PLJ 2024 Cr.C. (Note) 251
[Lahore High Court, Rawalpindi Bench]
Present: Sadaqat Ali Khan, J.
versus
STATE--Respondent
Crl. A. No. 827 of 2023, decided on 4.6.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Medical evidence--Motive of occurrence--Ocular account--During interrogation remained absconder--Motive of occurrence was a quarrel took place few days prior to present occurrence between appellant and deceased but its detail has not been disclosed by prosecution which has rightly been discarded by trial Court through impugned judgment--Nothing was recovered from appellant during interrogation obviously reason behind it is that he remained absconder for more than 11-years--In these circumstances, non-recovery of weapon is also not fatal to prosecution--Appellant while denying his involvement in present case in his statement recorded u/S. 342, Cr.P.C. stated that he has falsely been involved in this case and some unknown accused has committed murder of deceased--Appellant has neither opted to appear under Section 340(2), Cr.P.C. nor produced any defence evidence in support of his defence plea which has rightly been discarded by trial Court with sufficient reasons--If evidence of motive is excluded from consideration, even then prosecution has proved its case beyond shadow of doubt against appellant who has rightly been convicted and sentenced by trial Court through impugned/ judgment which are maintained.
[Para 9, 11 & 13] B, C, D & E
Acquittal--
----The acquittal of co-accused with different role is also not fatal to prosecution case. [Para 7] A
2020 SCMR 1414.
Syed Ghulam Mustafa and Mr. Muhammad Raqeeb, Advocates for Appellant.
Mr. Naveed Ahmad Warraich, DDPP with Nouman for State.
Complainant in person.
Date of hearing: 4.6.2024.
Judgment
Appellant (Syed Nasir Hameed Sherazi alias Pappi Shah) has been tried by the trial Court in case FIR No. 652 dated 05.09.2010 offences under Sections 302/34, PPC Police Station Waris Khan, District Rawalpindi, and was convicted and sentenced vide judgement dated 13.07.2023 as under:
Syed Nasir Hameed Sherazi alias Pappi Shah (appellant)
u/S. 302(b), PPC Sentenced to imprisonment for life as Ta’zir for committing Qatli-Amd of Hamid Hameed (deceased) with compensation of Rs. 300,000/- payable to the legal heirs of deceased u/S. 544-A, Cr.P.C., recoverable as arrears of land revenue and in default whereof to further undergo simple imprisonment for 6 months.
Benefit of Section 382-B, Cr.P.C. was extended in his favour.
2. Heard. Record perused.
3. Hamid Hameed sustained fire-arm injuries in the street on 05.09.2010 at 12.25 noon whereafter was taken to hospital where his medical examination was conducted, then he succumbed to the injuries. Initially FIR was lodged under Section 324, PPC on the statement of his father Muhammad Taj PW-8 on the same day i.e. 5.9.2010 at 1.45 p.m. on the death of Hamid Hameed (deeessed) offence under Section 324, PPC was deleted and offence uhder Section 302, PPC has been added.
4. Muhammad Taj PW-8 and his son Sajid Hameed PW-9 while claiming themselves to be eye-witnesses of the occurrence stated in their statements before the trial Court that on 5.9.2010 at about 12.25 noon they along with Hamid Hameed (deceased) were standing near their house in Ghousia Street, meanwhile, appellant (Syed Naisr Hameed Sherazi alias Pappi Shah) armed with 30-bore pistol came there and started abusing to Hamid Hameed (deceased) and while raising lalkara asked him (deceased) that he would teach him a lesson regarding previous quarrel and made fire shot with his pistol 30-bore which hit on back side of his abdomen making its exit from front of abdominal side, second fire shot made by him went ineffective. Appellant (Syed Nasir Hameed Sherazi alias Pappi Shah) fled away on motorcycle driven by Aamar Shah alias Mithu Shah (co-aceused since acquitted). After the occurrence, Hamid Hameed (deceased/the then injured) was shifted to Benazir Bhutto Hospital, Rawalpindi but after sometime he succumbed to the injuries in the hospital.
5. Both the eye-witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They have corroborated each other on all material aspects of the case. They have established their presence at the time of occurrence at the place of occurrence with their stated reasons. Their evidence is straightforward, trustworthy and confidence inspiring and cannot be discarded mere on probabilities.
6. The discrepancies pointed out by the learned counsel for the appellant in the statements of the PWs are minor and general in nature, occur in every case when witnesses (who are human beings) are cross-examined after a long time of the occurrence as in present case, are not fatal to the prosecution case.
7. The acquittal of co-accused with different role is also not fatal to the prosecution case (2020 SCMR 1414 “Javed Ishfaq vs. The State”).
8. Medical evidence has been furnished by Zafar Malik
PW-4 who on arrival of Hamid Hameed (deceased/the then injured) in the hospital conducted his medical examination and observed fire-arm injuries on his person attributed to the appellant, on his death, Dr. Muhammad Ilyas (since dead) conducted post-mortem examination on his dead body, post-mortem report shows that he (Dr. Muhammad Ilyas) had also observed fire-arm injuries on the person of the deceased during post-mortem examination attributed to the appellant which were ante-mortem in nature and were sufficient to cause death in ordinary course of nature. Due to death of Dr. Muhammad Ilyas, Dr. Irfan Khaliji PW-6 appeared in secondary evidence and identified handwritings and signatures of Dr. Muhammad Ilyas on relevant documents, therefore, medical evidence has fully supported the ocular account furnished by the above mentioned eye-witnesses.
9. Motive of the occurrence was a quarrel took place few days prior to the present occurrence between the appellant and the deceased but its detail has not been disclosed by the prosecution which has rightly been discarded by the trial Court through the impugned judgment.
10. Appellant was declared proclaimed offender due to his absconsion and was arrested on 25.08.2021 after more than 11-years of registration of FIR (05.09.2010) but has failed to give any plausible explanation for such long wilful absconsion which is also considered a corroborative piece of evidence of ocular account against him. (2023 SCMR 1568) “Maskeen Ullah and another vs. The State and another”, (2023 SCMR 478) “Nasir Ahmed vs. The State” and (2022 SCMR 1931) “Shamsher Ahmad and another vs. The State and others.”
11. Nothing was recovered from the appellant during interrogation obviously the reason behind it is that he remained absconder for more than 11-years. In these circumstances, non-recovery of weapon is also not fatal to the prosecution.
12. Appellant while denying his involvement in the present case in his statement recorded u/S. 342, Cr.P.C. stated that he has falsely been involved in this case and some unknown accused has committed the murder of the deceased. Appellant has neither opted to appear under Section 340(2), Cr.P.C. nor produced any defence evidence in support of his defence plea which has rightly been discarded by the learned trial Court with sufficient reasons.
13. In view of above, if evidence of motive is excluded from consideration, even then prosecution has proved its case beyond shadow of doubt against appellant (Syed Nasir Hameed Sherazi alias Pappi Shah) who has rightly been convicted and sentenced by the trial Court through the impugned/judgment which are maintained. Benefit of Section 382-B, Cr.P.C. is given to the appellant. This criminal appeal filed by the appellant, having no merits is hereby dismissed.
(A.A.K.) Appeal dismissed
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