PLJ 2024 Cr.C. (Note) 275
[Peshawar High Court, Peshawar]
Present: Ishtiaq Ibrahim and Sahibzada Asadullah, JJ.
versus
STATE and another--Respondents
Crl. A. No. 879-P of 2023 with M.R. No. 8-P of 2023,
decided on 6.12.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324 & 34--Conviction and sentence--Challenge to--Appreciation of evidence--Obligation to reconsider and to reappreciate evidence--Miscarriage of justice--True that when relations are so close, then factum of substitution would hardly arise, but this by itself would not relax Courts of law while determining guilt of accused, as under all circumstances both, prosecution and Courts of law are burdened with boundened duty to dig out truth and to appreciate collected evidence, without having been influenced from relationship of parties, if relationship would prevail then there is apprehension of miscarriage of justice, which is neither permitted nor will advance purpose. [Para 6] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324 & 34--Conviction and sentence--Challenge to--Appreciation of evidence--Question of--Whether witnesses were present on spot at time of incident--Determination--Essential to go through statement of witness--Escaping unhurt of witnesses--Validity--When there was no pre-planning for killing deceased and all others, present on spot, so escaping persuade absence of witnesses from spot at time of incident and would hardly persuade that complainant was not present on spot--When matter was promptly reported and when complainant shifted dead bodies of deceased to hospital within shortest possible time, then no ambiguity is left that incident occurred at stated place and in stated manner. [Para 8 & 9] B & C
Identification of Dead Body--
----Neither complainant nor eyewitness was identifiers of dead bodies, but that in no way would exclude their presence and that in no way would convince regarding innocence of accused. [Para 9] D
Interested witness--
----Witnesses were tested and credibility--When witnesses remained consistent and when no malafide was attributed to witnesses, it is credibility and truthfulness of witnesses which must steer wheel and not witnesses of identification--There was no previous blood feud between them, so High Court was confident in holding that witnesses succeeded in qualifying test and that they succeeded in bringing home guilt against accused. [Para 9] E & F
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324 & 34--Conviction and sentence--Challenge to--Appreciation of evidence--Minor discrepancies--Question of--Whether incident occurred in made, manner and at stated time--Determination--Prosecution succeeded in connecting appellant with tragic deaths of deceased--As admittedly no contradictions were found and no minor discrepancies could be noted, so it is consistency between witnesses which has brought trial Court to hold accused responsible for death of deceased and this is consistency between their statements which has persuaded High Court regarding involvement of accused in episode--Even if minor discrepancies could be noted, same would hardly be determining factor and at most that would add to responsibilities of Courts of law to apply extra care, while determining fate of accused--As witnesses remained consistent on material aspects of case, so minor discrepancies would hardly be a ground for dislodging proved case of prosecution--Contradictions in statements could be fatal but discrepancies would in no way would help accused and would damage prosecution case. [Para 10] G
Ocular Account--
----Contradictory medical report--Tragic incident--The tragic incident was outcome of participation of both accused and dimension of injuries on dead bodies of deceased substantiate view of High Court--Medical evidence is in harmony with ocular account and despite efforts no conflict could be noted--When medical evidence is in harmony with ocular account and when ocular account is confidence inspiring, then nothing is left for accused to convince in a different manner--When such piece of evidence is taken into consideration with statements of witnesses, then high Court was confident in holding that recovered weapon was used by accused in tragic incident. [Para 11 & 12] H & I
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324 & 34--Conviction and sentence--Challenge to--Quantum of sentence--Tragic incident--No ambiguity is left regarding motive--Motive--There is no cavil with proposition that weakness or absence of motive would hardly be a ground for acquitting an accused, but in most of cases it plays a determining role to determine quantum of sentence, to be awarded--As admittedly, there was an altercation between parties before tragic incident and as admittedly both parties participated in hot discussion, which prompted accused to kill--Accused did not visit spot with only mind to kill, had that been so, then on reaching to spot they would have fired, but when parties altercated and when parties exchanged harsh words, then High Court is inclined in holding that it was loss of temperament which led to unfortunate incident and when so then same can be taken into consideration for determining quantum of sentence to be awarded and for determining reasonableness of awarded sentence--As witnesses remained consistent that accused arrived to spot duly armed, parties altercated with each other and accused used abusive language, so when such was state of affairs, then High Court is inclined to hold that not only accused but deceased and complainant were at fault--What benefit accused can claim is only in respect of awarded sentence and it would be a correct approach, if instead accused was convicted and sentenced to life imprisonment--Appeal was partially allowed.
