2020 PLP 480 (MLD)

MALIK HAQ NAWAZ, J.

Since Cr. Appeals bearing No. 1 of 2017, (titled Ghulam Hussain etc. v. The State) Cr. Appeal No .2/2017 (titled Ghulam Hussain v. The State) and Cr. Revision No.22/2017, (titled Zahid Hussain etc. v. Ghulam Hussain and 02 others) are arising out of one and the same incident, therefore, these are being disposed of through this single judgment.

2. The brief facts of the case as reflected in the FIR and narrated in opening part of the judgment dated 22-12-2016 are reproduced as under. "The brief facts giving rise to the instant case are on 04-04-2015 at about 900 hours the accused namely Ghulam Hussain son of Shakoor Khan and Bilal Ahmed son of Ghulam Hussain R/o Choungrah Tehsil and District Astore started pelting on complainant, deceased namely Imtiaz Ali and Iqbal Husssain from the upper side, while they were busy in digging a water channel downward and when to inquire the matter the deceased went upward and reached near the accused, they opened fire on the deceased with their common intention to commit his Qatl-i-amd/murder, resultantly the deceased sustained injuries and he was shifted to DHQ Hospital Astore and after giving first aid he was referred to DHQ Hospital Gilgit, where the deceased succumbed to his injuries on 08-04-2015. After the occurrence the accused decamped from the scene of occurrence".

3. The FIR was initially registered under section 324/34/337-A/ 337-F and on demise of Imtiaz Ali, the sections of law were converted into 302/34, P.P.C. The charge was framed on 11-09-2015 to which the accused pleaded not guilty and claimed trial. In order to prove the case prosecution examined 14 (fourteen) PWs and closed its case. On 15.11.2016 the statements of accused under section 342, Cr.P.C. were recorded. However, the accused neither examined themselves on oath under section 340(2), Cr.P.C., nor produced any DW in their defence.

4. After hearing the parties the learned trial Court handed down the verdict of conviction against accused and awarded life imprisonment to both the appellants and also awarded fine of Rs. 50,0000/-(Five lac) each under section 544-A, Cr.P.C. to be paid to the legal heirs of the deceased. In case of default they were to undergo 01 year R.I. Benefits of section 382-B, Cr.P.C. were extended to both the appellants/convicts.

5. Aggrieved from the judgment/order of the learned trial Court, the appellant/convict filed the above mentioned appeals, while complainant Zahid Hussain being also aggrieved from the lesser sentence awarded by the trial Court has filed a Revision Petition for enhancement of sentence of both the appellants from life imprisonment to death.

6. The learned counsel for the appellants submitted that whole the case is based on false accusations and result of deliberations/ consultations. The learned counsel vehemently contended that almost all the eye-witnesses were planted later on, as they failed to narrate the injuries on the body of deceased. The deceased has not made any statement before police under section 161, Cr.P.C., which has wrongly been treated as a dying declaration. Almost all the PWs made deliberate and dishonest improvements, which have not been considered by the learned trial Court causing grave mis-carriage of justice. The statement of PW-11 Tahir has created a big dent in the story of the prosecution who denied the visit of SHO to the hospital and condition of deceased to make a statement. The learned counsel further pointed out that statements of a numbers of PWs are not recorded by the I.O. under section 161, Cr.P.C. and father of deceased when examined in trial Court, made intentional improvements to bring his case in line with the prosecution story. The arrest of the appellant remained a mystery throughout and till completion of case prosecution was not sure as and when the appellants were arrested. The recoveries have been effected in clear violation of section 103, Cr.P.C., which is not permissible under law. No justifiable reasons have been advanced as to why no independent private witnesses of the locality were associated with the proceedings of recoveries. The learned counsel submitted that the date on the postmortem report is mentioned as 08-04-2015 whereas the occurrence took place on 04-04-2015, which has dented the whole of the prosecution story. The learned counsel further submitted that as per contents of postmortem report the deceased (then injured) was shifted to DHQ Hospital Gilgit, who remained under treatment in DHQ Hospital Gilgit and died due to non availability of ventilator. The case per learned counsel may be one of under section 337, P.P.C./324, P.P.C. and not of murder as claimed by the prosecution as there is no worth reliance evidence to connect the appellants with the alleged crime and they deserve clean acquittal or in alternate a lesser sentence.

