PLJ 2024 Cr.C. (Note) 292
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan, J.
SHAHID IQBAL, etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 680 of 2016, heard on 23.9.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 337-F(iii)--Conviction and sentence--Challenge to--Offence of hurt--Motive--Previous litigation--Medical evidence--Eye-witness fully implicated appellant to the sole of firing--Medical evidence has fully supported the ocular account furnished by the abovementioned eye-witnesses--If evidence of motive and recovery is excluded from consideration, even then prosecution has proved its case beyond shadow of doubt against the appellant through the evidence discussed earlier, who has rightly been convicted and sentenced by the trial Court through the impugned judgment against the murder of deceased, which are maintained. Appellant is present on bail, he is directed to be taken into custody and be
sent to jail to serve out his remaining sentences. Benefit of Section 382-B, Cr.P.C. is given to appellant. This criminal appeal to the extent of appellant, having no merits is hereby dismissed.
[Para 12 & 16] B & D
Acquittal--
----Fatal for prosecution-- Acquittal of co-accused with different role is also not fatal to the prosecution case. [Para 11] A
Negative Report of PFSA--
----Recovery of pistol on pointing out of the appellant in presence of negative report of PFSA is inconsequential but not fatal to the prosecution case. [Para 14] C
2021 SCMR 104.
M/s. Aneela Khursheed, Javed Iqbal Bhatti, Usama Masood Dogar, Sana Ullah Khan Tareen and Malik Khalil Ahmad Mamra, Advocates for Appellants.
Mr. Waheed Rafique, DDPP for State/Complainant.
Date of hearing: 23.9.2024.
Judgment
Appellants (Shahid Iqbal and Muhammad Jawad) along with their co-accused (since acquitted) have been tried by the trial Court in case FIR No. 230 dated 03.08.2011 offences under Sections 302, 324, 109, 148 & 149, PPC Police Station Shah Kot (Chichawatni), District Sahiwal, and was convicted and sentenced vide judgment dated 18.08.2016 as under:
Muhammad Jawad (appellant)
Under Section 337-F(iii), PPC Sentenced to rigorous imprisonment for three years as Ta’zir and to pay Daman
Rs. 30,000/- as lump sum and in case of failure, he was ordered to kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until Daman amount is paid in full or may be released on bail if he furnishes security/surety equal to amount of Daman to the satisfaction of the trial Court.
He was also ordered to pay
Rs. 5000/- to the victim under Section 544-A, Cr.P.C. and in default whereof to further undergo simple imprisonment for one month. Benefit of Section 382-B, Cr.P.C. was extended to him.
Shahid Iqbal (appellant)
Under Section 302(b), PPC Sentenced to imprisonment for life as Taz’ir for committing Qatl-e-Amd of Binyamin (deceased) with compensation of Rs 200,000/- payable to legal heirs of the decensed under Section 544-A, Cr.P.C. and in default whereof to further undergo simple imprisonment for six months.
Beneift of Section 382-B, Cr.P.C. was extended to him.
2. Heard. Record perused.
3. Binyamin and Muhammad Yaseen were done to death whereas, Hasnain Iqbal PW-10 and Aasia Bibi (not PW) sustained injuries during the occurrence took place on the passage on 03.08.2011 at 05:45 p.m. whereafter FIR was lodged on the same evening at 06:50 p.m. on the statement of Muhammad Hussain PW-9 who while appearing before the trial Court stated in his statement as under:-
“Binyamin and Yasin were murdered in this case. Both were my step brothers. I know the accused persons in this FIR. They are resident of my village. Shahid Iqbal, Muhammad Riaz, Zahid, Jawad, Mumtaaz, Ahmed yar, Ijaz, Muhammad Hussain, Fiyaz, Sajid, Hameed, Mumtaaz son of Noor Muhammad, Qamar Zamaan and two unknown accused persons.
On 03.08.2011, at about 05:45 p.m, Muhammad Ameen, Binyamin and Muhammad Yousaf were fetching commodities from the shop of one Shahdha. I was present at the pond of water along with my animals. I heard noise of fire and came near the house of Machia son of Ameer. On other side Ameen, Binyamin and Yousaf were coming. In my view, the accused mentioned above came there with weapons. Shahid Iqbal accused raised Lalkara that today Binyamin should not be spared and he fired with his rifle which landed on left side of the chest of Binyamin who fell down. Ameer and Yousuf P.Ws hided themselves behind the wall of house of Yousuf Machia. On hearing the report of firing, Yasin, Asiya and Husnain Iqbal also reached at the spot. Then Riaz accused fired with his rifle at Muhammad Yasin which landed on back of his neck and Yasin fell down on the ground. Then Zahid accused fired with his rifle which landed on left thigh of Mst. Asiya Bibi.
Jawad accused fired with his rifle which landed on left ankle of Husnain Iqbal. Remaining accused made firing and raised Lalkaras at the place of occurrence. Binyamin and Yasin succumbed to the injuries at the spot. Due to the firing of accused persons, one Sumaira Bibi also received injury.
