PLJ 2022 Cr.C. (Note) 49
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Medical evidence--Held: It is well settled principle of medical jurisprudence that dimension of an injury depends upon ii underneath bone or muscle of body and it can even differ from dimension of other injury caused by same weapon--After acquittal of co-accused of appellants conviction of appellants on basis of same set of evidence is not sustainable, is not tenable for reason that case of acquitted co-accused is quite distinguishable than case of appellants as no injury to deceased has been attributed to him in evidence of P.Ws--Further held: It is by now well settled that Court has to sift grain from chaff--Even if recovery of weapons of offence is excluded from consideration, there remains sufficient evidence against appellants in shape of unshaken, trustworthy and reliable ocular account fully corroborated by medical evidence to maintain conviction of appellants u/S. 302(b), PPC--Appeal dismissed. [Para 13, 14 & 15] A, B, C & D
2010 SCMR 650, PLJ 1996 SC 1100 and PLJ 2011 SC 327.
Mr. Muhammad Mahmood Chaudhary Advocate for Appellants.
Ch. Muhammad Mustafa, Deputy Prosecutor General for State.
Mr. Tayyab Shakoor Rana Advocate for Complainant.
Date of hearing: 23.12.2016.
PLJ 2022 Cr.C. (Note) 49
Present: Muhammad Anwaarul Haq, J.
JAHANGIR alias JHANGU and another--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 1358 & Crl. Rev. No. 785 of 2007, decided on 23.12.2016.
Judgment
Appellants Jahangir alias Jhangu and Muzaffar alias Kakku have assailed the judgment dated 15.09.2007 passed by the learned Additional Sessions Judge, Gujranwala in a case FIR No. 433 dated 27.09.2005 registered under Sections 302, 109 & 148/149, PPC at Police Station Saddar, Gujranwala through Criminal Appeal No. 1358 of 2007 whereby they have been convicted under Section 302(b), PPC and sentenced to life imprisonment each with compensation of Rs. 1,00,000/- each as required under Section 544-A, Cr.P.C. to be paid to the legal heirs of deceased, in default thereof, to further undergo six months S.I. each. The benefit of Section 382-B, Cr.P.C. was extended to the appellants. Complainant has filed Criminal Revision No. 785 of 2007 for enhancement of sentences of the appellants. Both these matters, being interconnected, shall be disposed of through this single judgment. It is, however, pertinent to mention here that this criminal appeal was initially filed by three appellants Jehangir alias Jhangu, Muzaffar alias Kakku and Shahid alias Shahdu, however, during pendency of the same appellant Shahid alias Shahdu passed away in jail and this criminal appeal to his extent stood abated on 28.04.2015.
2. Brief facts of the case, unfolded in the application of the complainant Ex.PH, are that on 27.09.2005 at 5.30 P.M. he along with his son Zafar Iqbal and Manzoor Ahmad was going towards his home after bringing milk from his Dera and when they reached near Petrol Agency, they saw that Shafaqat Ali (son of the complainant) was coming on motorcycle from Shafi Chowk. Suddenly, Jehangir alias Jhangu, Shahid Akram alias Shahdu, Muhammad Arshad and Muzaffar alias Kakku along with two unknown persons armed with .30-bore pistols came infront of son of the complainant Shafaqat Ali and started firing upon him who received injuries on different parts of his body and fell down at some distance. The accused fled away while raising Lalkaras and making aerial firing. The complainant and his companions were shifting his injured son to the hospital but on the way he succumbed to the injuries.
On the same day through supplementary statement Ex.PH/2, complainant Ghulam Rasool assigned specific role to the accused by alleging that first shot was fired by Jehangir alias Jhangu that landed on the abdomen of Shafaqat Ali deceased and the second fire made by Muzaffar alias Kakku landed on the back of Shafaqat Ali.
3. After completion of investigation, Challan was submitted before the Court and accused were formally charge sheeted to which they pleaded not guilty and claimed trial.
4. To substantiate the charge, prosecution produced as many as twelve witnesses. Dr. Muhammad Farooq (PW-5) furnished the medical evidence whereas Ghulam Rasool (PW-9) and Zafar Iqbal
(PW-10) provided the ocular account of the occurrence whereas Shabbir Ahmad, Inspector (PW-11) conducted investigation in this case. The remaining evidence is of formal nature.
