PLJ 2023 Cr.C. (Note) 12
Plea of alibi--
----Principle--It is settled principle of law that plea of alibi being special plea must be taken without loss of time. [Para 25] D
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Medical evidence--Case is a strong corroboration to ocular account--It is a case of promptly lodged FIR where all particulars of crime have been fully described those include names of appellant and his co-accused, weapons they were carrying specific allegation of fire by appellant, injuries-on person and then escape of assailants from crime scene--Court is not succeeded to find out any serious contradiction or material infirmity in statements of these three eyewitnesses who had no reason or enmity for false involvement of appellant in this case--Their statements appear to be quite natural and all these three witnesses narrated manners of occurrence with quite consistency--Defense was not able to shatter their credibility as they faced test of cross-examination in a confident manner--Immediately after post-mortem examination sealed jar was handed over to police Constable which in due course was deposited in ‘Malkhana’ where it remained intact and from that ‘Malkhana’ it was produced in Court--Said jar was containing pallets--To write those pallets as bullets at most appears to be inefficiency on part of Doctor which cannot destroy testimony of three eyewitnesses of this case--As appellant had taken special plea which is distinct in nature so it was his duty to prove same through cogent, convincing and plausible evidence--Mere an abstract from ‘Roznamcha’ (DC) of police Line after one month and ten days of crime, cannot support his plea--It is important to add here that appellant was posted in district Sahiwal ‘and distance of his alleged place of presence although is not clear from evidence but stated to be at a distance of about 12/14 Kilometers from crime scene--During investigation ASI, Constables, were joined by Investigating Officer in support of plea of alibi taken by appellant--Appellant did not deem it appropriate to produce any of them in witness box--This omission on part of appellant is an adverse blow to his plea of alibi--Appeal dismissed. [Para 15, 18, 22 & 26] A, B, C & E
Syed Muhammad Jaffar Tayyar Bukhari and Mr. Sardar Ashfaq Ahmad Khan Advocates for Appellant.
Mr. Adnan Latif Sheikh Deputy Prosecutor General for State .
Rana Muhammad Asif Saeed and Malik Sohail Iqbal Advocates for Complainant.
Date of hearing 28.2.2022.
PLJ 2023 Cr.C. (Note) 12
[Lahore High Court, Multan Bench]
Present: Sohail Nasir, J.
SALMAN MUJAHID etc.--Appellants
versus
STATE and others--Respondents
Crl. A. No. 101, PSLA No. 16 & Crl. Rev. No. 67 of 2020,
heard on 28.2.2022.
Judgment
Salman Mujahid (appellant), his real brother Usman Mujahid and a friend Usman Akram were tried in a private complaint filed by Musarrat Parveen/complainant (Pw-1) on the charges under Sections 302/34, PPC having the allegations of commission of ‘Qatl-i-Amd’ of Muhammad Khan (husband of complainant). On conclusion thereof vide judgment dated 29.09.2020 passed by the learned Additional Sessions Judge Chichawatni district Sahiwal, appellant was convicted under Section 302(b) PPC and sentenced to life imprisonment with direction to pay an amount of Rs. 500000/- (five lacs) as compensation to the legal heirs of deceased in terms of Section 544-A, Cr.P.C. and in default thereof to further undergo six months S.I. Benefit of Section 382-B, Cr.P.C. was also extended to appellant. On the strength of same judgment Usman Mujahid and Usman Akram were acquitted.
2. Salman Mujahid (appellant) on the .basis of criminal appeal (101 of 2020) has called in question the legality of his conviction whereas, Musarrat Parveen/complainant on the strength of criminal revision (67 of 2020) has asked for enhancement of sentences. Through PSLA (16 of 2020) she had too asked for reversal of order of acquittal of Usman Mujahid and Usman Akram.
