PLJ 2023 Cr.C. (Note) 34
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Absconsion of accused--Duty of prosecution--Mitigating circumstances--The statement of I.O. has made it crystal clear that he was declared as an absconder after completion of necessary formalities--Absconsion of an accused is also a corroborative circumstance of charge against him--Motive has also been proved--Ocular account is fully corroborated by medical evidence coupled with abscondence of appellant--Trial Court has rightly appreciated evidence of prosecution/material available on record in its true perspective and as such no substance has been found to interfere with well-reasoned judgment of trial Court to extent of appellant and High Court has not been able to point out any perversity, illegality and impropriety as well as any loophole to extend any benefit to appellant--As far as contiguity of quantum of sentence is concerned, that trial Court while taking into account mitigating circumstances rationally inflicted equitable quantum of sentence considering all pros and cons of case, therefore, instant appeal being devoid of any force merit to his extent is hereby dismissed, as a consequence whereof, his conviction and sentence as recorded by trial Court vide impugned judgment is maintainable and upheld--Appeal dismissed.
[Para 9] A & B
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Absconsion of accused--Motive has also not directly been attributed to him--He is real brother of co-appellant and as such possibility of his false implication by complainant with mala fide and ulterior motive by throwing wider net cannot be ruled out--As far as his absconsion for a considerable period is concerned, suffice it to say that long abscondence of accused cannot be formed basis for recording of conviction and it can be considered as a corroborative piece of evidence--There are serious doubts regarding his involvement--His absence was corroborative factor if otherwise prosecution succeeds to prove its case or there was some plausible evidence available on record to connect him with commission of alleged offence--Even otherwise, it is not necessary that not only guilty persons abscond to avoid their arrest but also innocent persons also used to abscond to avoid agonies at hands of police, hence, it cannot be held that he absconded being guilty mind rather it would be being innocent--In such circumstances, his involvement is highly doubtful--So while extending him benefit of doubt, he is acquitted of charge framed against him--He is in jail, greeted to be set at liberty in this case, in a trice, if not required in any other case. [Para 10] C & D
Ms. Nighat Saeed Mughal, Advocate for Appellants.
Miss Rahila Shahid, DDPP for State.
M/s. Shoukat Nawaz Gondal and Mian Mazhar Hussain, Advocates for Complainant.
Date of hearing: 9.3.2022.
PLJ 2023 Cr.C. (Note) 34
[Lahore High Court, Lahore]
Present: Anwaarul Haq Pannun, J.
MUHAMMAD IQBAL and another--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 72360 & Crl. Rev. No. 72359 of 2019, decided on 9.3.2022.
Judgment
Muhammad Iqbal and Muhammad Javed sons of Mureed Hussain were involved in case FIR No. 81/2001 dated 26.07.2001, offence under Sections 302, 324, 34, PPC, registered with Police Station Dalwaryam, District Pakpattan Sharif, thus tried by learned Additional Sessions Judge/Judge MCTC, Pakpattan, who vide his judgment dated 30.10.2019 convicted and sentenced them in the following terms:
1) Muhammad Iqbal
2) Muhammad Javed
Under Section 302(b), PPC
Life Imprisonment each by way of Ta'zir with direction to pay Rs. 5,00,000/-each as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased Nazar Muhammad. In case of default in payment whereof, to further undergo SI for six months each.
They were also extended the benefit of Section 382-B, Cr.P.C.
2. Feeling himself aggrieved of the judgment of conviction, the appellants have assailed it by filing the captioned criminal appeal. The complainant Muhammad Iqbal has filed captioned revision petition seeking enhancement of sentence of appellants as well as compensation amount imposed through the impugned judgment. Since both the matters have emanated from the same judgment, therefore, are being disposed of through this consolidated judgment.
3. Prosecution's story as projected through FIR (Exh.PA) reflects that in the intervening night of 25/26.07.2001, the complainant, Muhammad Iqbal (PW-1) alongwith his brothers namely Nazar Muhammad (deceased), Zafar Iqbal and father Muhammad Ramzan were sleeping in the Courtyard of their house. The son of Nazar Muhammad namely Shahbaz (aged about 4/5 years) was also sleeping with him. In the Courtyard, the electric bulb was on. At about 1.45 a.m. (night), he woke up on the noise and found accused Mureed, Zubair s/o Mureed (empty handed), Muhammad Iqbal s/o Mureed armed with .12 bore, Muhammad Javed s/o Mureed armed with rifle standing near the cot of Nazar Muhammad. Mureed and Zubair raised a ‘Lalkara’ to murder Nazar Muhammad whereupon Muhammad Iqbal made fire-shot with his .12 bore gun hitting Nazar Muhammad on his chest. Then Muhammad Javaid made a fire shot from his rifle which landed on left elbow of Nazar Muhammad. The PWs tried to apprehend the accused but they threatened them to stay away and escaped from the scene of crime. Nazar Muhammad succumbed at the spot. Shahbaz (minor) was also injured in the occurrence.