5. PW-5 Dr. Muhammad Farooq had conducted post-mortem of the deceased Shafaqat Ali on 28.09.2005 at 2.00 a.m. and found the following injuries on his person:--
1. A fire-arm lacerated wound of entry 1 x 1 cm x going deep with inverted margins on right side of abdomen on front 05 cm from midline and 6 cm below level of umbilicus;
2. A fire-arm lacerated wound of exit 1- ½ x 1-½ cm with everted margins on upper part of left buttock 6 cm below iliac crest and 8 cm from posterior mid line;
3. An abrasion 2 x 1 cm on back of right buttock middle part;
4. A fire-arm lacerated wound of entry 1 x 1 cm x going deep with inverted margins on the back of right chest upper part 4 cm from posterior midline and 3 cm from scapula.
As per PW-5, a metallic foreign body was recovered embedded in muscles at the level of 2nd thoracic vertebrae ribs from the wound of Injury No. 4. All the injuries were ante-mortem and Doctor PW-5 was of the opinion that death in this case had occurred due to haemorrhage and irreversible haemorrhagic shock. Probable duration between injuries and death was about half an hour and between death and
post-mortem about six to nine hours.
6. Learned ADA and DDPP, vide their statements dated 01.03.2006 and 20.08.2007 respectively gave up PWs Shahbaz and Ghulam Ghaus being, unnecessary and after tendering in evidence the reports of Chemical Examiner (Ex.PR), Serologist (Ex.PS) and that of Forensic Science Laboratory (Ex.PT) closed the prosecution evidence.
7. The appellants Jehangir alias Jhangu and Muzaffar alias Kakku in their statements under Section 342, Cr.P.C. totally denied the allegation levelled against them and while answering the question “why this case against you and why the PWs have deposed against you” stated that they had been implicated in the case being son and maternal nephew of co-accused Muhammad Nawaz respectively who had ferocious enmity with the complainant party. They further stated that nothing incriminating material was recovered from them. They neither opted to appear as their own witnesses under Section 340(2), Cr.P.C. nor to produce any evidence in their defence.
After conclusion of trial the appellants and their co-accused Shahid alias Shahdu (since died) were convicted and sentenced as mentioned above whereas their co-accused Muhammad Nawaz and Muhammad Arshad were acquitted of the charge.
8. Learned counsel for the appellants contends that no specific role was attributed to any of the accused in the application of the complainant Ex.PH as well as in the FIR Ex.PH/1 and only general role of firing was assigned to all of them, however, through supplementary statement Ex.PH/2 complainant after due deliberation and consultation has attributed specific roles to the appellants; that in the supplementary statement complainant also introduced sixth accused namely Umer as one of two unknown accused mentioned in the FIR, however, he did not name the second unknown co-accused and stated that he was a passerby; that there is nine hours delay in post-mortem of the deceased that is suggestive of the fact that both the alleged eye-witnesses PW-9 & PW-10 were not present at the place of occurrence at the relevant time; that both the witnesses PW-9 and PW-10 who furnished the evidence of ocular account are father and real brother of the deceased respectively, hence, are interested witnesses; that both PW-9 and PW-10 are also chance witnesses and remained fail to establish their presence at the place of occurrence at the relevant time; that the place of occurrence is a busy populated area, however, no independent witness has been produced to prove the charge against the appellants; that PW-9 in his cross-examination at Page No. 7 of his evidence has admitted grudge against the accused on account of incident narrated as motive; that PW-9 has also admitted previous criminal litigation between both the families i.e. of complainant and that of accused, therefore, he as well as PW-10 were inimical towards the accused; that both PW-9 and PW-10 were not present at the place of occurrence at the relevant time, which fact is also established through post-mortem report of the deceased according to that dead body was brought by the police along with Shahbaz and Mudassar and not by the alleged eye-witnesses. Further contends that medical evidence does not corroborate the ocular account, as dimensions of Injuries No. 1 & 4 attributed to the appellants Jehangir alias Jhangu and Muzaffar alias Kakku respectively are the same whereas dimension of Injury No. 2 is different, therefore, possibility cannot be ruled out that the injuries with same dimensions have been caused by one accused and where two interpretations of a particular fact are possible, the one favouring the accused is to be preferred; that PW-5 Medical Officer has declared Injury No. 1, attributed to the appellant Jehangir alias Jhangu, as cause of death of the deceased and motive is also attributed to him, therefore, the other appellant Muzaffar alias Kakku has falsely been involved in this case. Further adds that recoveries of Pistol .30-bore P-5 from the appellant Jehangir alias Jhangu and Pistol .30-bore P-7 from appellant Muzaffar alias Kakku are inconsequential, as these were allegedly effected on 16.10.2005 whereas parcel of three empties taken into possession from the spot on 27.09.2005 was sent to the Forensic Science Laboratory on 17.10.2005 after the recovery of pistols from the appellants; that the learned trial Court by disbelieving the same set of evidence produced by the prosecution has already acquitted co-accused of the appellant namely Muhammad Arshad against whom there is general allegation of making firing at the deceased in the application of the complainant Ex.PH and FIR Ex.PH/1, therefore, the same cannot be relied upon to convict the appellants. Lastly contends that prosecution remained fail to connect the appellants with the commission of murder of the deceased, hence, they are entitled for acquittal.
