PLJ 2022 Cr.C. 239
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34--Specific injury--Medical evidence--Acquittal of co-accused--Appellant fired with his pistol which hit between the neck and chest of deceased--Fire shot by acquitted accused landed on the chest of the deceased below left clavicle--It was prompt FIR--Fire of acquitted accused does not exist in the post mortem report--An exit wound can be calculated for the fire of acquitted accused--Empties were sent to PFSA after the arrest of the appellant--In order to prove his plea, appellant did not enter on his defence while appearing u/S. 340(2) crpc nor filed written statement as required u/S. 265-F, PPC--Any admission or plea raised by accused would have no value and cannot be used against him--It is not the legal burden but the evidential burden that shifts to the accused, if he had any special knowledge of circumstances of the case--When the evidence of the prosecution is concluded, accused shall be asked whether he means to adduce the evidence and if he opts to adduce evidence, then as per above section--Prosecution fully established his case--Life imprisonment upheld--Appeal dismissed. [P. 241,
244, 245, 246, 247, 248, 249, 251 & 252] A, B, C, D, E, F, G, H, I & J
PLD 2020 SC 201; 2021 SCMR 873; 2013 PCrLJ 591;
AIR 1966 SC 97; PLD 1991 SC 787 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 340(2)--Such provision is declared against the Article 13 of the constitution of Islamic republic of Pakistan, 1973 on the principle that no person shall be compelled for self incrimination. [P. 251] I
PLD 1991 SC 787 ref.
Mirza Muhammad Azam, Advocate with Appellants (present on bail).
Malik Muhammad Latif, Additional Prosecutor General for Respondent.
Syed Zeeshan Haider, Advocate for Complainant.
Date of hearing: 8.9.2021.
PLJ 2022 Cr.C. 239
[Lahore High Court, Bahawalpur Bench]
Present: Muhammad Amjad Rafiq, J.
MUHAMMAD AKHTAR, etc.--Appellants
versus
STATE--Respondent
Crl. A. No. 167 & Crl. Rev. No. 113 of 2011, heard on 8.9.2021.
Judgment
Prosecution for the murder of Khadim Hussain was launched against Muhammad Akhtar alias Muhammad Akram, Muhammad Anser along with Shafqat and Saif-ul-Malook, through case FIR No. 45/2010 dated 18.03.2010 registered under Section 302/34, PPC at police station Ghumandpur, District Bahawalnagar. The learned trial Court, vide judgment dated 28.03.2011, acquitted Shafqat and Saif-ul-Malook accused from the charge, whereas, Muhammad Akhtar and Muhammad Anser (hereinafter to be referred as accused/appellants), were convicted and sentenced as under:
Imprisonment for life u/S. 302(b) read with Section 34, PPC with compensation of Rs. 100,000/- each under Section 544-A, Cr.P.C. to be paid to legal heirs of deceased, in case of default to further undergo simple imprisonment for six months each. Benefit of Section 382-B, Cr.P.C. was extended.
Criminal Appeal No. 167/2011 has been brought by accused/appellants to question their above conviction and sentence, whereas Criminal Revision No. 113/2011 has been filed by Allah Yar (complainant) seeking enhancement of sentence qua both the above accused/ appellants. Both these matters are now under consideration before this Court as subject of instant judgment.
2. Allah Yar complainant (PW.6) led the story of prosecution narrated in complaint (Ex.PC), reproduced in formal FIR (Ex.PC/1) that it was the morning of 18th March, 2010 when at 08.30 am, he along with his brother Khadim Hussain (deceased) was irrigating the fields, Muhammad Akhtar alias Muhammad Akram and Anser (accused/appellants) armed with 30-bore pistols and Shafqat carrying a knife came there. Shafqat raised lalkara to teach them a lesson for yesterday’s quarrel, upon which Muhammad Akhtar alias Muhammad Akram fired with his pistol which hit between the neck and chest of Khadim Hussain (deceased). The fire shot by Anser landed on the chest of Khadim Hussain below left clavicle, who fell down; whereupon, Shafqat attempted knife blow which was stopped by complainant by his right hand. Meanwhile, Saifal alias Babli, brother of Muhammad Akhtar alias Muhammad Akram (accused), came on a motorcycle, boarded them all and decamped from the place of crime. The occurrence was witnessed by Mukhtar Ahmad and Nasarullah, who being guests were present there. Khadim Hussain was being shifted to Hospital in a dala (ڈالا), when he succumbed to the injuries.
