PLJ 2024 Cr.C. (Note) 262
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and Muhammad Amjad Rafiq, JJ.
versus
STATE, etc.--Respondents
Crl. A. No. 56690 & M.R. No. 263 of 2019, decided on 15.2.2014.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 374--Qatl-e-amd--Quantum of sentence--Conviction and sentence ocular account fully supported by medical evidence--Both witnesses were cross-examined by defence at considerable length but they stood firm in their stance and reiterated facts by toeing each other on almost all material aspects of case and defence failed to elicit anything favourable to it or damaging to prosecution--Recovery may be one of corroborative circumstances, but this by itself is not sole indicator of culprit and once most important piece of evidence i.e. ocular account has been disbelieved, this corroborative evidence will remain fruitless for prosecution and is not helpful to prosecution to stretch criminal liability against appellant--High Court is convinced that though recovery remains inconsequential and motive could not be established, otherwise, prosecution succeeded in establishing its case against accused/appellant by producing natural and convincing ocular account which stands fully supported by medical evidence--Conviction of accused/appellant u/S. 302(b), PPC being unexceptionable, stands upheld--However, while considering quantum of sentence--Motive could not be proved and recovery is of no use to prosecution, which gives rise to create mitigation to reconsider quantum of sentence recorded against accused/appellant--As such, while sustaining conviction under said section, sentence of death is altered to imprisonment for life, whereas, compensation and imprisonment in default thereof, as ordered by trial Court shall remain intact.
[Para 8, 10 & 12] D, E, G & H
2019 YLR 1046, 2007 SCMR 1413 & PLD 2009 SC 709.
“Falsus in Uno Falsus in Omnibus”--
----It is trite law that on principle of falsus in uno, falsus in omnibus, if witnesses are disbelieved against one set of accused; their testimony cannot be accepted qua other accused; yet under “principle of abundant caution”, an accused can be singled out from other if independent corroboration is available. [Para 7] A
2020 SCMR 664.
Acquittal--
----Irrespective of acquittal of five of co-accused, case of present accused/appellant can be considered separately. [Para 7] B
2019 SCMR 1368, 2019 SCMR 1309 & 2019 SCMR 1362.
Capital Punishments--
----In matters of capital punishments, accused would not stand absolved by making a mere allegation, rather would be required to bring on record that there had been such a dispute/enmity which could be believed to have motivated “natural witnesses” in involving innocent at cost of escape of “real culprits”--It may be mentioned here that where natural witnesses are in blood-relation then normally possibility of substitution becomes rare--Thus, no material has been brought on record by appellant to justify that deep rooted enmity existed earlier between parties, which could have been reason for false involvement of appellant in this case.
[Para 8] C
2006 SCMR 1846.
Motive--
----Law is settled by now that if prosecution asserts motive but fails to prove same, then such failure on part of prosecution would give rise to mitigation for purpose of reconsidering quantum of sentence passed by trial Court. [Para 11] F
2018 SCMR 911.
Mr. Bilal Ijaz Chaudhry, Advocate for Appellant.
Rai Akhtar Hussain Kharral, Additional Prosecutor General for State.
Mr. Tahir Chaudhry, Advocate for Complainant.
Date of hearing: 15.2.2024.
Judgment
Muhammad Amjad Rafiq, J.--In case FIR No. 775 dated 24.10.2018 under Sections 324/302/148/149, PPC police station City, Hafizabad, registered on the complaint of Ahsan Ullah (PW-7), the accused/appellant Muhammad Rizwan along with Naveed Ahmad, Shakeel Ahmad, MahmoodaKhanum, Waheed-ur-Rehman and Kamran alias Kami faced trial before learned Additional Sessions Judge (MCTC), Hafizabad and on conclusion of trial vide judgment dated 06.08.2019, the accused/appellant was convicted under Section 302(b), PPC and sentenced to death with further order to pay Rs. 200,000/- as compensation under Section 544-A, Cr.P.C., whereas, all other co-accused were acquitted of the charge. Through Criminal Appeal No. 56690 of 2019 the accused/appellant has assailed his above conviction/ sentence, whereas, Murder Reference No. 263 of 2019 has been sent by the learned trial Court as required by Section 374, Cr.P.C. Both these matters are being decided through this single judgment.
