2005 PLP 2774 (YLR)

CH. IFTIKHAR HUSSAIN, J.

Shaukat Ali son of Sultan Ali, caste Jat, presently resident of Muslim Colony, Pasrur was tried under section 302, P..P.C. is case F.I.R. No.303 registered with Police Station Pasrur, District Sialkot on 5-6-1997 for on the same day at about 8-45 p.m. while armed with .30 bore pistol, in Muslim Colony, Sathra Road, Pasrur committing the Qatl-e-Amd of Mubashar Ahmad, the deceased son of complainant Bashir Ahmad.

2. On the conclusion of his trial, he was found guilty of the charge and so vide the judgment rendered by Malik Falak Sher Farooka, learned Additional Sessions Judge, Sialkot on 30-3-2000 was convicted under section 302(b), P.P.C. and sentenced to death subject to confirmation by this Court and to pay Rs.70,000 as compensation to the legal heirs of the deceased and in default thereof to further suffer six months rigorous imprisonment.

3. He feeling himself aggrieved of the same has assailed the same by way of the instant Appeal (No. 344 of 2000).

4. The murder reference mentioned above (No. 129 of 2000) has been submitted to this Court for confirmation of his sentence of death as required under section 374, Cr.P.C.

5. As both these matters have arisen out of one judgment in a case, hence are being disposed of by this single judgment.

6. Briefly the facts relevant for the disposal of these two are that the said case has been registered on the statement Exh. PA of the complainant Bashir Ahmad (P.W.1) on 5-6-1997 at 9-35 p.m. He has mentioned therein that he for the last 25 Years is residing in Muslim Colony, Pasrur. Re has five shops on Sathra Road on the back of his house. On that day at about 8-45 p.m., he and his sons Shahid Ahmad and Mubashar Ahmad were standing in front of their shops and talking about their domestic affairs. There was complete light of the electric bulbs in the opened shops. At that time the Car No.5 STD stopped near them. Shukat son of Sultan, caste Jat, resident of Muslim Colony, Pasrur came out of the same. He was armed with pistol. He pointed out the pistol straight towards his son Mubashar Ahmad and said to him that he would do him to death and with the same fired at him, which hit him near his neck and it went through his body and he fell down. He and his son Shahid Ahmad took care of him but he succumbed to his injuries instantaneously. The incident besides his own self and Shahid Ahmad was witnessed by Muhammad Anwar son of Sardar, caste Jat, resident of Chahr Batwa presently resident of Muslim Colony, Pasrur, who too was present there. The accused, thereafter, while firing sat in the car and drove it away. The motive behind the occurrence is that about two days prior to that incident accused Shaukat was driving car rashly in the street in front of their door Mubashar Ahmad apprehending damage due to the same, forbade him from doing so. The accused, thereupon, threatened him of dire consequences and on account of grudge over it murdered him.

7. The appellant after the incident had absconded. He, however, in the investigation was found involved in the matter and so was challaned to the Court.

8. On his arrest, he was put to trial under section 302, P.P.C. in the case for committing the Qatl-e-Amd of the deceased on the above said date, time and place by causing his death. He pleaded not guilty to the charge.

9. The prosecution at his trial examined it's 14 witnesses in all. They were Bashir Ahmad complainant (P.W.1), Muhammad Anwar (P.W.2), Dr. Syed Rashid Hussain (P.W.3), Muhammad Ramzan-C. (P.W.4), Anwar-ul-Haq-C (P.W.5), Tahir Majid, S.-I. (P.W.6), Muhammad Arif (P.W.7), Muhammad Sarwar-C (P.W.8), Noor Sultan-HC (P.W.9), Masood Ahmad Bhatti, Draftsman (P.W.10), Muhammad Pervaiz Iqbal-MHC (P.W.11), Muhammad Anwar, S.-I. (P.W.12), Muhammad Jamil-HC (P.W.13) and Muhammad Yasin-A.S.-I. (P.W.14).

10. The report of Chemical Examiner Exh. PQ and that of the Serologist Exh.PR and of the Forensic Science Laboratory Exh. PS were tendered in the evidence.