[Para 13 & 14] J, K & L
Mr. Shabbir Hussain Gigyani, Advocate for Appellant
Mr. M. Nisar Khan, AAG for State.
Date of hearing: 6.12.2023.
Judgment
Sahibzada Asadullah, J.--This jail criminal appeal is directed against the judgment dated 24.04.2023, passed by the learned Additional Sessions Judge-Topi, Swabi, whereby the appellant has been convicted and sentenced in case FIR No. 282, dated 28.04.2021, registered u/Ss. 302/324/34 PPC, Police Station Topi. The operative para of the judgment is reproduced herein below:
“He is accordingly convicted u/S. 302(b) PPC as Tazir and sentenced to Death On Two Counts. He be hanged from neck till he dies. The execution of the death penalty shall, however, be subject to confirmation by the august Peshawar High Court, Peshawar. He is also sentenced to pay compensation amounting to Rs. 1,000,000/- (One Million) to other legal heirs of each deceased under section 544-A, Cr.P.C and in case of default in payment of compensation, the same shall be recovered as arrears of land revenue from the person and estate of accused facing trial and if the same were not recoverable the accused facing trial shall serve simple imprisonment of a period of six months.
The accused facing trial is convicted u/S. 324 PPC and is sentenced to rigorous imprisonment for Seven-Year with a fine of Rs. 100,000/- and in default of payment of fine, the convict shall further suffer 02-months simple imprisonment.
Benefits of section 382-B Cr.P.C is extended to the accused/convict. The sentences shall run concurrently ....”
2. Brief & laconic facts, as divulges from the FIR, are that on 28.04.2021, complainant and his brothers, namely, Wilayat Khan and Imroz Khan, along with his nephew, Afaq Ali, had gone to their agricultural land, situated at Pula Mustarika, for looking after their trees, when, in the meantime, Hassan Khan & his nephew, namely, Shakir, came, duly armed, started altercation and, thereafter, both the accused, Hassan Khan & Shakir, opened firing with their respective arms, due to which Wilayat & Imroz got hit and died on the spot, while the complainant and his nephew remained unhurt. Motive was disclosed as dispute over division of trees and partition of landed property. The matter was reported by the complainant, which was recorded in shape of Murasilla and, accordingly, the above referred FIR was registered.
3. After arrest of the accused Hassan Khan on 14.04.2023, the challan was submitted before the Court of competent jurisdiction, whereas proceedings u/S. 512 Cr.P.C was initiated against the absconding co-accused, Shakir. The accused was summoned, who, on his attendance, were provided copies of relevant documents u/S. 265-C Cr.P.C, and, therefore, he was charge sheeted, to which he pleaded not guilty and claimed trial. After commencement of the trial, the prosecution produced as many as twelve (12) witnesses. On conclusion of the trial, the learned Trial Court convicted the appellant in supra manner.
4. The learned counsel for the parties were heard at length alongwith learned AAG and with their valuable assistance the record was scanned through.
5. The tragic incident claimed the lives of two real brother; the dead bodies were shifted to the hospital where the matter was reported by the complainant. After the report was made, the relevant police official prepared the injury sheets and inquest reports and thereafter the dead bodies of the deceased were sent for postmortem examination. The investigating officer, after collecting copy of FIR, visited the spot and on pointation of the complainant, prepared the site plan. During spot inspection, the investigating officer collected blood stained earth from the respective places of the deceased and one empty of 12 bore from the place of the appellant, whereas, four empties of 7.62 bore from the place of the absconding co-accused. It is pertinent to mention that on 28.04.2021, the local police succeeded in arrest of the appellant from his house and from his personal possession, a repeater shot gun along with two live cartridges was recovered. The recovered gun alongwith the collected empties was sent to the firearms expert a report whereof was received in positive, whereas, in respect of the empties, collected from the place of the co-accused, a report was received telling that the same were fired from one weapon. The accused faced the trial and on conclusion of the trial was convicted and sentenced vide the impugned judgment.