2. On 24.10.2018, Ahsan Ullah complainant (PW-7) through Ex.PD reported that he is resident of Farooq-e-Azam road, street Haji Ahmad Din Wali and had started reconstructing his dilapidated house, whereas, sons of Abdul Majeed, his neigbour, occasionally used to restrain him, whereupon, he through Mohaladars beseeched them to allow constructing the wall on his own land, as he was neither raising wall on their land nor was damaging their wall, despite that they nourished grudge. On 23.10.2018 at 11.00 a.m. when the complainant along with his son Taimoor was shuttering the door, Mst. Mahmooda Bibi came and said that she would not allow them to lay lanter, otherwise, she would get murder his both sons, but the complainant continued shuttering and after completion came back to his rented house. At about 4.00 p.m. on hearing fire shots in under construction house, the complainant and his son Taimoor from roof saw that Naveed, Shakeel, Rizwan (sons of Abdul Majeed), Kamran alias Kami and ¾ unknown accused all armed with firearms, were firing, Mst. Mahmooda Bibi and Waheed also present at the site were abusing and raising lalkara to teach lesson for laying lanter. The complainant and his son Taimoor in the light of threats extended by Mst. Mahmood Bibi while sensing threat ran from the spot and reached at the electric repairing shop of Waleed, other son of the complainant so as to take him along. Meanwhile, accused chased and encircled them. Accused Naveed and Shakeel caught hold of Waleed by arms, Kamran alias Kami Jatt accused fired at the leg of Waleed which fire was missed, thereafter, he injured the nose of Waleed by pistol butt, whereas, Rizwan accused/appellant fired at Waleed which hit left side of his neck near the ear, who fell down and the accused decamped. Waleed was taken to Trauma Centre Hafizabad in injured condition, where from he was referred to General Hospital, Lahore. The complainant remained busy in treatment of Waleed and then submitted the complaint to the SHO for registration of case.
3. After usual investigation report under Section 173, Cr.P.C. was submitted, when charge sheeted the accused persons pleaded not guilty and claimed trial, whereupon, the prosecution produced Dr. Zohaib Shakeel (PW-1) who had medically examined Muhammad Waleed when he was injured, Dr. Mudassar Ali Sheikh (PW-2) conducted post-mortem examination of Muhammad Waleed (deceased); Ahsan Ullah complainant (PW-7) and Taimoor Hassan (PW-8) made statements about the ocular account, Muhammad Sohara Sub-Inspector (PW-11), Azhar Hussain Sub-Inspector (PW-12), Hafiz Ghulam Shabbir Sub-Inspector (PW-13), Mazhar Hussain Sub-Inspector (PW-14) and Muzammal Abbas Sub-Inspector (PW-15) made statements about investigation process, whereas, the remaining witnesses are more or less formal in nature and they made statements about their respective roles during the course of investigation. On close of prosecution evidence, the accused persons when examined under Section 342, Cr.P.C., denied the prosecution evidence, did not produce any defence nor opted to appear in the witness box as required by Section 340(2), Cr.P.C. and the trial ended in the terms detailed above.
4. The learned counsel for the accused/appellant argued that it was a false case, on the same set of evidence five of the co-accused stood acquitted by the learned trial Court and their acquittal remains unchallenged, the recovery in this case remains inconsequential and the motive also could not be established, thus, these loopholes make the entire prosecution case doubtful and as cumulative effect the accused/appellant is entitled to be acquitted.
5. On the other hand, the learned Additional Prosecutor General defended the impugned judgment by contending that it was a day light occurrence, the parties being neighour were well known to each other, therefore, neither there is any chance to misidentify or there exists the element of substitution as the complainant party had no previous motive to falsely implicate the accused/appellant for an offence which entails capital punishment. The learned counsel for the complainant added that natural ocular account is supported by medical evidence and acquittal of co-accused by no means benefits the accused/appellant, who has been assigned specific and fatal role of causing the death of Muhammad Waleed by pistol fire shot. The learned counsel thus defended the judgment of learned trial Court calling it as unexceptionable.