11. He is his examination under section 342, Cr.P.C. had denied the allegation appearing against him in the prosecution evidence. He pleaded false implication in the case on account of enmity with the then local M.P.A., Munawar Ali Gil. He also denied the recovery of crime weapon pistol P-4 from him. He pleaded as follows: "The witnesses are inter se related and are also related to the deceased. This case was registered at the behest of Munawar Ali Gil, the then M.P.A. of the ruling party who was Mamoon i.e. Maternal uncle of one Amanat Ali Towana son of Allah Ditta (a police constable posted at P.S. Pasrur), who was a strong party-man of the present complainant, being a police official and was one of the influential persons over the local police, on behalf of Munawar Ali Gil, M.P.A. Even at the time of registration of the case, Amanat Ali Towana has been shown to be present in the case diary duly admitted by Anwar Investigating Officer (P.W.12). In fact, the complainant and his family permanently reside in village Kakhwali, Police Station Philloura, situated at a distance of about 25 miles from the place of occurrence, as the distance is admitted by the P.Ws. 1 and 2 . The deceased was a college student of Government Degree College, Pasrur, and was an active member of the students organization working against Anjuman Tulaba Islam and Islami Jamiat Tulba, being Qadiani by faith, and was also inimical towards them. On the night of the occurrence, he had a cross-firing with the opponents, rival student group, in the dark while coming running, leaving behind somewhere his shoes and was hit somewhere and fell down in front of the closed shops, situated in suburb area of Pasrur Town, which is in fact a village abadi named as Muslim Colony. The complainant was so influential, being Ex-police officer and had recently retired prior to the occurrence, and with the help of the local M.P.A. and his nephew Amanat Ali Towana even got changed the dates on the documents by overwriting, from 6-6-1997 to 5-6-1997, just to got registered a case on back date and back time' and these facts of over-writing and change of dates, had been admitted by P.W.12, Anwar Ali, S.-I Investigating Officer, who had recorded the complaint Exh.PA and reduced into writing the injury statement, application for post-mortem and inquest report etc. I am victim of malicious prosecution of an unseen occurrence being one of the supporters of Ch. Abdul Sattar who lost the election against Munawar Ali Gil Group, the then M.P.A. of the ruling party a very aggrieved person who was involved in cases of maltreatment of Lady School Teacher, A.D.H.O. (Women) of Pasrur etc. As Munawar Ali Gil was after me to get me murdered or to be killed in some fictitious police encounter, so I remained away to save may life and then I after moving to the superiors of police, surrendered in the last week of January, 1999 and was kept in police station in illegal custody and later on was formally shown to be arrested on 28-2-1999. The recovery of pistol Exh P.4 was planted upon me by Tahir Majid, S.-I./Investigating Officer (P. W.) in collusion with the complainant which was in fact already a case property of case F.I.R. No.119 of 1999, P.S. Pasrur, registered under sections 13/20/1965 Arms Ordinance against one Muhammad Arshad son of Muhammad Boota, resident of District Faisalabad. In my support of my version, certified copy of the F.I.R. has been produced as Exh. DB. I have also exhibited the colour photographs of the place of occurrence and the shops of the complainant as claimed in front of which the dead body of the deceased was found by the police. The photograph Exhs.DA/1 to 4 were duly identified to be of the some shops owned by the complainant, by P.W.12, Anwar Ali, S.-I./I.O., who recovered the dead body and also secured the blood-stained earth and also prepared the unscaled plan of' the place of occurrence as well as scaled plan, in his presence. In the photograph there is no bulb light or any source of light in the street in front of the shops. So the fabrication by the draftsman, under the influence of the complaint, are established. The complainant himself is not well-acquainted with the place of occurrence as he has himself shown his inability to identify his shops in the photograph, but has categorically denied the same. The complainant is a rich police officer having means and sources to influence the investigating agency and to procure false witnesses against me."

12. He, however, has admitted that he had remained absconding after the incident. He in this regard has stated that:-- "I came to know about my false involvement in the case after many days of registration of the case as the then local M.P.A. of the ruling party Mr. Manwar Ali Gil, was deadly against me and was perusing to get me murdered in a false police encounter. So, to save my life and out of fear of victimization by said Munawar Ali Gil, M.P.A., I remained away and later on I made applications to the superior police officers for my safety. I surrendered myself to the police much prior to 28-2-1999."