Motive behind the occurrence was that on 16.04.1999, the brother of accused Muhammad Iqbal namely Zafar Iqbal was murdered and the accused Muhammad Iqbal had the grudge that Zafar Iqbal was involved in that murder. On this grudge the accused persons murdered Nazar Muhammad and injured minor Shahbaz. The appellants were found involved in the occurrence. On submission of challan, after ancillary proceedings, the accused pleaded not guilty and claimed trial.
4. The prosecution's case hinges upon direct evidence. Ocular account has been furnished by Muhammad Iqbal s/o Ramzan, complainant (PW-1) and Zafar Iqbal son of Ramzan (PW-2). Ghulam Abbas Inspector/I.O. (PW-11) and Muhammad Ashraf SI/I.O (PW-12) The medical evidence has been furnished by Dr. Muhammad Farooq Malik, M.O. (PW-10) who conducted post-mortem examination on the dead body of Nazar (deceased) on 26.07.2001 at 1.30 p.m. and observed following injuries:--
1. A fire-arm lacerated wound of entry 2.5 x 2 cm x deep going inverted burnt margins on right sterna area slightly above and 8 cm from right nipple.
2. A fire-arm lacerated wound of entry 1 x 1½ cm x deep going with inverted margins on outer side of left elbow joint.
3. A fire-arm lacerated wound of entry 1 x 1½ cm x deep going on medial middle part of left upper arm. Left humerious bone was fractured. Skill, brain, membranes were healthy.
He expressed his opinion as follows:--
"In my opinion, the cause of death was excessive hemorrhage and shock due to Injury No. 1 resulting severe damage to the blood vessels of the heart, right pulmonary blood vessels and the lung, Injury No. 1 was sufficient to cause death in an ordinary course of nature. All the three injuries were ante-mortem.
On dissection of Injury No. 1, one plastic wad and 6 pellets were recovered from the chest cavity and posterior internal wall on the right side.
Probable time that elapsed between injury and death was within about five minutes and between death and post-mortem was within 15 hours."
5. Learned DDPP while tendering in evidence report of Chemical Examiner (Exh.PT) and Fire Arms and Tool Marks Examiner report of PFSA (Exh.PU) closed the prosecution's case. Evidence of rest of the PWs being formal in its nature, therefore, discussion thereon is dispensed with in order to main brevity.
6. When examined under Section 342, Cr.P.C., the appellants gainsaid the allegations levelled against them through the prosecution version/evidence and professed their innocence. They did not opt to appear as their own witness in terms of Section 340(2), Cr.P.C., they, however, opted to adduce evidence in their defence and while placing on record certain documents in shape of Mark-DA and Exh.DD closed defence evidence.
7. The learned trial-Court on conclusion of trial as aforesaid, convicted and sentenced the appellants only in the above stated terms.
8. Heard. Record perused.
9. First of all, I take up the case of appellant Muhammad Iqbal. The occurrence under discussion took place in the intervening night of 25/26.07.2001 which was promptly reported to the police on 26.07.2001 at 3.45 a.m. (night). He, as per prosecution's version, while armed with .12 bore gun made fire shot hitting deceased on his chest; The occurrence allegedly committed inside the house. Both the eye-witnesses namely Muhammad Iqbal (PW-1) and Zafar Iqbal (PW-2) are jointly resident of the house of occurrence. The occurrence was committed in the month of July and in the month of June-and July normally weather is much hot and people of the, villages used to sleep in their Courtyard. Both the aforesaid PWs remained consistent on material point despite the fact that they were cross-examined at length by the of defence regarding scene of crime. They are the real brothers of the deceased. Their residence/presence in the same house is established. The occurrence is of midnight, therefore, their presence in the Courtyard of the same house is quite natural. As far as identity of appellant Iqbal is concerned, he and the PWs are the resident of the same village i.e. 78/D, Pakpattan. They belong to same caste and inter se related. The PWs from the lodging of the FIR till their deposition before Court have taken a consistent stand that they identified the accused in the light of bulb. As witnesses and accused are relative, therefore, their identity in the light of bulb is quite plausible, hence, question of mistaken identity does not arise. The site-plan of the place of occurrence Exh.PB/B reflects the presence of PWs at the time of occurrence. The occurrence took place in year, 2001 whereas the trial of the appellants comments on 22.02.2019. After such a long time, minor contradictions in deposition are natural because human memory fades with the afflux of time. The defence has not challenged the time, date and place of occurrence. So far as abscondence of the appellant is concerned, he was arrested in this case on 29.12.2018 and as such he remained fugitive from law for, a long period of about 18 years and no plausible explanation