3. Leaving the dead body of Khadim Hussain in the hospital under the guard of witnesses, complainant moved the complaint at the police station, on the basis of which Muhammad Shabbir Sub-Inspector/Investigating Officer (PW-9) drafted formal FIR and proceeded to the hospital and carried out investigation, the details whereof are available in his statement recorded before the Court, therefore, need not be reproduced here. Suffice to say that after completion of all requisite formalities, report under Section 173, Cr.P.C. was submitted in the Court.
4. The accused persons were charge sheeted, to which they pleaded not guilty and claimed to be tried. During trial the prosecution examined its witnesses in sequence and produce documents as under:
“Complainant Allah Yar (PW-6) and Mukhtar Ahmad (PW-7) deposed about the ocular account; Dr. Husnain, Medical Officer (PW-3) who had conducted post mortem examination of Khadim Hussain deceased and Muhammad Shabbir Sub-Inspector (PW-09) who had conducted investigation in this case. Rest of the witnesses being formal in nature made depositions about their respective functions performed during the course of investigation. After oral evidence the learned Rao Muhammad Riaz Khan, Deputy District Public Prosecutor tendered in documentary evidence the report of Chemical Examiner Ex.PJ and reports of Serologist as Ex.PK and Ex.PL and with that closed the prosecution evidence.”
The accused when examined under Section 342, Cr.P.C. denied the prosecution evidence and produced one Munawar Ali as DW-1 in their defence, however, neither of them appeared as his own witness. In answer to a question “Have you anything else to say”, Muhammad Akhtar alias Muhammad Akram accused/appellant made the following reply:
“I am innocent. In fact due to some understanding Khadim Hussain deceased as well as his brother Allah Yar complainant leveled the allegation against my co - accused Muhammad Anser my brother that he has taken the snaps of Mst. Shamim Bibi wife of Khadim Hussain deceased on his cell phone about 3/4 days prior to this occurrence. I and my brother Anser tried to satisfy them by all possible means that Anser had not taken any such snaps of wife of Khadim Hussain but in spite of that they bore grudge and Khadim Hussain deceased had an altercation and scuffle with me a day before the occurrence and gave him beatings, whereupon Khadim Hussain threatened me of dire consequences. On the day of occurrence there was Qull Khawani of Mst. Mumtaz Begum d/o Falak Sher resident of Bheni Abdur Rehman Kharl andI alongwith Muhammad lqbal, Muhammad Munawar and Sarfran attended the above said persons and when we reached near the house of complainant party at a distance of about one acre, all of a sudden Khadim Hussain deceased and his brother Allah Yar Complainant who were hiding themselves in the wheat crop of Munir Wattoo near their house, came in front of me and launched an attack upon me. Both of them started giving me beating. In support of their other relatives also attracted at the place of occurrence. I apprehending danger to my life at the hands of the complainant party, I took but my licenses pistol which I was having as a precaution because the complainant had already extended threats to me but in spite of that Khadim Hussain deceased caught hold of me and tried to snatch the pistol and during this grappling/scuffle my pistol which was semi-automatic was went off accidentally, as a result of which Khadim Hussain was injured. In fact, it was complainant party who was aggressor. My companion Muhammad Munawar, Sarfraz and lqbal were the actual eye-witnesses of the occurrence. None of the PW namely Mukhtar Ahmad and Nasrullah were present at the time and place of occurrence when Khadim Hussain got injured and fell down on the ground, Allah Yar complainant and other persons who had attracted at the place of occurrence and were related to the complainant party started attending Khadim Hussain and by finding a chance I saved my life by running from the scene of occurrence. On the following day I myself appeared before the I.0. and stated the above said facts before him and also produced my licensed pistol but the I.0. being in league with the complainant party did not record my actual defence version nor he recorded the statements of my defence witnesses namely Muhammad Munawar, Muhammad Sarfraz and lqbal who appeared with me before the I.0. and supported my defence version. Numerous persons of the locality numbering more than 40/50 appeared before the I.0. and stated that in fact it was Complainant party who was aggressor. At the time of occurrence none of my co -accused was with me. They have been involved by widening the net by the complainant party. Previously there was no ill will or any kind of rivalry between the parties except misunderstanding of the taking of snaps of the wife of Khadim Hussain and I had no intention whatsoever or motive to commit the murder of Khadim Hussain deceased.”