The motive behind this occurrence was that there was enmity between us due to to previous litigation.
On 02.08.2011, at about evening time, Sultan, Zafar Iqbal and Jahangir accused were present in the shop of Tariq Ansari where the accused persons named above were also present. Sultan, Zafar Iqbal and Jahangir hatched conspiracy to the accused persons named above. They were asking the co-accused that they should murder Binyamin and Yasin and that they will face all the consequence of case. Haroon Iqbal and Ali Shair heard the conspiracy when they were outside the shop of Muhammad Tariq.
At 06:15 p.m. police arrived at the place occurrence where I submitted written application Exh. PS to the police; the same was read over to me and I marked thumb impression on Exh.PS.”
4. Hasnain Iqbal PW-10 being injured eye-witness while appearing before the trial has reiterated the same story.
5. Appellant (Muhammad Jawad) has not been attributed any injury on the persons of Binyamin and Muhammad Yasin (deceased) and has not been convicted against their murder, even in common intention. He has only been convicted against the injury of Husnain Iqbal/injuredPW-10 reproduced above.
6. At the very outset, learned counsel for the appellants do not press the conviction of Muhammad Jawad (appellant) in offence under Section 337-F(iii), PPC with the request to reduce his sentence of imprisonment in this offence.
7. Considering the peculiar facts and circumstances of this case and agony of the trial faced by the appellant (Muhammad Jawad) since registration of FIR i.e. 03.08.2011, while maintaining his conviction in offence under Section 337-F(iii), PPC, his sentence of imprisonment in this offence is reduced from three years RI to that already undergone by him. Daman Rs. 30,000/- , is maintained with a direction to appellant (Muhammad Jawad) to deposit the same in the trial Court in equal monthly instalments within a period of six months starting from 10th October, 2024 in view of Section 337-Y, PPC failing which he (Muhammad Jawad, appellant) shall be arrested, kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until Daman amount i.e. Rs. 30,000/- is paid in full. Hasnain Iqbal/injured PW-10/his legal heirs would be at liberty to receive the same from the trial Court on its realization in accordance with law. Compensation under Section 544-A, Cr.P.C. i.e. Rs. 5000/- is also maintained but sentence in default thereof is reduced from one month SI to 19-days SI. Benefit of Section 382-B, Cr.P.C. is given to the appellant (Muhammad Jawad) who is present on bail, his surety bonds shall remain intact during above said period.
8. With above said modification in the impugned judgment, instant criminal appeal to the extent of Muhammad Jawad (appellant) is disposed of as such.
9. Coming to the case of Shahid Iqbal (appellant), both the abovementioned eye-witnesses have fully implicated him with the role of firing on the person of Binyamin (deceased). They 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.
10. 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.
11. Acquittal of co-accused with different role is also not fatal to the prosecution case. (2020 SCMR 1414) Javed Ishfaq vs. The State”.
12. Medical evidence has been furnished by Dr. Shahid Rafiq PW-13, who during post-mortem examination on the dead body of Binyamin (deceased) observed firearm injuries on his person attributed to Shahid Iqbal (appellant) which were ante-mortem in nature and were sufficient to cause death in ordinary course of nature, therefore, medical evidence has fully supported the ocular account furnished by the abovementioned eye-witnesses. No need to discuss the injuries of Muhammad Yasin (deceased), Hasnain Iqbal/injured PW-10 and Asiya Bibi (not PW), not attributed to the appellant (shahid Iqbal).
13. Motive of the occurrence was previous litigation between the parties but its detail has not been disclosed which is not believable and has rightly been discarded by the trial Court in para 26 of the impugned judgment.
14. Recovery of pistol on pointing out of the appellant in presence of negative report of PFSA is inconsequential but not fatal to the prosecution case” (2021 SCMR 104) “Akbar Ali and others vs. The State and others.
15. Appellant (Shahid Iqbal) while denying his involvement in the present case in his statement recorded under Section 342, Cr.P.C. stated that he is innocent and has falsely been involved in this case. He 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
16. In view of above, if evidence of motive and recovery is excluded from consideration, even then prosecution has proved its case beyond shadow of doubt against the appellant (Shahid Iqbal) through the evidence discussed earlier, who has rightly been convicted and sentenced by the trial Court through the impugned judgment against the murder of deceased (Binyamin), which are maintained. Appellant (Shahid Iqbal) is present on bail, he is directed to be taken into custody and be sent to jail to serve out his remaining sentences. Benefit of Section 382-B, Cr.P.C. is given to appellant. This criminal appeal to the extent of Shahid Iqbal (appellant), having no merits is hereby dismissed.
17. Before parting with this judgment, it is observed that case of co-accused Riaz, Jehangir, Sultan, Mumtaz s/o Bashir and Qamar Zaman (since POs) shall be decided by the trial Court on its own merits without being influenced from this judgment on their arrest.
(A.A.K.) Appeal dismissed
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