whatsoever has been furnished for such absconsion. The statement of I.O. has made it crystal clear that he was declared as an absconder after completion of necessary formalities. Absconsion of an accused is also a corroborative circumstance of the charge against him. It is paramount duty of the prosecution to prove presence of the PWs at the relevant time of occurrence. Being residents of the same house, the presence of the prosecution witnesses at the time of occurrence at the scene of crime is quite natural. Both the PWs have been cross-examined at length by the defence. Nothing favourable to the defence could has been brought on record. Ocular account is duly corroborated with the medical evidence furnished by Dr. Muhammad Farooq Malik, Medical Officer (PW-10). He on 26.07.2001 at 1.30 p.m. conducted post-mortem examination on the dead body of Nazar (deceased). He while appearing in the witness box as M.O. has affirmed the stamps of injuries he observed at the time of post-mortem examination on the person of deceased. The injuries coincide with the deposition made by eye-witnesses i.e. PW-1 Muhammad Iqbal, complainant and PW-2 Zafar Iqbal. Recovery of .12 bore gun (P-1) alongwith live bullets P-2 has also been affected by the I.O. (PW-5) on pointing out of the appellant on 04.01.2019 vide memo Exh.PL. As far as non-matching of recovery of P-1 with the secured empty is concerned, since recovery was affected after 18 years of the occurrence, hence may not coincide with the empty etc. because there is possibility of rust after such a long period of time. Even otherwise, evidence of recovery is a corroboratory piece of evidence. Motive has also been proved. In view of above, the ocular account is fully corroborated by the medical evidence coupled with abscondence of the appellant. The learned trial Court has rightly appreciated the evidence of the prosecution/material available on record in its true perspective and as such no substance has been found to interfere with the well-reasoned judgment of the learned trial Court to the extent of appellant Muhammad Iqbal and this Court has not been able to point out any perversity, illegality and impropriety as well as any loophole to extend any benefit to the appellant. As far as the contiguity of the quantum of sentence is concerned, it has been observed that learned trial Court while taking into account mitigating circumstances rationally inflicted equitable quantum of sentence considering all the pros and cons of the case, therefore, the instant appeal being devoid of any force merit to his extent is hereby dismissed, as a consequence whereof, his conviction and sentence as recorded by the learned trial Court vide impugned judgment dated 30.10.2019 is maintainable and upheld.
10. As far as case of appellant Muhammad Javed is concerned, the role attributed to him is that he while armed with rifle made fire shot hitting Nazar Muhammad deceased on his left elbow. He has not been attributed fatal fire shot. The doctor PW-10 has mentioned that ‘one plastic wad and 6 pellets were recovered. Since co-appellant made fire shot with .12 bore gun, hence, there is possibility that one of the pellets of gun .12 bore may have hit the deceased at his elbow. Even otherwise, the empty collected by the I.O. from the spot was not matched with the recovery affected from him as per report of PFSA (Exh.PU). Motive has also not directly been attributed to him. He is the real brother of co-appellant and as such possibility of his false implication by the complainant with mala fide and ulterior motive by throwing wider net cannot be ruled out. As far as his absconsion for a considerable period is concerned, suffice it to say that long abscondence of the accused cannot be formed basis for recording of conviction and it can be considered as a corroborative piece of evidence. As stated above, there are serious doubts regarding his involvement. His absence was corroborative factor if otherwise prosecution succeeds to prove its case or there was some plausible evidence available on the record to connect him with the commission of alleged offence. Even otherwise, it is not necessary that not only the guilty persons abscond to avoid their arrest but also innocent persons also used to abscond to avoid the agonies at the hands of the police, hence, it cannot be held that he absconded being guilty mind rather it would be being innocent. In such circumstances, his involvement is highly doubtful. So while extending him the benefit of doubt, he is acquitted of the charge framed against him. He is in jail, greeted to be set at liberty in this case, in a trice, if not required in any other case.
11. So far as Crl. Revision Petition No. 72359 of 2019 filed by Muhammad Iqbal complainant for enhancement of sentence of respondent/appellants as well as increase of amount of compensation is concerned, in view of my op-cit findings, the same stands dismissed accordingly.
(A.A.K.) Appeal dismissed
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