6. We have heard the arguments of learned counsel for the parties at considerable length and examined the record.
7. Before proceeding further in the matter, we would like to make clear the legal implication of the acquittal of co-accused of the accused/appellant. Though, it is trite law that on the principle of falsus in uno, falsus in omnibus, if the witnesses are disbelieved against one set of accused; their testimony cannot be accepted qua other accused; yet under the “principle of abundant caution”, an accused can be singled out from the other if the independent corroboration is available. In this respect, reliance is placed on case reported as “Muhammad Rafique alias Neela and another v. The State” (2020 SCMR 664), in which it has been held that:
“Doctrine of abundant caution is a silver lining in jurisprudence to ensure safe administration of criminal justice and application thereof did not necessarily imply destruction of entire volume of evidence, if otherwise found sufficient to sustain the centrality of the charge”.
Same view was taken by the Supreme Court of Pakistan in cases reported as “Muhammad Sharif and others versus The State and others” (2019 SCMR 1368), “Saleem Zada and others versus The State and others” (2019 SCMR 1309) and “Muhammad Bilal versus The State and others” (2019 SCMR 1362). Keeping in mind the case law as cited above, we feel no hesitation to hold that irrespective of acquittal of five of the co-accused, the case of present accused/appellant can be considered separately.
8. According to the prosecution case on 23.10.2018 at 4.00 p.m. in the sight of witnesses firing was being made by the accused persons in an under-construction house at Farooq-e-Azam road; the complainant along with his son Taimoor ran towards the shop of Muhammad Waleed, second son of the complainant; they were chased and on Farooq-e-Azam road, the accused/appellant made fire which hit the neck of Muhammad Waleed. The site plan Ex.PK clearly shows the residences of both the parties on Farooq-e-Azam road and it has come in the statement of Ahsan Ullah complainant (PW-7) that shop of Waleed (deceased) was at a distance of about two acres form his house. In this view of the matter when both the parties were in fact neigbour and were residents of same locality where the occurrence took place, the presence of witnesses at the site at such hours of the day can safely be termed as natural, especially when such venue has not been disputed or questioned by the defence at any stage either during investigation or during the course of trial. Further the occurrence took place at 4.00 p.m. i.e. broad day light, and the parties being well known to each other, there also remains no question of mistaken identity. Both the witnesses in their statements before the Court have been found consistent with regard to date, time, place of occurrence, the role of the accused/appellant. We are conscious of the fact that both the witnesses are closely related to the deceased, but mere relationship of these eye-witnesses with the deceased alone would not support the plea of the appellant that the testimonies of complainant and his witness are not worth believing. In matters of capital punishments, the accused would not stand absolved by making a mere allegation, rather would be required to bring on record that there had been such a dispute/enmity which could be believed to have motivated the “natural witnesses” in involving the innocent at the cost of escape of “real culprits”. It may be mentioned here that where the natural witnesses are in blood-relation then normally the possibility of substitution becomes rare. Thus, no material has been brought on record by the appellant to justify that the deep rooted enmity existed earlier between the parties, which could have been reason for false involvement of the appellant in this case. In this context, the reliance can safely be placed on the case of “Lal Khan v. State” (2006 SCMR 1846) wherein at Rel. P-1854 it is held as:
“The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not.
Both the witnesses were cross-examined by the defence at considerable length but they stood firm in their stance and reiterated the facts by toeing each other on almost all material aspects of the case and the defence failed to elicit anything favourable to it or damaging to the prosecution.
9. The presence of witnesses at the crime scene, having witnessed the occurrence and deposed truth get support from the statement of Dr. Zohaib Shakeel (PW-1) according to whom on 23.10.2018 at 05.00 p.m. he medically examined Muhammad Waleed injured at Trauma Centre, Hafizabad and observed two injuries, i.e. one firearm wound on posterior side of left ear lobe and second an abrasion over right nostril. Such prompt lodgment/transmission of the injured in the Trauma Centre Hafizabad just within one hour of the occurrence and the locale of injuries sufficiently establish the presence of witnesses at the place of occurrence at the relevant time. Muhammad Waleed in critical condition was referred to General Hospital, Lahore where he died on 25.10.2018 and his post-mortem was conducted by Dr. Mudassar Ali Sheikh (PW-2) who observed the fire arm injury as the cause of death, as the bullet had ruptured the great vessels of neck and caused massive bleeding leading to sever hypovolemic shock causing death. The above details coming through the statement of doctor relating to locale, dimension, nature of injury, the kind of weapon used and the time span between injury and death, as also between death and post-mortem fully correlate with the prosecution case.