13. He tendered the letter of his appointment Exh.DB, attested copy of application of Sapurdari of the car Exh.DC, attested copy of the order dated 2-12-1998 on that application Exh.DD, attested copy of the F.I.R. No.122 of 1999 Exh.DE, attested copy of the F.I.R. No.219 Exh.DF and the copy of spot Inspection Note Exh.PG in his defence. He, however, himself did not opt to appear on oath in disproof of the allegation appearing against him in the prosecution evidence as required under section 340(2), Cr.P.C.

14. The learned trial Court after hearing the parties came to the conclusion that the charge of the Qatl-e-Amd of the deceased against him stood proved on the record beyond any shadow of reasonable doubt. It, consequently vide the impugned judgment had convicted and sentenced him as mentioned above.

15. It has been argued on his behalf that the occurrence was of dark hours of the night, so the identity of the assailant could not be proved on the record above doubt; that according to Bashir Ahmad complainant other persons were also present at the spot at the relevant time but none except than him and Muhammad Anwar P.W., who is from his brotherhood and belonged to another place than that of the occurrence was produced at his trial; that the presence of Bashir Ahmad at the spot at the relevant time was not probable and so he could not be safely relied upon; that Muhammad Anwar P.W. is a chance witness and so his evidence was worthy of placing no reliance safely without corroboration; that the circumstances in the evidence have gone to prove that the F.I.R. in this case was lodged after the post-mortem examination and it is so evident from the fact that in all the police papers the name of the accused had not been mentioned and this also shows that it was after due deliberations and consolidations, that the venue of occurrence was also not the same as the doctor after the post-mortem examination did not hand over the foot wear of the deceased to the concerned constable and the same shows that he at the time of occurrence was barefooted and this circumstance heavily supports the plea of the appellant that the deceased was fired at by some of his rival student group in the darkness of the night and he in order to save himself started to run away and in that process his shoes were left behind somewhere; that there was overwriting on certain police exhibited documents and the post-mortem report regarding the date of the death and post-mortem examination of the deceased and all this shows that the investigation was biased against him and the I.O. under the influence of the complainant party had not only been himself rectifying the omissions or mistakes in the record and he rather had also prevailed upon the doctor to make similar corrections in the post-mortem report to bring it in line with the case of the prosecution; that in the first inspection note on the police record, it has been mentioned that a led bullet was found near the dead body and this shows that the deceased had received fire-arm injury as a result of exchange of fires between him and some assailant and so this circumstance creates heavy doubt qua the veracity of the prosecution version; that the recovery of the crime weapon pistol P-4 was in consequential as no crime empty was sent to the Expert for matching with the same, that the motive in this case has also not been proved on the record; that he has satisfactorily explained the cause of his abscondence and the same in the given circumstances could not be used against him and in corroboration to the ocular account of the prosecution; and that in any case heavy shadows of doubt had been lurking upon the prosecution case and so the learned trial Court has erred in convicting and sentencing him. In the alternate, he has pleaded that in case, it if may be found by this Court that he is guilty of committing the Qatl-e-Amd of the deceased, he then is not liable to be sentenced to death as the motive against him in the case has not been proved convincingly.

16. As against the same, the learned State counsel assisted by the learned counsel for the complainant has supported the impugned judgment saying that the prosecution's ocular account was furnished by the reliable witnesses; that the presence of P.W. 1 Bashir Ahmad at the spot at the relevant time was highly probable; that the presence of P.W.2 Muhammad Anwar at the spot too has been satisfactorily established though he resides at an other place than that of the occurrence; that the medical evidence has fully supported the ocular account of the prosecution; that the motive has also been proved on the record; that the abscondence of the appellant had remained unexplained by him satisfactorily and this is heavy circumstances in corroboration to the ocular testimony connecting him with the Qatl-e-Amd of the deceased beyond any shadow of reasonable doubt; that the absence, insufficiency or weakness of motive could not be taken as a mitigating circumstances for award of lesser penalty than the death to him. In this regard reliance has been placed upon the cases of Saeed and 2 others v. The State (2003 SCMR 747) and Muhammad Akbar and another v. The State (PLD 2004 SC 44).