6. The matter was thrashed out by the learned Trial Court and it was after appreciation of the evidence on file that the learned Trial Court came to a conclusion that it was the appellant who was responsible for the death of the deceased and for that matter the appellant was awarded death sentence. The learned Trial Judge took into consideration the material aspects of the case and also applied his judicial mind to the evidence on file, while handing down the impugned judgment. As in this particular case, the appellant is the real brother of both the deceased and that the absconding co-accused is their nephew, so, the learned Trial Court while determining the fate of the appellant also took into consideration the inter-se relationship between the parties and also took into consideration the manner in which the report was made and the appellant was arrested. There is no denial to the fact that on one hand two real brothers lost their lives whereas on the other a real brother alongwith his son is charged for their murder, so, under all circumstances, this Court sees it its obligation to re-consider and to re-appreciate the evidence on file, so that to avoid miscarriage of justice. True that when the relations are so close, then the factum of substitution would hardly arise, but this by itself would not relax the Courts of law while determining the guilt of the accused, as under all circumstances both, the prosecution and the Courts of law are burdened with the boundened duty to dig out the truth and to appreciate the collected evidence, without having been influenced from the relationship of the parties, if the relationship would prevail then there is apprehension of miscarriage of justice, which is neither permitted nor will advance the purpose.
7. The points for determination before this Court are; as to whether the incident occurred in the mode, manner and at the stated time; as to whether the witnesses were present on the spot at the time of incident and, thereafter, at the time of report; as to whether the medical evidence supports the case of the prosecution and as to whether the prosecution succeeded in bringing home guilt against the appellant.
8. As, admittedly, the unfortunate incident occurred in the landed property of the parties, that too, because of a dispute over the trees and the record further tells that the investigating officer collected blood stained earth from the respective places of the deceased and also collected crime empties therefrom. As the spot is not disputed and that the respective recoveries from the spot by itself are sufficient to tell, that the unfortunate incident occurred at that very place. We are to see the presence of the witnesses on the spot and their presence at the time of report, so for that particular purpose, we deem it essential to go through the statements of the witnesses. The complainant was produced as PW-8 and the eyewitness as PW-9. The complainant explained the circumstances in which they visited the spot and also disclosed the time at which the appellant and the absconding co-accused, attracted to the spot and after hot discussion resorted to firing. The complainant further disclosed the motive which turned to be the cause of killing and he also explained that in respect of the trees, a jirga had already been convened which resolved the matter between the parties and that in that respect an agreement deed was duly signed and the same was produced before the investigating officer and also before the learned Trial Court. The eyewitness also explained the circumstances in which the unfortunate incident occurred and he also supported the report of the complainant and explained the manner in which the dead bodies were shifted to the hospital. The witnesses were examined on material aspects of the case and they went through the test of searching cross examination, but they remained consistent on the material aspects of the case and the defense could not succeed in extracting anything detrimental to the prosecution from their mouth. The witnesses were examined regarding the time they left their houses, regarding the time at which the accused attracted to the spot, regarding the manner in which hot talks were exchanged and regarding the manner in which the accused fired at the deceased. As the trees were the subject of dispute and the same were planted in the fields where the unfortunate incident occurred, so, the presence of all the brothers and their sons was natural. It is on the record that when the accused learnt about the presence of the complainant, the eyewitness and the deceased in the spot field, they went after them duly armed. As the parties had interest in the trees, so both the parties visited the spot with the sole purpose, maybe there was nothing in the mind of the appellant and the other, to kill, rather it can be gathered from the record that the purpose was to restrain the complainant side from cutting the trees. It is evident from the record and so admitted by the complainant, that when the accused reached to the spot they used abusive language, exchanged harsh words and thereafter fired at the deceased, the complainant and the eyewitness. When this portion of the statements of the witnesses is taken into consideration, it confirms that while leaving their houses the accused were not with a pre-determined mind to go and kill, but the purpose was to restrain the other side from claiming the trees and it was during hot discussion that the temperaments of the accused rose high and they started firing at the witnesses and the deceased, where the unfortunate deceased fell victims to the firing and the eyewitnesses escaped unhurt. The learned counsel for the appellant submitted, that when the intention was to kill and that when the accused had weapons in their possession, then the escaping unhurt of the witnesses, is a circumstance which does not appeal to a prudent mind and that the same belies the stance of the complainant. we are not satisfied with what the learned counsel for the appellant submitted, as admittedly the deceased and the complainant were the brothers of the accused and uncles of the absconding co-accused, so there was no intention to go and kill, but it was during altercation which prompted the accused to fire and as such the deceased were hit and died on the spot. When there was no pre-planning for killing the deceased and all others, present on the spot, so the escaping unhurt of the complainant and the eye-witness would hardly persuade the absence of the witnesses from the spot at the time of incident and would hardly persuade that the complainant was not present on the spot. As it was the altercation which prompted the accused and it is uncertain that whether all present on the spot took participation in altercation and that the complainant and the eyewitness remained more active in the same. When there is silence on this aspect of the case, then in our understanding may be the altercation took place between the accused and the deceased and that was the reason that instead of the complainant and the eyewitness, the deceased were fired at. As in this particular case the parties are closely related, so the substitution in the instant case is the rarest phenomenon, as a real brother would not let off the actual killer and would substitute his real brother and nephew for the killing of his brothers. As is held in case titled “Aqil vs. The State” (2023 SCMR 831), which reads as:
“A witness who is a natural one and is the only possible eye-witness in the circumstances of a case cannot be said to be “interested”. In the present case, the eye-witnesses, one of whom was an injured eye-witness have spoken consistently and cogently in describing the manner of commission of the crime in detail. The testimony of an injured eye-witness carries more evidentiary value. The Court is not persuaded that their evidence is to be discarded merely because they happen to be related witnesses. Learned counsel for the petitioner could not point out any plausible reason as to why the complainant has falsely involved the petitioner in the present case and let off the real culprit, who has committed murder of her mother and sister. Substitution in such like cases is a rare phenomenon.”