On similar question to other accused persons, they all came out with the same reply as made by Muhammad Akhtar alias Muhammad Akram. On conclusion of the trial above conviction and sentence was recorded against Muhammad Akhtar and Muhammad Anser, whereas, remaining two accused were acquitted.
5. Learned counsel for the accused/appellants argued that presence of witnesses at the place of occurrence is doubtful, Shafqat and Saif-ul- Malook accused stood acquitted on the same set of evidence; empties were sent after the arrest of accused, in this way recovery of pistol and matching report of PFSA becomes inconsequential; motive has not been proved; plea of accused Akhtar is more plausible and has weight in contrast to shaky story of prosecution; accused Anser was found innocent during investigation and nothing was recovered from his possession and that it was an accident for which accused/appellants cannot be held responsible as Muhammad Akhtar alias Muhammad Akram also received injuries during the occurrence.
6. On the other hand, Learned Additional Prosecutor General came out with straight forward stance that it is a case of prompt FIR, prompt Post Mortem examination; presence of two injuries in proximity to each other with different description rules out hypothesis of innocence of accused Muhammad Akhtar alias Muhammad Akram who did not act in private defence rather it was an intentional murder because complainant or the deceased were not armed at the time of occurrence.
7. Learned counsel for the complainant has also put vehemence in arguments of learned Additional Prosecutor General by adding that it was day light occurrence, there was no mistaken identity; two fires at the body of deceased with no injuries to others who were beating him speaks in clear terms the criminal liability of Muhammad Akhtar alias Muhammad Akram accused. Further contends that duration of injuries as observed by the doctor on the person of Muhammad Akhar though matches the time of occurrence but defence has lost sight of allegations that there was an altercation one day prior to present occurrence as well; further states that even doctor has did not rule out the possibility of fabrication in injuries. However, learned counsel was at a low tone while defending the conviction and sentence awarded to Ansar accused/appellant.
8. Proponents were heard; record perused.
9. In order to keep the things clear and straight, from the evidence available on the record especially the defence version taken by Muhammad Akhtar alias Muhammad Akram accused/appellant in his statement under Section 342, Cr.P.C., it becomes obviously clear that the occurrence and the participation of said Muhammad Akram alias Muhammad Akhtar in the commission of the crime was not denied, though both the parties have come out with their respective stance with regard to mode & manner and the venue of occurrence. Now, it is for the Court to see as which of the party has come out with truth or at least with an appealable and plausible version.
INJURIES:-
1. A lacerated oval wound about 1 cm in diameter just below the neck in the mid line in the first intercostals space. Burning and tattooing was present. Its margins were inverted and abraded.
2. A lacerated wound with inverted margins about ½ cm in diameter just below the left clavicle.
3. A lacerated wound about 1 cm in diameter with everted margin on the right side of the back just along the medial aspect of scapula.
11. Group of witnesses who led the ocular account consisted of PW-6 & PW-7 whose presence at the place of occurrence was substantiated through their straight forward testimony when PW-6 says in the words as under:
“The residential house of accused persons is at a distance of 10 acres from the place of occurrence towards east and our residence is at a distance of one acre from the place of occurrence toward west, however we both the parties live in the same village Botian Wali”.
A suggestion was put by the defence about residence of Mukhtar PW, to which he responded as under:
“It is correct that Mukhtar Ahmad PW is son of my real maternal uncle and his house is also adjacent to my house”.
Above expression does not leave any room for doubt about their presence at the relevant time at the scene of crime as resident of same locality. During cross-examination, in reply to question put by defence, PW-6 responded as under:
“There was absolutely no dispute between both the parties of any kind prior to this occurrence except the dispute of taking the snaps by Anser accused of Mst. Shamim Bibi”.
This question has left no option except to admission of motive which also finds its place in similar way in the statement of accused/appellant Muhammad Akhtar alias Muhammad Akram recorded u/S. 342, Cr.P.C.