10. As regards recoveries, Muhammad Sohara Sub-Inspector (PW-11) on 24.10.2018 at the time of visit to the place of occurrence collected two crime empties of 9MM, one missed bullet and the blood, which were submitted in the office of PFSA on 25.10.2018 by Azhar Hussain Sub-Inspector (PW-12). Subsequently, on 12.11.2018 the accused/appellant a was arrested and on his lead on 21.11.2018 a pistol 9MM was recovered from his residential room, which was submitted in the office of PFSA on 29.11.2018 by Hafiz Ghulam Shabir Sub-Inspector (PW-13) but the PFSA report Ex.PZ has been received about working condition of pistol but non-matching of crime empties. Apart from all above, recovery may be one of the corroborative circumstances, but this by itself is not the sole indicator of the culprit and once the most important piece of evidence i.e. the ocular account has been disbelieved, this corroborative evidence will remain fruitless for the prosecution and is not helpful to the prosecution to stretch the criminal liability against the appellant. Reliance is placed on judgment reported as “Awais and others vs. The State and others” (2019 YLR 1046).
11. It is correct that the prosecution had set up a specific motive that occurrence was result of reconstruction of house by the complainant and Mst. Mahmooda Bibi was posed as the only troublemaker who earlier had restrained the complainant and also extended threats of consequences, but said Mst. Mahmooda Bibi was acquitted by the learned trial Court and her acquittal has not been challenged by the prosecution and no other oral or documentary proof has been brought on the record by the prosecution to establish that if at all it was complainant’s own land where he was reconstructing the house and such construction was not intrusion in the land of the accused side, then why the accused party could carry such a grudge which culminated into death of an innocent person. Thus, we are least impressed with the prosecution’s story about motive, rather it speaks about something else and what actually formed the basis for such an unfortunate occurrence, remains shrouded in mystery. Consequently, we hold that the prosecution has failed to establish the motive part of the occurrence. Law is settled by now that if prosecution asserts the motive but fails to prove the same, then such failure on the part of the prosecution would give rise to mitigation for the purpose of reconsidering the quantum of sentence passed by the trial Court. Reference in this respect may be made to the Judgment of Supreme Court of Pakistan in the case of Mst. Nazia Anwar v. The State and others” (2018 SCMR 911).
12. For what has been discussed above, this Court is convinced that though recovery remains inconsequential and the motive could not be established, otherwise, the prosecution succeeded in establishing its case against the accused/appellant by producing natural and convincing ocular account which stands fully supported by medical evidence. Consequently, the conviction of the accused/appellant under Section 302(b), PPC being unexceptionable, stands upheld. However, while considering the quantum of sentence, we will like to refer the cases “Muhammad Riaz and another v. The State and another” (2007 SCMR 1413) and “Muhammad Sharif v. The State” (PLD 2009 Supreme Court 709), wherein, the Supreme Court of Pakistan has consistently held that the imprisonment for life is also a legal sentence in the case of Section 302(b), P.P.C. As discussed supra, here in the instant case, motive could not be proved and recovery is of no use to the prosecution, which gives rise to create mitigation to reconsider the quantum of sentence recorded against the accused/appellant. As such, while sustaining the conviction under said section, the sentence of death is altered to imprisonment for life, whereas, the compensation and imprisonment in default thereof, as ordered by the learned trial Court shall remain intact. The benefit of Section 382-B, Cr.P.C. is extended. The record of the learned trial Court be sent back immediately and case property, if any, shall be disposed of in accordance with law.
Murder Reference No. 263 of 2019 is answered in the negative.
Sentence of death is not confirmed.
(A.A.K.) Order accordingly
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