return the said cow to Muhammad Inayat by the intervention of the co-villagers, but the deceased had suspicion that I gave spy information against him regarding the theft of cow. On the day of occurrence I was coming to my house and when I reached near dera of Mian Taj, Muhammad Ali deceased armed with .12 bore gun fired at me which hit me and to save my life I fired in my defence and one pellet hit the deceased Muhammad Ali. No P.W. was present at the spot at the time of occurrence. All the P.Ws. are interse related and inimical towards me. During investigation and during trial in the court the prosecution with mala fide intention and connivance with complainant party concealed the fact of my injury. I am innocent. " The appellant, however, neither produced evidence in defence nor appeared under section 340(2), Cr.P.C.

9. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellant in the above stated terms.

10. Learned counsel for the appellant submitted that there is a delay of three days in lodging the F.I.R., which has not been explained plausibly by the prosecution. It is argued that in the instant case, the occurrence is admitted, however, the mode and manner of occurrence has not been mentioned accurately. As a matter of fact Muhammad Ali deceased, made a fire shot with gun .12-bore upon the appellant hitting on his shoulder and the appellant in exercise of right of self defence, made a fire shot, which hit Muhammad Ali as a result of which he died. The prosecution has suppressed the injury on the person of the appellant nevertheless this fact finds mention in the statement of the Investigating Officer. Moreover, Captain Dr. Khalid Farooq (P.W.4) had also admitted during the cross-examination that the appellant was also medically examined by him on the same day at 8-00 p.m., brought by a constable, who also received carbon copy of the MLR. Learned counsel vehemently submitted that death of the deceased had occurred due to delayed treatment as before shifting to hospital, he was brought at Police Station, where in view of statement of Zafar Iqbal complainant, they remained for 30 minutes. Learned counsel further stated that statements of the prosecution witnesses of occular account are at variance and testimony of the prosecution on this account is, in no way, believable. Learned counsel further stated that it has come in the evidence of Zafar Iqbal (P.W.7) that he had informed the police about the incident on the day of occurrence at Police Station, where they remained there about 30 minutes, but this fact does not find mention in the crime report. Learned counsel lastly submitted that this is a case in which evidence is not confident inspiring, prosecution failed to prove its case against the appellant beyond shadow of reasonable doubt, therefore, he is entitled to be extended benefit of doubt and his ultimate acquittal from the charge.

11. As against above, learned Deputy Prosecutor General has vehemently opposed the contentions raised on behalf of the appellant. It is contended that delay in lodging the F.I.R. has been properly explained. It was a daylight occurrence. The prosecution through leading cogent and confidence inspiring evidence of the occular account has succeeded to prove its case against the appellant beyond reasonable doubt; therefore, the learned trial court was well within its jurisdiction to convict the appellant. Learned counsel further stated that medical evidence fully substantiates the prosecution case as the injury assigned to the appellant finds mention in the postmortem report. Learned D.P.-G. further stated that recovery of gun .12-bore from the appellant also connects him with the commission of offence. It is further argued that motive has been fully proved. Learned counsel further stated that minor discrepancies in the prosecution evidence are human error and these cannot be made basis for acquittal of the appellant in any manner whatsoever. It was lastly argued that while convicting the appellant, the learned trial court has advanced very cogent reasoning.

12. Arguments advanced from both sides have been heard. I have also gone through the record available on file with the able assistance of learned counsel for the appellant as well as learned Deputy Prosecutor General.

13. In this case, the occurrence is admitted. As per prosecution the appellant along with his co-accused, having been ambushed with an intent to kill Muhammad Ali, father of the complainant, had made fire upon him with specific motive. The fire hit Muhammad Ali on the back side near the left shoulder, who succumbed to the injury later on. The version of the appellant is quite contrary to that advanced by the prosecution viz. the deceased made a fire shot with gun .12-bore hitting the appellant on his left shoulder and the appellant was constrained to exercise his right of self defence. Consequently fire made by the appellant hit Muhammad Ali deceased. It is also the defence case that the injury sustained by the appellant at the hands of Muhammad Ali deceased was suppressed by the prosecution all through the case. Neither does it mention in the crime report nor the prosecution witnesses of occular account depose even a single word in this regard. However, the doctor (P.W.4) in cross-examination had admitted that the appellant was also examined by him on the same day at 8-00 p.m. and injury on the person of the appellant was result of firearm. This P.W. further stated that MLR qua the appellant was also handed over to the constable, who had brought the appellant for medical examination. Similarly, the Investigating Officer had also admitted it correct that on 7-8-2003 Muhammad Ali deceased and Sikandar accused were brought in the police station in injured condition. Further that it was also in his knowledge that both the injured were sent to RHC, Venike Tarar through Mukhtar Ahmed constable. According to testimony of the Investigating Officer though during the course of investigation he had come to know that the appellant was also injured during the occurrence, however, he had not investigated the case on this score.

