PLJ 2023 Cr.C. (Note) 70
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Qatl-e-amd--Challenge to--Ocular account--Eye-witnesses--It is anxiously noticed that none of three eye-witnesses were having any previous animosity with appellant on account of some long standing dispute--In these circumstances, none of eye-witnesses can be termed as inimically placed against appellant--The three eye-witnesses remained in unison with each other regarding all details of incident, even minute in nature like time of incident, manner in which it occurred, identity of assailants, weapon with which fatal injury was inflicted and place from which shot was fired--Even post-mortem examination is found to have been conducted without any uncalled for delay--Inexorably, medical evidence is in absolute conformity with eye-witness account narrated by three persons--Nothing as such is brought before High Court, which may cast doubt about recovery of .44 bore riffle effected from appellant, thus, report of PFSA provides strong corroboration to ocular account--If any further corroboration is required, it can well be sought from noticeable abscondance of appellant, which is comprising upon more than two years--The incident was occurred on 20.05.2016 and appellant became fugitive from law, thus, initially his non-bailable warrants were issued and later a proclamation was ordered--In support of warrants and proclamation, (PW-14) appeared as witness during trial--Such noticeable abscondance can legally be used for purposes of corroboration--Motive behind crime is concerned it remained unproved as Chairman, who convened Jirga, was neither associated in investigation nor appeared as witness during trial--Prosecution was found to have successfully proved its case against the appellant, appeal was dismissed.
[Para 10, 11, 12, 13 & 14] A, B, C, D & E
Mr. Qaiser Mehmood Awan Advocate for Appellant
Ms. Mamoona Ehsan-ul-Haq, DDPP for State.
M/s. Basharat Ullah Khan and Arshad Majeed Ch., Advocates for Complainant.
Date of hearing: 12.10.2021.
PLJ 2023 Cr.C. (Note) 70
[Lahore High Court, Rawalpindi Bench]
Present: Ch. Abdul Aziz, J.
MUHAMMAD IKRAAM-UL-HAQ--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 465 of 2019, heard on 12.10.2021.
Judgment
Muhammad Ikraam-ul-Haq (appellant) booked in case FIR No. 101 dated 20.05.2016 registered under Sections 302, 324, 337-F(i), 148, 149, PPC at Police Station Chountra, Rawalpindi was tried by learned Additional Sessions Judge, Rawalpindi. The learned trial Court vide judgment dated 23.05.2019 proceeded to convict and sentence the appellant in following terms:--
Under Section 302(b), PPC to suffer life imprisonment. He was also directed to pay compensation amounting to
Rs. 2,50,000/-to the legal heirs of the deceased and in default whereof he was ordered to further undergo six months S.I.
Benefit of Section 382-B, Cr.P.C. was also extended to the convict.
Challenging his conviction and sentence, Muhammad Ikraam-ul-Haq (appellant) filed instant appeal.
2. Precisely stated the case of prosecution, as disclosed by complainant Mst. Shazia Khalid (PW-11) in complaint (Exh.PK) is to the effect that she is resident of village Paryal, Tehsil Rawalpindi; that her husband Muhammad Khalid was an employee of WAPDA; that on 19.05.2016 a quarrel took place between her maternal uncle Mohabat Khan and neighbourer Faiz Zaman over a house-pipe; that to settle this dispute through the intervention of Chairman Nazar Abbas, a jirga was convened for 20.05.2016 at about 10:00 a.m.; that on 20.05.2016 at about 6:30 a.m. on hearing noise, she along with her husband reached at the door of Mohabat Khan, where Faiz Zaman, Arfan armed with club, Ehsan armed with pistol were already present; that Faiz Zaman had caught hold of Abdul Sattar s/o Mohabat Khan, whereas Irfan was inflicting club blows to Abdul Sattar; that in the meanwhile her uncle Mohabat Khan and brother Tariq Mehmood also attracted there; that as soon as they reached at the spot, Ikraam armed with rifle .44 bore came at the roof of neighbourer Muhammad Ali, whereas, 3/4 armed unknown persons also came in the street; that accused Faiz Zaman raised lalkara that Mohabat Khan, Khalid, Abdul Sattar and Tariq, etc. be killed, upon which accused Ehsan made a straight fire with .30 bore pistol on Mohabat Khan, who luckily remained unhurt; that accused Ikraam-ul-Haq, who was standing on roof, made a straight fire with his riffle .44 bore on Muhammad Khalid, which hit his right shoulder and caused his instantaneous death; that accused persons after making firing fled away from the spot.