9. On the other hand learned Deputy Prosecutor General assisted by the learned counsel for the complainant contends that both the appellants are nominated in the FIR with the general role of firing at the deceased, however, in the supplementary statement of the complainant got recorded on the same day they have been assigned specific roles of firing one shot each at the deceased; that the medical evidence is in line with the ocular account furnished by Ghulam Rasool PW-9 (father of the deceased) and Zafar lqbal PW-10 (real brother of the deceased) who cannot be expected to substitute the real culprits with the innocent persons; that both PW-9 & PW-10 remained consistent on all material aspects of the case and despite subjected to lengthy cross-examination nothing favourable to the defence could be extracted; that even if recovery remained unproved, the prosecution succeeded in proving its case against the appellants through ocular account fully supported by the medical evidence and the motive, hence, criminal appeal filed by the appellants is liable to be dismissed.
10. Learned counsel for the complainant/petitioner while arguing Criminal Revision No. 785 of 2007 for enhancement of the sentences of appellants contends that case against the appellants stood proved beyond any shadow of doubt and no mitigating circumstance warranting lesser sentence was available to them, therefore, their sentences are required to be enhanced from life imprisonment to death.
11. I have heard the learned counsel for the parties at length and have also scanned the record with their able assistance.
12. The occurrence in this case took place on 27.09.2005 at 5.30 p.m. and application Ex.PH at 7.00 p.m. was moved by the complainant Ghulam Rasool PW-9 just within one and a half hour of the alleged occurrence, hence, the matter was promptly reported to the police. Although in the application of the complainant as well as in the FIR, general role of firing at the deceased was attributed to all the accused six in number including the appellants Jehangir alias Jhangu and Muzaffar alias Kakku yet on the same day through supplementary statement Ex.PH/2 complainant did assign specific roles to both the appellants stating that one shot each fired by the appellants Jehangir alias Jhangu and Muzaffar alias Kakku at the deceased landed on his abdomen and back respectively. Ghulam Rasool PW-9 and Zafar Iqbal PW-10 who while furnishing the ocular account in this case categorically deposed that first shot fired by the appellant Jehangir alias Jhangu had hit deceased Shafaqat at his belly and then shot fired by Muzaffar alias Kakku caused injury on the back of the deceased. Both these witnesses remained consistent on all material aspects of the case and defence remained fail to shatter their evidence even after lengthy cross-examination. It has been contended by the learned counsel for the appellants that PW-9 and PW-10 are closely related to the deceased, hence, their evidence is not reliable. However, mere relationship of witnesses with the deceased is not a ground by itself to discredit their evidence, which is otherwise confidence-inspiring. In this respect, I respectfully place reliance on the judgment reported as Haji versus The State (2010 SCMR 650). It has also been contended by the learned counsel for the appellants that delay of about nine hours in post-mortem of the deceased reflects that both PW-9 and PW-10 were not present at the place of occurrence at the relevant time. However, application Ex.PH was promptly filed just within one and half hour of the alleged occurrence wherein both the appellants were nominated whereas probable duration between death and post-mortem has been observed by the doctor PW-5 as six to nine hours that fully corroborates the prosecution version.