17. We have carefully considered the submissions made on behalf of the parties with the help of the available record.

18. The prosecution in support of it's case against the appellant has relied upon its ocular testimony supported by the medical evidence, the recovery of crime weapon pistol P-4 from his petrol pump at his pointation, the motive and his abscondence after the incident for a considerable period of about two years.

19. As against the same he has pleaded bare denial. His plea rather, as is obvious from the above position is that the deceased was killed by some of his rival student group at dark hours of the night and that was an unseen occurrence. He has pleaded false implication on account of enmity with the then local M.P.A. Munawar Ali Gil.

20. The ocular account of the prosecution has been unfolded by Bashir Ahmad (P.W.1) and Muhammad Anwar (P.W.2). Bashir Ahmad is the father of the deceased. He has narrated that on 5-6-1997 at about 8-45 p.m. he along with his deceased son Mubashar Ahmad and another son Shahid Ahmad were standing in front of their shops and talking. There was electric bulbs light there at that time. The appellant came there in the aforementioned car and he with pistol had fired at the deceased, which hit him near the neck, who died at the spot instantaneously.

21. The occurrence as per his showing had taken place in front of his shops at Sathra Road, Pasrur. His house is also there with these shops. He as per his showing was standing there with his sons at night time and talking with them. He being the resident of that very place could be present at the place of occurrence. His presence there at that time could not be doubted due to that reason. His presence there at the relevant time, therefore, seemed to be probable.

22. He admittedly had no animus or ill-will at all against the appellant prior to the occurrence. It, therefore, could legitimately be said that he was not at all inimically disposed towards him. He, thus in these circumstances, despite his being the father of the deceased seemed an independent witness. He, thus, was certainly a reliable witness in this case. The learned trial Court, therefore, has not erred in placing reliance upon him. The contention of the appellant's side that his presence at the spot at the relevant time was not probable or that he was not a reliable witness, thus in devoid of force. The same, therefore, is repelled.

23. As regards P.W. Muhammad Anwar, he as per his showing is the resident of Chahr Bajwa. He in the cross-examination has stated that his said village is at a distance of 25 miles from the place of occurrence through the road. He has admitted in the cross-examination that neither he nor any of his family members own property at Pasrur. The venue of occurrence is Muslim Colony, Sathra Road, Pasrur. It, thus appears that he did not belong to Pasrur. Bashir Ahmad P.W. though has stated that he had tractor trolleys and estate business there in the said colony but he himself has disowned it to be so. So, his presence at the spot at the relevant time seemed a doubtful matter and even if it may be believed that he had seen the occurrence, still it was per chance. The evidence of a chance witness can be believed, if there may be satisfactory explanation of his presence at place of occurrence at given time. He but did not give explanation of his presence at the spot at the relevant time. So, to us in such circumstances, his testimony being chance witness could not be safely relief upon. The learned trial Court, therefore, has erred in relying upon him. The contention of the appellant's side in this regard, therefore, is found to be with force. His testimony, therefore, is excluded from consideration.

24. It may be mentioned here that evidence of even one witness, if may be found confidence inspiring and inherently plausible, the same can be believed and sufficient to base conviction of an accused, particularly when it may be corroborated by some other independent evidence.

25. Though Bashir Ahmad P.W. now remains the sole witness of the prosecution for reliance in this case but his evidence stands supported by the other circumstances/pieces of the prosecution evidence on the record.

26. The medical evidence has supported his testimony completely. He has stated that the appellant with pistol had fired shot at his deceased son Mubashar Ahmad, which hit him on the neck and he died due to the same instantaneously. Dr. Syed Rashid Hussain (P.W.3) has conducted autopsy on the dead body of the deceased on the next day of occurrence i.e. 6-6-1997. He found the following injuries on the same: "An oval wound on the right side of base of neck (upper part of chest), ragged margins with bluish coloured around 1 c.m. x 1/10 c.m. in size. This was entry wound." "An elliptical wound on the back of chest on the left side below the scapular inferior angle, 1-1/2 c.m. x 1/2 c.m. in size. This was exit wound."

27. The Injury No.1 was fire-arm entry fire wound and Injury No.2 was it's exist. Injury No.1 according to him was sufficient to cause death in the ordinary course of nature. The time between the injury and the death of the deceased has been given by him to be within 30 minutes and between the death and post-mortem examination as 12 to 16 hours.