3. On receipt of information of this incident, Zahir-ud-Din Babar SI (PW-16) along with police officials reached at DHQ Hospital, Rawalpindi and recorded oral statement (Exh.PK) of Shazia Khalid (PW-11). He prepared injury statement (Exh.PC) of Abdul Sattar (injured). He also examined the dead body of deceased and prepared inquest report (Ex.PH). He inspected the place of occurrence and prepared un-scaled site-plan (Ex.PY) and got prepared scaled site-plan (Exh.PA/1-2) through draftsman. He also secured one crime empty (P6) .30 bore pistol and one empty (P7) of .44 bore riffle and took them into possession through recovery memo. (Ex.PM and Ex.PN), respectively. On 20.07.2016, he arrested accused Muhammad Irfan, interrogated him, who on 30.07.2016 made disclosure and got recovered danda (P-8), which was taken into possession through recovery memo. (Ex.PO).
On 12.08.2018, the investigation of the instant case entrusted to Mukhtar S.I. (PW-15), who arrested accused Ikraam-ul-Haq on 27.09.2018. The accused was interrogated, who on 05.10.2018 made disclosure and led to the recovery of riffle .44 bore (P-5), which was taken into possession through recovery memo. (Ex.PJ). Subsequently, he got prepared report u/S. 173, Cr.P.C. and submitted it in the Court.
4. Prosecution in order to prove its case against the appellant produced 16 PWs including Mst. Shazia Khalid, Abdul Sattar and Mohabbat Khan (PW-11, PW-12 and PW-13) who are the eye-witness of the occurrence, Mukhtar S.I, and Zaheer-ud-Din Babar (PW-15 and PW-16) investigated the case. Dr. Saleem Murtaza (PW-8), who conducted medical examination of Abdul Sattar and issued MLC (Exh. PD), Dr. Hafiz Muhammad Qasim Khan (PW.9), who conducted autopsy of Muhammad Khalid and issued post-mortem examination report (Exh.PG). The remaining witnesses, more or less, were formal in nature.
5. After the conclusion of prosecution evidence, the learned trial Court also examined the appellant under Section 342, Cr.P.C. during which questions were asked arising out of the prosecution evidence but he denied almost all such questions while pleading his innocence and false involvement in the case. Appellant neither made statement under Section 340(2) of Cr.P.C., nor produced any evidence in his defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence, the instant criminal appeal.
6. It is contended by the learned counsel for the appellant that the First Information Report suffers from unexplained delay of 4½ hours, which gives sufficient reflection about fabrication and concoction of facts; that incident occurred in a public vicinity but no independent witness was produced by the prosecution; that the eye-witnesses failed to substantiate their presence at the spot and also contradicted each other on all material points; that it reasonably evinces from the site-plan that the point, from where appellant fired, was not visible to witnesses; that since the eye-witnesses were disbelieved to the extent of acquitted co-accused, hence, conviction awarded to the appellant cannot be upheld on the same set of evidence; that prosecution though came forward with a specific motive but failed to prove it; that even the positive report of PFSA loses its significance when seen in the context that the weapon of offence was recovered from appellant contrary to the provision of Section 103, Cr.P.C. and that though prosecution failed to prove its case against the appellant but still he was convicted. With these submissions, learned counsel urged that appellant be acquitted from the case.
7. On the other hand, learned Law Officer assisted by the learned counsel for the complainant came forward with the submissions that the information of crime was imparted to police without any unnecessary delay; that during trial, three eye-witnesses remained consistent in holding the appellant exclusively responsible for the death of deceased; that the eye-witnesses besides having no enmity with appellant were also the resident of same locality; that ocular account is inconformity with medical evidence; that appellant remained fugitive from law for a considerable time and this aspect can be used for corroboration; that if any further corroboration is required that can be sought from the duly established motive and positive report of PFSA and that since the prosecution successfully proved its case against the appellant, hence, conviction awarded to him calls for no interference.
8. Arguments heard and record perused.
9. In order to appreciate the respective contentions of both sides, I have scanned the record and it is noticed that the case is emerging from an incident having taken place on 20.05.2016 at about 06:30 a.m. during which one Muhammad Khalid was murdered. Shazia Khalid widow of deceased reported the matter to police in DHQ, Hospital Rawalpindi through oral statement (Ex.PK) recorded by Zaheer-ud-Din Babar S.I. at about 09:40 a.m. Since from the record, it divulges that complaint (Ex.PK) was completed within two hours and ten minutes of the incident, hence, no delay in reporting the crime to police is discernible. The promptitude with which the matter was reported to police, excludes the possibility of element of concoction and fabrication.