14. Zafar Iqbal (P.W.7) is the complainant of the case, who deposed in line with the story alleged in the crime report. He in his cross-examination, however, admitted that on the day of occurrence, after sustaining injury, Muhammad Ali was brought to police station; where they remained for 30 minutes and he had also described the incident to the police. However, neither the F.I.R. was registered on the same day nor this fact finds mention in the crime report. Moreover, in such circumstances the contention of learned counsel for the appellant that life of Muhammad Ali could have been saved, had he been shifted to hospital immediately after sustaining injury and his death is result of delayed treatment because he remained at Police Station for more than 30 minutes, has much weight. Similarly, in the statement of Shaukat Ali (P.W.8), the other witness of the occular account, it is alleged that though he had witnessed the occurrence from a close range, however, he did not accompany the complainant while shifting Muhammad Ali, deceased to the hospital. He had admitted that Muhammad Ali was his maternal uncle. When any person sustains injury with firearm weapon, non-accompanying of a close relative like Shaukat Ali, in order to shift the injured to hospital, does not appeal to prudent mind Moreover, when this P.W. had not accompanied the complainant, why he did not report the matter to the police Such discrepancies in the deposition of material witness of the prosecution, who is not only close relative of the complainant but the deceased is also his maternal uncle, creates dent in the prosecution evidence. This fact when juxtaposed with the plea taken by the appellant that he made fire in exercise of self-defence, the latter though might not be altogether correct but inspires confidence.

15. The upshot of the above discussion is that though the prosecution story is correct to the extent of occurrence, however, the manner and mode of occurrence as stated by the complainant does not sound sense. The version of the appellant qua the occurrence, on the other hand, though might not be exact as depicted in the statement recorded under section 342, Cr.P.C; however, it can be equated with the version of the prosecution. In this backdrop of the situation, at the most case against the petitioner attracts ingredients of section 302(c), P.P.C., and the learned trial court fell in error while convicting the appellant under section 302(b), P.P.C. Respectful reliance in this regard is placed on Syed Ali Bepari v. Nibran Mollah and others (PLD 1962 SC 502); wherein at page 507, the august Supreme Court of Pakistan has been pleased to observe as under:-- "Here we may observe that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimize one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inference that properly flow from the evidence and circumstances...."

16. Now question arises that if the appellant is convicted under section 302(c), P.P.C., what sentence should be in exact proportionate. Following points may help in determining this question:-- (i) The appellant was fired upon by Muhammad Ali deceased, who sustained injury, which fact is proved in the testimony of P.W.4. and that of the Investigating Officer. (ii) The prosecution suppressed injury inflicted upon the appellant all through this case. (iii) After the incident the injured was brought at Police Station first, where as per statement of the complainant, they remained for 30 minutes without any medical aid to Muhammad Ali, deceased. (iv) Conduct of Shaukat Ali (P.W.8), alleged eye-witness of the occurrence, who is closely related to the complainant as well as to the deceased qua non-accompanying the complainant to shift Muhammad Ali to hospital in an injured condition and non-reporting of occurrence to the police. (v) The appellant is behind the bars since his arrest on 19-9-2003 and this period spreads over more than seven years excluding any remission, which admittedly the appellant should have earned. Careful consideration of all these facts leads this Court to the only one conclusion that in the circumstances, for safe administration of criminal justice, sentence of the appellant already served would be suffice.

17. For the foregoing reasons, the sentence of the appellant is reduced from life imprisonment to one already undergone by him. However, his sentence of fine and the effect in case of default in the same, would remain as directed by the learned trial court. With the maintaining his conviction and the above reduction in his sentence, the instant criminal appeal is dismissed. N.H.Q./S-201/L Order accordingl