13. So far as medical evidene is concerned, both the injuries attributed to the appellants Jehangir alias Jhangu and Muzaffar alias Kakku at the abdomen and back of deceased respectively are available in the post-mortem report of the deceased. The contention of the learned counsel for the appellants that dimensions of Injuries No. 1 & 4 on the belly and back of deceased respectively suggest that these have been caused by the single accused, cannot be appreciated, as both the eye-witnesses PW-9 and PW-10 have specifically attributed one injury each with pistol .30-bore to both the appellants and no contradiction at all in their statements has been pointed out. Even otherwise, it is well settled principle of medical jurisprudence that dimension of an injury depends upon the underneath bone or muscle of the body and it can even differ from dimension of other injury caused by the same weapon. I respectfully rely upon the case of Muhammad Iqbal v. State etc. (PLJ 1996 SC 1100) wherein the Hon’ble Supreme Court of Pakistan has observed as under:
“10. As regards difference in dimension of fire-arm injuries on the dead bodies, suffice it to say that the dimension of the fire-arm wounds depends upon nature of surface where the injuries landed. In the instant case the pellets hit the abdominal area, upper part of thigh, upper part of the chest of two deceased, so the difference in dimension of the wounds is quite understandable.”
In view of all above, I do not find any force in the argument of the learned counsel and I agree with the finding of the learned trial Court that medical evidence fully corroborates the ocular account in this case.
14. Argument of learned counsel that after acquittal of
co-accused of the appellants namely Muhammad Arshad, conviction of appellants on the basis of same set of evidence is not sustainable, is not tenable for the reason that case of acquitted co-accused is quite distinguishable than the case of the appellants as no injury to the deceased has been attributed to him in the evidence of P.W-9 and
PW-10; he was declared innocent during the investigation and his name was also placed in Column No. 2 of the report prepared under Section 173, Cr.P.C. It is by now well settled that Court has to sift grain from the chaff and in this regard I respectfully refer an observation of the Honourable Supreme Court in the case of Khadim Hussain vs. State (PLJ 2011 SC 327) in the following words:--
“In fact a futile exercise appears to have been made to press into service the doctrine of “falsus in uno falsus in omnibus (false in one thing, false in all), which is admittedly not applicable in prevalent system of criminal administration of justice and more so there is no rule having universally applicable that where some accused were not found guilty the other accused would ipso facto stand acquitted because the Court has to sift the grain from chaff.” (Samano v. State 1973 SCMR 162). There is no cavil to the proposition that ‘the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal applications. In the last analysis, as stated in some of the eminent judicial decisions, the grain has to be sifted from the chaff in each case, in the light of its own peculiar circumstances. (Riaz Hussain v. The State 2001 SCMR 177)”.
15. As regards recovery of weapons of offence from the appellants and positive report of Forensic Science Laboratory, that has lost its relevance for the simple reason that .30-bore pistols were recovered from the appellants on 16.10.2005 whereas according to the statement of PW-1 Riaz-ul-Hassan 878/C, parcel containing empties of .30-bore pistol was handed over to him by the Moharrar for its onward transmission to the Forensic Science Laboratory on 17.10.2005 that is after the recovery of pistols from the appellants.
In view of all above, even if recovery of weapons of offence is excluded from the consideration, there remains sufficient evidence against the appellants in the shape of unshaken, trustworthy and reliable ocular account fully corroborated by the medical evidence to maintain conviction of the appellants under Section 302(b), PPC.
16. As far as Criminal Revision No. 785 of 2007 for enhancement of sentences of the appellants is concerned, one fire each has been attributed to them, and moreover recovery of pistols, for the reasons mentioned in Para No. 15 of this judgment has already been found inconsequential, therefore, considering these aspects of this case as extenuating circumstances they have rightly been sentenced to life imprisonment by the learned trial Court, hence, this criminal revision has no merits.
17. For what has been discussed above, Criminal Appeal No. 1358 of 2007 filed by the appellants Jehangir alias Jhangu and Muzaffar alias Kakku and Criminal Revision No. 785 of 2007 filed by the complainant for enhancement of sentences of convicts/ appellants stand dismissed.
(A.A.K.) Appeal dismissed
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