13. Motive has been attributed in this case as taking of snaps of Mst. Shameem Bibi, wife of Khadim Hussain deceased and due to such indecent act, present occurrence took place. No evidence was brought on record with respect to proof of motive in this case except a suggestion during cross-examination. Neither Mst. Shamim appeared during the investigation nor before the Court, even mobile phone through which such snaps were taken has not been taken into possession nor was produced during the trial. However, as a matter-of-fact Muhammad Akhtar alias Muhammad Akram while answering to a question put to him during his statement under Section 342, Cr.P.C. in a manner admitted the differences between the parties and the reason was almost the same which had formed the motive part, as alleged by the prosecution. In this way prosecution case gets support of motive as well.
14. Although the prosecution had specifically named Anser as an accused and a fire shot to the deceased was also attributed to him, but no crime weapon could be recovered from him and further during the course of investigation the Investigating Officer had opined that Anser and Shafqat accused were though present at the place of occurrence but they were empty handed. When this aspect of the matter is gauged by keeping in mind that Muhammad Akhtar alias Muhammad Akram had admitted his participation, the crime weapon recovered on his lead matched with the crime empties collected from the spot and further from the medical evidence, though two fire shots carried somewhat different descriptions with regard to distance, but if the fire may have been shot by one person, by one weapon, at one time and may have been hit to one person, even then the same could differ in terms of distance from which these were caused. Consequently, it can safely be inferred from the above that Anser accused/appellant was falsely implicated in this case; prosecution has failed miserably to establish the guilt against him in this case. As such, this appeal to the extent of Anser succeeds, his conviction and sentence as recorded by the learned trial Court is set-aside and he is acquitted of the charge against him. He is present before the Court on bail; his sureties are discharged from the liability.
17. In this case prosecution has proved unlawful killing of Khadim Hussain at the hands of Muhammad Akhtar alias Muhammad Akram; therefore, presumption that it was intentional killing would run against him until he rebuts it. It is trite that once the prosecution proves a primary fact, the burden to dislodge the presumed fact would be on the accused; it has been explained principally by the theory of an English Jurist as under;
“according to theory of Professor Thayer, a leading exponent, proof of the primary fact creates an evidential burden in the opponent with respect to presumed fact. Therefore, presumed fact will be taken as proved unless the opponent adduces some evidence to rebut the presumption, though he need not go so far as disproving it. If the opponent does this, the presumption disappears and the normal burden of proof applies as if the presumption had never existed. This sudden disappearance has led to this theory being also known as the “bursting bubble” theory. Professor Glanville William s describes presumptions governed by this theory as ‘evidential presumptions’. In that case, accused would acquire at the most evidential burden as to the presumed fact”.
(An extract from a book “Murphy on Evidence”, 6th Edition by Peter Murphy)
18. Leading evidence by the accused to dislodge a proved fact is matter of procedure; mere stating a fact in a statement under Section 342, Cr.P.C. does not fulfill that requirement. Ours’ is the adversarial system which provides equal opportunity to both the parties to prosecute or defend pursuant to fundamental right of fair trial and due process guaranteed through the Constitution of Islamic Republic of Pakistan. Barring some situations, scheme of criminal procedure usually requires “he who alleges or levels the allegation of commission of offence would lead the evidence first”. In a sessions trial, leading of evidence is regulated under Section 265-F of, Cr.P.C., which is reproduced for reference:
“265-F. Evidence for prosecution. (1) If the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution.
Provided that the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
(2) The Court shall ascertain from the public prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it.
(3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing.
(4) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.
5) If the accused puts in any written statement, the Court shall file it with the record.
6) If the accused, or any one of several accused. says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence.
7) If the accused or any one or several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing.”
i. he would put in any written statement, or
ii. adduce evidence.
The use of word “written statement” is meaningful in the sense that evidence of prosecution against the accused has been adduced on oath; therefore, he must defy the allegation in the same way i.e., on oath. Statement oral or written does require that it should be made on oath to transform it into admissible format. As a corollary to written statement on oath, light and guidance can also be taken with reference to written statement defined in, C.P.C., it is being part of pleadings as mentioned under Order VI Rule 1 of Code of Civil Procedure, 1908 (CPC) which is required in a suit and it carries certain legal requisites that it must have verification (on oath or solemn affirmation) at the bottom that the contents of such and such paragraphs are based on his personal knowledge or from information received, as required under Order VI Rule 15 of, CPC.