28. The entry wound was on the right side of the base of the neck of the deceased. It tallied with his account of the infliction of the fire-arm injury to the deceased by the appellant. The time given by him of the occurring of the death of deceased after the receipt of fire-arm injury tallies with the one given by the doctor in his evidence and also between death and the post-mortem examination. So, the medical evidence is in complete harmony to his testimony. It is, thus a strong piece of support to the account of the occurrence rendered by him.

29. The appellant side has not at all been able to show anything to us from the evidence of Bashir Ahmad P.W. and the doctor to say that there is any conflict between the two. The learned trial Court, therefore, has rightly received the same to be in support to the ocular version of the prosecution.

30. The recovery of crime weapon pistol P-4 in this case is absolutely inconsequential as it has been found from the record that no crime empty was sent to the Expert for matching with the weapon, so, the prosecution could not use the evidence of recovery of this weapon to corroborate it's ocular testimony. The learned trial Court has also not used this piece of evidence to be of any corroborative value to the ocular testimony. Hence, any further discussion on this aspect of the prosecution case is hardly needed.

31. As regards the motive furnished by Bashir Ahmad P.W., we do not find the same to be satisfactory and believable safely for the reason that Bashir Ahmad admittedly was not the witness of the incident of rushing of the car by the appellant speedily in front of his house and forbidding of the deceased to him from the same and on the same the extending of threats of dire consequences by the appellant to him. So, he in this regard could not be safely relied upon.

32. It may be mentioned here that he has stated in the cross-examination that Anwar P.W, some children and women had seen that incident but neither any of the children nor women had been produced in the evidence to support him on that count. It is, while interesting to note here that Anwar P.W. has not narrated that motive story. So, we in view of the requirement of rule of prudence are not prepared to believe such motive story of the prosecution. We, have no hesitation in observing that the prosecution in fact by it's evidence on the record had not been able to prove the motive part of it's story convincingly or satisfactorily. We here may also say that the learned trial Court has not validly used the motive part of the prosecution story in corroboration to the ocular testimony. The contention of the appellant's side, therefore, in this regard too is with force. We, therefore, discard the motive evidence of the prosecution out of consideration.

33. The appellant admittedly after the incident had absconded. The occurrence hand taken place on 5-6-1997. He as per his own showing in his examination under section 342, Cr.P.C. had surrendered himself before the police about a month prior to 28-2-1999. He, thus had remained absconder for a period of about one year and seven months after the incident. This was considerably long period. He has shown that he out of fear of rancour of the then local M.P.A. Munawar Ali Gil had absconded. This version of him had not at all been spelt out from anything in the evidence on the record. He did not produce any evidence on the record to show that he had any enmity with the said M.P.A. So, this explanation of his abscondence has not at all been found to be satisfactory and rather was made up one to save his skin. His abscondence seems to be an evidence of his guilty intent in the matter. Had he been innocent, be would have not escaped. The factum of his abscondence is a heavy circumstance in corroboration to the veracity of the prosecution allegation against him of having committed the Qatl-e-Amd of the deceased as appeared in the ocular testimony. The contention, therefore, raised by him in this behalf is without force. The learned trial Court, therefore, has rightly used the factum of his abscondence in corroboration to the ocular testimony connecting him with the charge of the Qatl-e-Amd of the deceased.

34. As regards the contention of the appellant's side that there had been over-writing in certain exhibited documents like Tafseel Kaghzat under the report under section 173, Cr.P.C. and the date underneath the signatures of Muhammad Anwar S.-I./S.H.O. in memo. Exh. PC and the post-mortem report and it's adverse effect upon the prosecution case, the same is without any force. No doubt there has been found some overwriting on these documents but these could be as a result of the intervening night during which the date had changed when the investigation at the spot was in progress. Even otherwise, nothing in this case turns on such over writings, as they do not materially affect the broader aspects of this case. So, these over-writings could be of no consequence to view the prosecution version with doubt.