3. Facts of the case are that by filing the private complaint on 02.10.2019 Musarrat Parveen (Pw-1) claimed that Muhammad Khan who was police Constable in district Khanewal and retired about 3 years ago was her husband and ruining a shop at Adda Khoi; on 03.08.2019 after closing the shop he came to the house in the evening; at about 08:30 pm there was a knock on the main gate; Muhammad Khan reached at the gate and followed by her/complainant and their daughters Maryam Khan (Pw-2) and Mubrrah Khan (not produced); the electric bulb outside the house was on; Muhammad Khan opened the door and they found in the street Salman Mujahid armed with .12-bore pistol, Usman Mujahid in possession of pistol 30-bore and Usman Akram; in the meantime Muhammad Akhtar (Pw-3) and Muhammad Azam (not produced) also arrived in front of their house; Usman Akram raised a ‘Lalkara’ not to leave alive Muhammad Khan and to teach him a lesson for insult, whereupon Salman Mujahid fired a shot with .12-bore carbine which hit on the right side of abdomen of Muhammad Khan who being injured fell down on the ground; all accused escaped from crime scene; Muhammad Khan in injured condition was taken to hospital Chichawatni; motive was that house of Usman Akram (accused) was opposite to their house where Salman Mujahid (appellant) and Usman Mujahid (accused) used to sit; all they were in habit to raise indecent sentences and they were also not enjoying good reputation; Khan Muhammad had forbidden them many a times to sit there so for this reason his ‘Qatl-i-Amd’ was made by appellant and his co-accused. Ultimate version of complainant was that as the Investigating Officer had made connivance with the assailants so she was compelled to file the private complaint.
4. It is important to add here that about the same occurrence FIR No. 120 (CW/6-A) at Police Station Ghazi Abad district Sahiwal was also registered on 04.08.2019 under Sections 302/34, PPC on the complaint of Musarrat Parveen (Pw-1) where she had narrated the same facts as in complaint. It is not disputed that Salman Mujahid (appellant) and Usman Akram were declared innocent during the investigation. About Salman Mujahid it was found that as police Constable he was present on his official duty at Jahaz ground Sahiwal hence he did not participate in the occurrence.
5. A charge under Sections 302/324, PPC on 10.12.2019 was framed against appellant and his co-accused for which they pleaded not guilty and asked for trial.
6. In support of her case Musarrat Parveen got her statement recorded as Pw-1 who also produced Maryam Khan (Pw-2), Muhammad Akhtar (Pw-3) and Sadaqat Ali (Pw-4).
7. The learned trial Court had examined Dr. Qamar Iqbal Shaheen (Cw-1), Muhammad Saeed Akhtar/Draftsman (CW-2), Riaz Hussain Constable (Cw-3), Ashiq Ali Constable (Cw-4), Ghulam Asghar Head Constable (Cw-5), Arif Ali ASI (Cw-6), Shahzad Akbar Head Constable (Cw-7) and Muhammad Amin S.I (Cw-8).
8. After the prosecution case was closed, appellant and his co-accused were called for their examinations under Section 342, Cr.P.C. The version of appellant to the question that why this case was against him was as under:
“I have been falsely involved in this case with malafide intention. At the relevant time and date of occurrence, I was present on my duty at Jahaz ground Sahiwal along with other police officials vide rapt No. 18 Ex.DC, police lines Sahiwal. During investigation, it was my version that I was present on my duty along with other police officials who appeared before the I.O. in support of my version and I. O recorded statement of Zeeshan Saleem, Naib Moharrar, police Lines Sahiwal who also supported my version and lastly during investigation, I was found innocent and my version was found correct. I. O also collected my mobile CDR and according to CDR my location was found at Jahaz ground Sahiwal at time of occurrence and complainant party did not challenge the result of investigation«as they were satisfied with the investigation. Nothing was recovered from me during my physical remand. I am innocent. I have no concern whatsoever with the occurrence. It is a false case.”
9. Appellant opted not to appear in terms of Section 340(2), Cr.P.C. however, in defence he produced Calling Data Record (CDR) of Muhammad Akhtar (DD) and Muhammad Azam (DE).
10. Learned counsel for appellant contended that on the basis of investigation it has been established that appellant on the day and at the time of occurrence being the police Constable was present on his duty at Jahaz ground Sahiwal along with other police officials and this fact was verified from repot No. 18 (DC) recorded in Roznamcha of Police Lines; investigating Officer also examined all other police officials who were on duty with appellant; plea of alibi raised by appellant was successfully established but wrongly ignored by the learned trial Court; statements of witnesses were in contradiction on material facts of the case; according to Musarrat Parveen/complainant she got recorded FIR after she came to know about injuries observed by the doctor in post-mortem report, therefore, FIR was recorded after due deliberations and consultations; story of bulb at crime scene is also under mystery; it is the duty of the prosecution to prove its case beyond reasonable doubt and the failure in this context is a good reason to extend benefit of doubt in favour of accused. Learned counsel finally argued that learned trial Court while convicting the appellant did not assign any good reason hence the conviction cannot sustain.