7. On the other hand the learned Dy. Advocate General assisted by learned counsel for complainant vehemently contended that the arguments advanced by the learned defence counsel are not based on any logic and legal premises, rather the arguments advanced before this Court are self destructive and does not appeal to a prudent mind. The learned counsel for the complainant submitted that it was a daylight occurrence, which was witnessed by eye-witnesses, who were able to prove their presence at the place of occurrence and their statements could not be shattered despite very lengthy cross-examination. The eye-witnesses not only identified the appellants while committing the offence but have also mentioned the weapons of offence, which were being carried by the accused/appellants at the time of commission of offence. The statement of deceased (then injured) was recorded under section 161, Cr.P.C., by I.O. of the case Muhammad Ilyas SIP, who recorded the same in DHQ Hospital Astore, where deceased was brought in injured condition and was given first aid. Per learned Dy. Advocate General and learned Counsel for the complainant, the statements of eye-witnesses are quite in line with the statement of deceased. The deceased was in full sense, when he was brought to DHQ Hospital Astore and any statement made by a person, who later on dies could validly be treated as Dying Declaration and is admissible under Art. 46 of Qanun-e-Shahadat. The appellants were seen by the PW-3 Murad Khan before the incident and after the incident they were seen with weapon of offence by P W-6 Juma Mir. Recoveries have been effected from both the accused, which were produced in the Court during trial and were accordingly exhibited. The weapons of offence were sent to Forensic Expert for expert opinion, which opinion is positive. The death of deceased by fire arm injuries is not disputed and has been confirmed from the post mortem of the deceased. The case was of on the capital punishment, which has not been awarded by the trial Court without any cogent and valid reasons. The learned counsel for the complainant lastly submitted that the conduct of the accused is evident from the recoveries of crime empties from the place of occurrence. The intention was only to eliminate deceased and no mitigation was available to award lesser punishment. Keeping in view the gravity of offence and the dent free evidence, the convict/appellants be awarded death sentence by accepting the revision petition filed by the complainant for enhancement of sentence of the appellants.

8. The convict/appellants are named in the FIR with specific allegation of opening fire shots on the deceased, who was critically injured and was shifted to Civil Hospital Astore and then to DHQ Hospital Gilgit. The I.O. of the case, who visited the place of occurrence immediately after the occurrence secured 12 empties of 7.62 MM, 01 empty of .9 MM pistol, 1 empty of .30 bore pistol, which on examination were found to have been fired from the weapon of offence recovered from the possession of the appellants on their pointation. The report of Forensic Science Expert has been tendered in evidence and exhibited as Ex P/B. The statements of eye-witnesses namely Iqbal Hussain and Zahid Hussain examined in the trial Court as PW 02 and PW 01 has fully implicated the appellants for commission of the offence. The eye-witnesses went to the process of very lengthy cross-examination spreading over many pages, but nothing could be extracted in favour of the defence. The learned defence counsel laid much stress on the statement of PW-11 FC Tahir Hussain who during cross-examination stated that I.O. of case has not visited the Civil Hospital Astore, where the injured was given first aid. As per prosecution the injured was shifted to DHQ Hospital Gilgit and was found stable as evident from the statement of (PW 09) Dr. laved Ahmed but no serious efforts were made by the I.O. to get recorded the statement of the injured after obtaining a fitness certificate from the Doctor. We are of the view that a statement made by an injured under expectation of death, who dies later on can be treated as a dying declaration. However, we critically and minutely examined the statements of eye-witnesses and found them confidence inspiring and without any exaggeration. The presence of eye-witnesses was not challenged during their deposition in the trial Court. Now it is recognized principle of criminal dispensation of justice that when occular evidence has firmly stood the test of cross-examination and was not shattered during cross-examination, the conviction could be passed, even without looking for any corroboratory evidence, when the occular evidence fails and is not relied upon the conviction cannot be based on any corroboratory/confirmatory evidence however it may be strong. The date on the postmortem report was due to an in-adventure and typographical mistake, which cannot be said to have any fatal impact on the case of the prosecution, which is even otherwise proved. The weapon of offence and crime empties were sent to the Forensic Expert, which were found wedded with each other and the report was properly tendered in evidence and got exhibited in the trial Court.

9. The learned counsel for the appellants invited our attention to the statements of police officials, who in one or the other way extended some gratious concession in favour of defence during cross-examination. These concessions to the defence are extended by some officials as a result of their pre-design meeting and already settled understanding which could not be considered fatal in the particular circumstances of the case in hand. The wisdom is drawn from PLD 1976 SC

452. The relevant citation is re-produced as under:- (b) Penal Code (XLV of 1860)

S. 302

[Murder case]

Police witness

Damaging concessions

Venue of crime not challenged by making any suggestion in cross-examination to eye-witness or Investigation Officer

Nothing showing constable witness having been taken to spot by his officers for detection or collection of blood-stained earth from spot of occurrence yet witness denying existence of blood-stained at place of occurrence

Held: Gratuitous concession thus made by witness, a deliberate lie obligingly told at instance of defence

Such type of modus operandi by unscrupulous and successfully tackled Patwris and foot constables quite usual, and quite damaging concessions often elicited by defence from formal witnesses according to previous understand-ing

Cases of deliberate perjury resulting in perversion of justice of justice, if not properly dealt with by departmental authorities, infection bound to spread rendering difficult task of administration of justice further complicated.

[witness].

10. In view of above detail discussion we are of the view that the prosecution established the case against both the accused beyond any shadow of doubt. The conviction/sentences awarded to the convict/ appellants are maintained in toto.

11. The criminal revision No. 22/2016 filed by Zahid Hussain, for enhancement of sentence of appellants is dismissed, as we are of the view that the convict/appellants were convicted and awarded the alternate sentence of life imprisonment, which was proper in the given circumstances of the case.

12. Cr. Appeals bearing No. 01/2017, 02/2017 and Cr. Revision No. 22/2017 are dismissed in the light of the reasons stated supra. SA/43/GB Appeals dismissed.