10. The crime scene is a vicinity known as Paryal, situated within the jurisdiction of Police Station Chontra. The ocular account was furnished in this case by three witnesses, namely, Shaiza Khalid, Abdul Sattar and Mohabat Khan (PW-11, 12 and 13), who all were residents of the same neighborhood. The incident of homicide occurred in the early hours of the day at about 06:30 a.m. and since nothing as such is canvassed by the prosecution that the eye-witnesses should have been present at some other place, hence, their claim of having seen the occurrence is not open to any exception. In the same stretch, I am persuaded to observe that the narrators of ocular account are natural witnesses. Though, Shazia Khalid (PW-11) was the wife of deceased and remaining two witnesses, namely, Abdul Sattar and Mohabat Khan (PW-12 and 13) were also related to the deceased as cousin and uncle, respectively, but merely on the basis of such relationship their deposition cannot be discarded. It is anxiously noticed that none of the three eye-witnesses were having any previous animosity with the appellant on account of some long standing dispute. In these circumstances, none of the eye-witnesses can be termed as inimically placed against the appellant. One of the eye-witness, namely, Abdul Sattar (PW-12) claimed to have received blunt traumas during the incident and in support thereof Dr. Saleem Murtaza (PW-8) appeared in the dock along with MLC (Ex.PE). Though, these injuries were attributed to Muhammad Irfan and he was acquitted but as an abundant caution. In these circumstances, the acquittal of Muhammad Irfan can by no stretch be considered as detrimental to the case of prosecution.
11. In the above backdrop, it is observed that all the three eye-witnesses remained consistent in attributing Muhammad Ikraam-ul-Haq (appellant) the allegation of inflicting fatal fire-arm injury to Muhammad Khalid (deceased). Besides that, the three eye-witnesses remained in unison with each other regarding all the details of incident, even minute in nature like the time of incident, the manner in which it occurred, the identity of the assailants, the weapon with which fatal injury was inflicted and the place from which the shot was fired. Similarly, no anomaly is noticed from the post occurrence events like shifting of deceased to hospital, the arrival of police in DHQ hospital, the time when the crime was reported to police, etc. Inexorably, the ocular account is found by this Court to be impeccable, sufficient for placing explicit reliance upon it.
12. I have also dilated upon the medical evidence and it is found to have been furnished by Dr. Hafiz Muhammad Qasim (PW-9), who on 20.05.2016 conducted autopsy and observed a fire-arm entry wound with a corresponding exit at locales exactly mentioned by the eye-witnesses. Even the post-mortem examination is found to have been conducted without any uncalled for delay. Inexorably, the medical evidence is in absolute conformity with the eye-witness account narrated by three persons.
13. The appellant was arrested in this case on 27.09.2018 and later, on 05.10.2018 he in pursuance of a disclosure led the police to the recovery of .44 bore riffle, which was secured through recovery memo. (Ex.PJ). It is also important to mention here that during spot inspection, a crime empty of .44 bore (P7) was also secured from the spot and was forwarded to PFSA much before the arrest of appellant. As per PFSA report (Ex.PCC) the riffle so recovered from the appellant was found wedded with the crime empties secured from the spot. Nothing as such is brought before this Court, which may cast doubt about the recovery of .44 bore riffle effected from the appellant, thus, the report of PFSA (Ex.PCC) provides strong corroboration to the ocular account. If any further corroboration is required, it can well be sought from the noticeable abscondance of appellant, which is comprising upon more than two years. The incident was occurred on 20.05.2016 and the appellant became fugitive from law, thus, initially his non-bailable warrants (Ex.PQ) were issued and later a proclamation (Ex.PU) was ordered. In support of the warrants and proclamation, Azhar Nadeem 3256/C (PW-14) appeared as witness during trial. Such noticeable abscondance can legally be used for the purposes of corroboration.
14. So far as, the motive behind the crime is concerned it remained unproved as Nazar Abbas Chairman, who convened Jirga, was neither associated in investigation nor appeared as witness during trial.
15. In the aforementioned circumstances, the prosecution is found to have successfully proved its case against the appellant, thus, the appeal filed by him against conviction is dismissed.
(A.A.K.) Appeal dismissed
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