11. The appeal has been opposed by learned counsel for complainant who has also asked for enhancement of sentence and reversal of decision to the extent of acquittal of two accused of this case.
12. HEARD
13. Admittedly appellant at the time of occurrence was serving as Constable in police department and posted also at Sahiwal. His father was also retired Sub-inspector. Similarly Muhammad Khan (deceased) had retired as Constable three years earlier to this occurrence.
14. Both the parties were the residents of same locality therefore question of misidentification of appellant by witnesses hardly arises. The Bulb (P6) was taken into possession by Muhammad Amin S.I (Cw-8) vide a memo. (PD). The Honourable Supreme Court of Pakistan in ‘Muhammad Aslam alias Akria vs. The State PLJ 2019 SC (Cr.C) 532’ in similar circumstances was pleased to hold as under:
“The main argument of learned counsel for appellant is that it was a night time occurrence and no source of light has been mentioned by the complainant in the FIR. It has been observed by us that in the site-plan which was prepared on the instructions and pointation of the witnesses, the availability of 1000 watt rod and 200 watt bulb at points E and F respectively has been shown to be lit. Even otherwise, the parties are closely related to each other and identification of a close relative even in light is not a big deal”
15. Occurrence took place on 03.08.2019 at about 08:30 pm and FIR (Cw-6/A) was recorded at 12:15 am (midnight) on 04.08.2019. It is important to add here that Muhammad Amin S.I (Cw-8) coming to know about this occurrence arrived at THQ Hospital and at 11:00 pm he had completed the statement made by Musarrat Parveen on the basis of which FIR was registered. It means that much earlier to 11:00 pm the Investigating Officer was in hospital where Musarrat Parveen was present and the dead body was also there. In these circumstances, it is a case of promptly lodged FIR where all the particulars of crime have been fully described those include names of appellant and his co-accused, the weapons they were carrying the specific allegation of fire by appellant, the injuries-on the person of Muhammad Khan and then escape of assailants from crime scene. I have gone through the cross-examination made on all the relevant witnesses and I find that defence was completely unsuccessful to establish that FIR was not recorded at the given time and date hence it is a most important consideration for ultimate decision of the case.
16. Crime was committed at a time when Muhammad Khan opened the gate and fire was made on him by appellant. Muhammad Khan had fallen on the ground inside of his house and even this fact has not been seriously disputed during the cross-examination. Keeping in view the time of occurrence Musarrat Parveen (Pw-1) being the widow and Maryam Khan (Pw-2) being the real daughter of Muhammad Khan were the natural witnesses whose presence could not be disputed by defence.
17. Muhammad Khan was taken to
18. I have gone through the statement of Musarrat Parveen (Pw-1), Maryam Khan (Pw-2) and Muhammad Akhtar (Pw-3) who were subjected to cross-examination by defense. I am not succeeded to find out any serious contradiction or material infirmity in the statements of these three eyewitnesses who had no reason or enmity for false involvement of appellant in this case. Their statements appear to be quite natural and all these three witnesses narrated the manners of occurrence with quite consistency. Defense was not able to shatter their credibility as they faced the test of cross-examination in a confident manner.
19. The post-mortem was conducted on 04.08.2019 at 12:20 am (midnight). Dr. Qamar Iqbal Shaheen (CW. 1) observed following injuries on the body of deceased:
1. Fire-arm punctured wound 1 cm x 1 cm on the right side of lower abdomen. Wound was bleeding. Borders inverted. Wound was going deep. It is entry wound.
2. Fire-arm punctured wound 1 cm x 1 cm on the right side of lower abdomen. Wound was bleeding. Borders inverted. Wound was going deep. It is entry wound.
3. Fire-arm punctured wound 1cm x 1 cm on the right side of lower abdomen. Wound was bleeding. Borders inverted. Wound as going deep. It is entry wound.
4. Fire-arm punctured wound 1 cm x 1 cm on the right side of lower abdomen. Wound was bleeding. Borders inverted. Wound was going deep. It is entry wound.
5. Fire-arm punctured wound 1 cm x 1 cm on the right side of lower abdomen. Wound was bleeding. Borders inverted Wound was going deep. It is entry wound.
6. Fire-arm punctured wound I cm x 1 cm on the right side of lower abdomen. Wound was bleeding. Borders inverted. Wound was going deep. It is entry wound.
