PLJ 2022 Cr.C. 662
Real Culprits--
----Substitution--It is by now well settled law that substitution of real culprits especially in cases where eye-witnesses lost their kith and kin before their own eyes is rare phenomenon. [P. 665] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 396, 460 & 412--Conviction and sentence--Challenge to--Ocular account--Medical evidence--Committed qatl-i-amd of deceased after trespassing his house--Murder reference--Ocular account in this case has been furnished by related and interested witnesses is concerned, law is quite settled on point that an interested witness is one who is interested in conviction of an accused for some ulterior motive, but in this case, defence could not bring on record any ulterior motive of complainant or witnesses to falsely implicate appellant in this case--The prosecution case apart from ocular account also gets support from corroboratory evidence which is in shape of recovery of hair of appellant, which were taken into possession by investigating officer of this case vide seizure memo. and thereafter sent to office of PFSA--The Forensic Serology Analyst Report matches DNA profile of appellant--The prosecution case apart from ocular account also support from corroboratory evidence which is in shape of recovery of I.D. Card of complainant as well as cash Rs. 5000/---Insofar as crime weapon recovered from accused is concerned, suffice it to say, that although in present case during spot inspection eight crime empties of pistol .30 bore were collected and taken into possession vide recovery memo.--The said empties were kept in malkhana and sent to office of Forensic Science Laboratory but report of Forensic Science Laboratory depicts that empties so collected from spot were not found to have been fired from pistol recovered at instance of appellant, therefore, it was righty held by trial Court that recovery of alleged pistol from appellant has been rendered inconsequential--Even if High Court exclude evidence of recovery from consideration which has already been disbelieved by trial Court in its judgment, prosecution has successfully proved its case against appellant on charge of committing murder of deceased through confidence inspiring ocular account furnished--Appeal dismissed.
[Pp. 666 & 668] B, C, D, E & F
2003 SCMR 522, 2008 SCMR 222, 2010 SCMR 1772,
2012 SCMR 593 and 2017 SCMR 1727.
2011 SCMR 429.
Raja Rafaqat Ali, Advocate/Defence, Counsel for Appellant.
Hafiz Asghar Ali, Deputy Prosecutor General for State.
Mr. Ahya-ud-Din, Advocate for Complainant.
Date of hearing 7.12.2021.
PLJ 2022 Cr.C. 662
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
MUHAMMAD ASIF--Appellant
versus
STATE and another--Respondents
Crl. A. No. 81066 of 2017, heard on 7.12.2021.
Judgment
Muhammad Asif (appellant) alongwith co-accused Saghir Ahmad, Saqib Ali and Nawaz (since acquitted) were tried by the learned trial Court in case F.I.R. No. 717 dated 22.09.2016 registered at Police Station Civil Lines, Mandi Baha-ud-Din in respect of offences under Sections 460, 396, 397 & 412, PPC. After conclusion of the trial, the learned trial Court vide its judgment dated 15.05.2016 while acquitting the co-accused, has convicted and sentenced the appellant as infra:
Muhammad Asif
Under Section 396, PPC to life imprisonment for committing the Qatl-e-Amd of Muhammad Husnain (deceased) after trespassing into the house of complainant and to pay fine of Rs. 25,000/- to the legal heirs of deceased and in default thereof to further undergo one year S.I.
Under Section 460, PPC.
He is sentenced to seven years R.I
Under Section 412, PPC
He is sentenced-to-seven years R.I and in default thereof to further undergo one year S.I.
Sentences shall run concurrently, benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
Feeling aggrieved, the appellant has filed the titled appeal against his conviction and sentence.
2. The facts of the case have been stated by Muhammad Ilyas complainant (PW-13) in his statement before the learned trial Court, which is hereby reproduced for narration of the same:
"I testify that on 22.09.2016 at 09:30 pm I, my wife Razia, my son Muhammad Zubair and one Muhammad Shafi S/o Mushtaq Ahmad R/o Anayat Mohallah were sitting in the Courtyard of our house. We were chatting. My grandson Hussnain was playing near me. Electric bulbs were liting. In the meanwhile six arms persons entered into my house and all of sudden they pointed their weapons on us and threatened to hand over to them, which was with us otherwise they would murder us. We identified one of the accused namely Asif S/o Manzoor R/o Manzoor Hayat Colony, caste Mallah, Tehsil Bhalwal, District Sargodha. Accused Asif came forwarded and picked the purse from pocket containing original CNIC,
Rs. 5000/- and some important documents. Other accused may also be identified if they come across. One of the accused proceeded towards Muhammad Shaffi whereupon Muhammad Zubair and Muhammad Shaffi put resistance. Whereupon Muhammad Asif accused made a fire shot, which landed on the left back side of my grandson, husnain. Other accused also started firing. Out of which one fire hit the right buttock of my wife Razia, which went through and through. The report of firing attracted the inhabitants of Mohallah. The people of Mohallah and I myself shifted my grandson Husnain to Civil Hospital, M.D.Din where he succumbed to the injuries.
The six accused Asif etc committed dacoity in my house, murdered my grandson Husnain aged about 9- month and injured my wife Razia Bibi. The accused bolted away while making firing. I identify the accused Asif, Saghir, Nawaz and Saqib present before the Court."