If the accused does not want to appear as his own witness but put on any written statement, then it must be in that format as highlighted above, so as to help the Court to consider the facts based on oath as probable if it wishes to summon any material witness as DW or CW, or call for any document, indicated in said written statement, which is necessary for the just decision of a case. As per provisions of above section written statement of accused shall be filed with the record. It can be used as an evidence. Reliance is placed on the case “Muhammad Afzal versus The State” (2013 P Cr. L J 591). Even it is a bundle of information to exercise inquisitorial powers by the Court. The case reported as “Harbhajan Singh v. State of Punjab and another” (AIR 1966 Supreme Court 97) throws light on the importance and utilization of written statement.
If the accused means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence. “Entering on to defence” means accused shall appear as his own witness as required under Section 340(2) of Cr. P.C for recording of his statement and then face the cross-examination as required under Article 44 of Qanun-e- Shahadat Order, 1984; thereafter, he shall produce the witnesses in support of his evidence in the same fashion as it was done by the complainant in first episode of trial. The accused has also been provided facility of calling his witnesses through the Court process once he entered on his defence. Witness is usually called to support a stance raised by a party; if party is not examined first, there is no meaning for appearance of a witness.
20. As per above observation, it is now optional for the accused to appear as his own witness and he cannot be compelled; yet if he does not appear as a witness, he can go for an alternate by filing a written statement to avoid any cross-examination, yet in this way he would be in a position to produce his witnesses in support of averments of written statement. This observation is further elaborated in the terms that Evidence has been defined by Article 2(c) of Qanun-e-Shahadat Order, 1984 as under:
(c) “evidence” includes:
(i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence, and
(ii) all documents produced for the inspection of the Court; such documents are called documentary evidence;”
All such statements shall be made on oath as required by Section 5 of Oath Act, 1873; therefore, when these statements are made an oath, it is called that witnesses have been testified. Such testified statements become deposition and are regarded as testimony of witnesses of either party. The word “testimony” has been derived from a Latin word “Testis”, its fragments “Te” stands for “Tri” or third and “Stis” means “stance” or “stand”; so “testis” means “third stand /stance”. Usually both the parties bring on record their respective stances which could only be verified or defied with a third stand/stance and that third stance is in the form of witness to the parties. All that shows that a witness in support of party would only be called if the party first raises a stance through approved legal procedures. The intent and purpose of legislature to balance the opportunities for adducing evidence by both the parties is reflected from the above section which in fact saves the fundamental right of fair trial; it must be followed by all subordinate Courts conducting trials under Chapter XXII-A of Cr.P.C.
21. Having failed to establish the plea of self defence, this Court has no other view except to hold that in fact it was Muhammad Akhtar alias Muhammad Akram who had made repeated fire shots on deceased Khadim Hussain and this fact stands fully established through the prosecution evidence. For what has been discussed, it is crystal clear that accused/appellant has not brought on record his stance and defence witness in the process through formal ways; therefore, his plea could not be substantiated during the trial which disentitles him to claim acquittal. Learned trial Court, keeping in view some mitigating aspects like inconsequential effect of recovery and no previous enmity, has already extended leniency to the accused/appellant in terms of sentence awarded to him which perfectly confirms to principle of sentencing known as “Just desert” it requires the Court that sentence must commensurate with the act of offender which is justified in this case. In the sequel, the appeal filed by Muhammad Akhtar alias Muhammad Akram is dismissed, his conviction and sentence awarded by learned trial Court is maintained. He is present on bail; he was ordered to be taken into custody and be sent to the jail for serving out of his sentence. His sureties are discharged.
22. In the light of observation made above while dismissing the appeal of Muhammad Akhtar alias Muhammad Akram and by
acceptance of appeal of Anser, Criminal Revision No. 113/2011 which has been filed by Allah Yar (complainant) seeking enhancement of sentence qua both the above accused/appellants has no force which is dismissed. The case property, if any, be disposed of in accordance with law and the record of the learned trial Court be sent back immediately.
(K.Q.B.) Appeal dismissed
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