7. Fire-arm punctured wound 1 cm x 1 cm on the right side of lower abdomen. Wound was bleeding. Borders inverted. Wound was going deep. It is entry wound.
8. Fire-arm punctured wound 1 cm x 1 cm on the right side of lower abdomen. Wound was bleeding. Borders inverted. Wound as going deep. It is entry wound.
9. Fire-arm punctured wound I cm x 1 cm on the right side of lower abdomen. Wound was bleeding. Borders inverted. Wound was going deep. It is entry wound.
20. In the opinion of the Medical officer all the injuries were fatal in nature and caused by fire-arm weapon. The doctor declared the duration between injuries and death as immediate and between death and post-mortem approximately about 3 to 4 hours.
21. The nature of injuries clearly shows that all the wounds were caused by pallets and all were on the lower part of abdomen of Muhammad Khan. Duration between injuries and death is also an indicator that occurrence had taken place at the time that has been claimed by the prosecution.
22. After post-mortem examination doctor handed over a sealed jar by saying that it was containing bullets and this fact was taken quite seriously by both the sides. During cross-examination made by complainant said bottle was desealed which was containing pallets and those were recovered from the dead body. In cross-examination made by defense Doctor maintained that he could distinguish between pallets and bullets and outside the jar he recorded that foreign body was bullets. Learned counsel for appellant has maintained that this aspect of the matter had smashed the prosecution’s story that fire was made with .12-bore carbine. I do not agree with this contention for the reason that immediately after post-mortem examination sealed jar was handed over to police Constable which in due course was deposited in ‘Malkhana’ where it remained intact and from that ‘Malkhana’ it was produced in the Court. Said jar was containing pallets. To write those pallets as bullets at the most appears to be inefficiency on the part of Doctor which cannot destroy the testimony of three eyewitnesses of this case.
23. Resultantly I hold that medical evidence of this case is a strong corroboration to the ocular account.
24. Coming to defense plea the version of appellant has already been referred in earlier paragraphs of this judgment. According to Muhammad Amin (Cw-8) he had taken into possession copy of report of ‘Roznamcha’ showing that on 03.08.2019 Salman Mujahid (appellant) along with other police officials was present at duty at Jahaz ground Sahiwal. In this context appellant had also produced copy of report No. 18 of the ‘ Roznamcha’ of police Line Sahiwal.
25. It is the settled principle of law that plea of alibi being special plea must be taken without loss of time. The case of appellant appears to be different from other cases because he was serving police Constable so he knew that under the law what he was required to do or not to do? If on the day of occurrence he was on duty from 06:30 pm to 09:30 pm and FIR was recorded just after 3 or 4 hours of the occurrence he was supposed to surrender before the Investigating Officer without loss of time have examined the police file which shows that only Usman Anwar was the one who obtained his pre-arrest bail and he was arrested on 03.09.2019 when it was dismissed. This fact was stated by Muhammad Amin SI (Cw-8) that appellant was arrested in the case on 13.09.2019 that means after one month and ten days of the occurrence. This period was a good duration for appellant to manage many things.
26. As appellant had taken the special plea which is distinct in nature so it was his duty to prove the same through cogent, convincing and plausible evidence. Mere an abstract from ‘Roznamcha’ (DC) of police Line after one month and ten days of the crime, cannot support his plea. It is important to add here that appellant was posted in district Sahiwal ‘and the distance of his alleged place of presence although is not clear from evidence but stated to be at a distance of about 12/14 Kilometers from crime scene. During investigation Suba Sadiq ASI, Muhammad Wakeel Constable, Muhammad Javed Constable and Amir Hamza Constable were joined by the Investigating Officer in support of plea of alibi taken by appellant. Appellant did not deem it appropriate to produce any of them in the witness box. This omission on the part of appellant is an adverse blow to his plea of alibi.
27. In view of above circumstances, the learned trial Court rightly disbelieved the belated plea of alibi raised by appellant in this case.
28. The learned trial Court has also rightly awarded the sentence of life imprisonment to appellant for the reason that motive was not attributed to him.
29. Usman Akram and Usman Mujahid have been acquitted by extending the benefit of doubt keeping in view the allegations against them hence even that approach of the learned trial Court does not require any interference.
30. Concluding the discussion made above criminal appeal (101 of 2020) filed by appellant, criminal revision (67 of 2020) and PSLA (16 of 2020) preferred by complainant are hereby dismissed.
(A.A.K.) Appeal dismissed
0 Comments