35. As regards the contention that the original first inspection note contained that there had been found led bullet near the dead boy of the deceased, the same too is without any force. It is because of the fact that is was not put to the I.O. Muhammad Anwar S.-I., (P.W.12) by the defence that any led bullet was found near the dead body. He rather, in the cross-examination has made it absolutely clear that be did not secure any article from near the dead body. It may also be mentioned here that the appellant's side did not take any objection regarding the non-supply of correct copy of the first inspection note to him at an appropriate stage during the trial. It rather, perhaps struck to his mind to raise such plea at a very belated stage of the trial while he firstly had opted not to offer any defence. The pleas in this regard, thus seemed to be an afterthought. So, the same has been found to be of no effect qua the acceptability of the prosecution version against him. The contention, therefore, in this regard is repelled.

36. As regards the contention of the appellant's side that the footwear of the deceased were not handed over by the doctor to the concerned constable and the same shows that he was bare-footed when he was fired at is without any substance. No doubt the doctor did not hand over the footwear of the deceased to the concerned constable but this has normally been noticed that doctors at the time of autopsy on the dead body concentrate on the wearing apparels and particularly when these may be blood-stained. So, non-handing over of the footwear of the deceased was not such thing to believe that the deceased was fired at when he was running bare-footed. The contention in this regard, therefore, is repelled.

37. Here we would like to discuss the plea of the appellant that deceased in fact was fired at by some of his rival student group. The same too is without any force. We find that Bashir Ahmad, the father of the deceased is a retired police officer. The appellant was his Mohallah Dar. He did not have any enmity or ill-will against him prior to the occurrence. He then why will involve him falsely is absolutely no appealing to reason.

38. Even otherwise, it is a case of single accused. It is almost settled proposition though not hard and fast rule of universal application that substitution is a rare phenomenon. The father of the deceased why had let off the real culprit and involved the appellant in place of him is absolutely not understandable at least from the evidence on the record.

39. It may also be mentioned here in this context that no evidence at all has been brought on the record by the appellant to show that the deceased had any enmity with any rival student group. This has also not been spelt out from anything on the record. Therefore, this defence plea is absolutely hollow and the same was rightly rejected by the learned trial Court.

40. Another factor, which can sufficiently be used to corroborate Bashir Ahmad P.W.1 and the same is promptitude in the F.I.R. The incident had taken place at about 8-45 p.m. on 5-6-1997. The report regarding the same was made to the police at about 9-35 p.m. It, thus was within 50 minutes of the same, while the police station is at a distance of about three kilometres away the place of occurrence. In such short span of time, there could hardly be, any chance of deliberation or consultation on the part of the witness before lodging the F.I.R. The promptly lodged F.I.R., thus could be used to corroborate it's maker Bashir Ahmad.

41. It may also be mentioned here that there has been found nothing from the record that this F.I.R. was lodged after the post-mortem examination of the dead body of the deceased. It rather, as has been said above appeared to have been lodged with utmost dispatch and promptness. The contention of the appellant's side, therefore, in this regard too is without force and the same is repelled.

42. As a result of the above discussion, we have been construed to hold that the prosecution as per it's ocular testimony supported by the medical evidence and corroborated by the abscondence of the appellant has successfully proved on the record beyond any reasonable shadow of doubt that he on the above said date, time and place and in the manner has committed the Qatl-e-Amd of the deceased Mubashar Ahmad by causing his death. The learned trial Court, therefore, was right in convicting him under section 302(b), P.P.C.

43. As regards his alternate plea in respect of the award of sentence to him, we find that mere absence of motive or its insufficiency or weakness could not be ground for mitigation in his favour. In this regard reference can be made to the cases of Saeed and 2 others v. The State (2003 SCMR 747) and Muhammad Akbar and another v. The State (PLD 2004 Supreme Court 44). We, therefore, maintain his sentence of death.

44. We, however, have found that the learned trial Court has ordered him to suffer six months rigorous imprisonment in case of default of payment of compensation. The rigorous imprisonment in case of default of payment of compensation is not permissible in law. So, the same shall be treated as six months simple imprisonment instead of six months rigorous imprisonment.

45. Consequently, his appeal has been found to be without any force. We, therefore, dismiss the same.

46. The murder reference is answered in the affirmative. The death sentence is confirmed. N.H.Q./S-77/L Appeal dismissed.