3. Arguments heard and record perused.
4. I have observed that the occurrence in this case had taken place on 22.09.2016 at 09.30 p.m, whereas the matter was reported to the police on the same night at 10.55. p.m. within 1 hour and 25 minutes of the occurrence. So in this case the matter was reported to the police promptly and there was hardly any chance of consultation and deliberation in the intervening period. In the promptly lodged FIR, the name of the appellant with his role of causing pistol shot on the back of the chest of complainant's grandson namely Muhammad Husnain with the intention to murder him, has been mentioned. Reliance is placed upon the case law titled as "Abdul Wasay and others vs. The State and others" (2021 SCMR 1059) and Muhammad Hayat and another vs. The State (2021 SCMR 92).
"therefore, placing all the pieces of evidence in juxta position and evaluating the same, we are of the considered opinion that the prosecution has established the guilt against the appellant. In addition to it, it is a case of single accused, who has fired upon the deceased-Ghulam Ghous, therefore, substitution of a culprit is not possible besides it is a rare phenomenon where a witness whose close relative has been murdered would substitute the accused with an innocent person thereby allowing the actual accused to go scot-free."
Guidance can also be sought from the case of "Arshad Beg vs. The State" (2017 SCMR 1727).
"The record reveals that the appellant is the only nominated accused in the FIR by the complainant. He has been attributed the role of effective firing at the deceased Mst. Saima Bibi. We have observed that the eye-witness of this case namely Mst. Rukhsana (PW.7) has given the ocular account of the incident. She deposed that on the day of occurrence, her husband left his house after taking Iftari and she along with her daughter-in-law remained inside the house when in the meanwhile the appellant, duly armed with pistol, came there and fired at deceased-Mst. Saima Bibi, who sustained injuries and fell down. Her evidence gets corroboration from the contents of the FIR and the site plan, which was prepared on her pointation, wherefrom the crime empties and blood stained cloths were recovered by the investigating officer. We have observed that she was the natural witness of the occurrence as being inmate of the house she was supposed to be present there. Her presence in the house, in the given circumstances, cannot be doubted. She was subjected to lengthy cross-examination but nothing detrimental to the case of the prosecution was recovered from her statement. Although the deceased-Mst. Saima Bibi is the daughter-in-law of the eye-witness Mst. Rukhsana (PW.7) but it has been settled by this Court that mere relationship of a witness with the victim would not discard her/his evidence if it is otherwise confidence inspiring and trustworthy. Besides, the medical evidence also supports the prosecution version."
Similar view was also reiterated by the Hon'ble Supreme Court of Pakistan in the cases reported as "Abdul Rauf vs. The State and another" (2003 SCMR 522), "Zakir Hussain vs. The State (2008 SCMR 222)" "Sheraz Khan vs. The State " (2010 SCMR 1772) and "Zia Ullah and another vs. The State & Muhammad Aslam v. The State" (2012 SCMR 593).
7. As far as the arguments that medical evidence runs contrary to the prosecution version, it may be observed that medical evidence is in complete harmony with the ocular testimony and no conflict could be pointed out to create dent in the prosecution case as firearm injury on the person of Muhammad Husnain deceased is reflected in his postmortem report (Ex.PD), which ultimately became the cause of his unnatural death as opined by Dr. Muhammad Nawaz (PW-3), who conducted autopsy on his dead body. The firearm injury observed by the doctor on the person of deceased is specifically attributed by the eye-witnesses to the appellant. Furthermore, the ocular evidence about the kind of weapon used during the occurrence, time of incident and locale of injury as narrated by the eye-witnesses has also fully tallied with medical evidence. It may be observed here that this witness (PW-3) was also subjected to lengthy cross-examination but nothing beneficial to the appellant could be extracted from him.
8. I have also noted that ocular account is synchronized with the medical account, no contradiction in the narration of FIR, as it has been mentioned that at the time of occurrence an electric bulb was lighting which was subsequently taken into possession by the Investigating Officer vide possession memo. (Exh.PM).
9. Adverting to the defence plea of Muhammad Asif appellant, he while claiming his false implication in the present case stated in his statement recorded under Section 342, Cr.P.C. which is as under:
"I alongwith my co-accused have been falsely roped in this case. The complainant was toering the line drawn by the police against use due to the reason that we were abducted by the police agency, were kept in illegal detention at various places including the police station and were subjected to severe torture causing physical losses to us. Some petitions u/S. 491, Cr.P.C. were filed for our recovery from the illegal detention of the police. The police had been demanding huge illegal gratification from us in consideration of our release from their detention. We being the poor labourer could not accede to the demand of police. Resultantly, I alongwith my co-accused have been fitted in the instant case, otherwise it was the case of unseen occurrence. The PWs are closely related to the complainant that is why they have deposed falsely against me."
Considering above, it is concluded that the appellant has failed to prove his defence plea and learned trial Court has rightly discarded his defence plea with sufficient reasons. In view of above prosecution has proved its case beyond shadow of doubt against the appellant through the evidence discussed above.
(A.A.K.) Appeal dismissed
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