9. The investigating officer prepared the site plan on the pointation of the complainant and during spot inspection not only blood stained earth was collected but the crime empties as well, so in our understanding the spot is fully proved and so the incident. When the matter was promptly reported and when the complainant shifted the dead bodies of the deceased to the hospital within the shortest possible time, then no ambiguity is left that the incident occurred at the stated place and in the stated manner. It is interesting to note that in respect of the dispute the parties were on bad terms and so for the same the door of the District Reconciliation Committee was knocked at and that for that matter detailed discussion was made which led into a reconciliation and for the same a compromise deed was prepared and the same was taken into possession, placed on file and duly exhibited during the trial. When the subject of dispute is the landed property and the trees in the property, and when several rounds of litigation took place between the parties, so in our understanding nothing ambiguous is left for fresh determination, rather an inference can be drawn that the unfortunate incident is the outcome of the same. True that neither the complainant nor the eyewitness is the identifiers of the dead bodies, but that in no way would exclude their presence and that in no way would convince regarding the innocence of the appellant. As admittedly, the place of incident is situated within the village of the parties and as admittedly the fields were belonging to the parties and so the trees, so their presence on the spot at the stated time is natural and even their presence in the hospital after the incident and at the time of report. As the dead bodies were shifted from the spot to the hospital, so the relatives attracted to the spot, they helped in the shifting of the dead bodies of the deceased to the hospital and that the relatives identified the dead bodies of the deceased before the police at the time of report and before the doctor at the time of postmortem examination. As admittedly the unfortunate incident claimed the lives of two real brothers who were the brothers of the complainant and out of the deceased one was the father of the eyewitness, so in such a state of panic and shock it was not necessary that the witnesses must have identified the dead bodies before the police and before the doctor. As the witnesses of identification are the most informal witnesses, so their status would hardly be the determining factor and their status would not help out the accused from the responsibility. As in this particular case the witnesses were tested and so their credibility, but nothing to the favour of the appellant could be brought, from them, on record. When the witnesses remained consistent and when no malafide was attributed to the witnesses, then in our understanding it is the credibility and truthfulness of the witnesses which must steer the wheel and not the witnesses of identification. As admittedly the parties are brother’s inter-se and as admittedly there was no previous blood feud between them, so this Court is confident in holding that the witnesses succeeded in qualifying the test and that they succeeded in bringing home guilt against the appellant.
10. The learned counsel for the appellant wanted to convince regarding discrepancies in the statements of the witnesses, but we are not convinced as despite efforts we could not come across any material contradictions and even no discrepancies could be noted in their statements. Not only the eyewitnesses but the scribe to whom the report was made and the investigating officer also remained consistent regarding the manner in which the spot was inspected, the recoveries were made and regarding the manner in which the report was made. This is the cumulative effect of the attending circumstances of the present case which must be taken into consideration and we are inclined to take the same into consideration. The attending atmosphere of the case is clear and no ambiguity is hovering over the skies. When the spot is proved, when the report was promptly made and when the recoveries were made from the spot, then nothing is left for this Court to take another view, but the one that the prosecution succeeded in connecting the appellant with the tragic deaths of the deceased. As admittedly no contradictions were found and no minor discrepancies could be noted, so it is the consistency between the witnesses which has brought the learned Trial Court to hold the appellant responsible for the death of the deceased and this is the consistency between their statements which has persuaded this Court regarding the involvement of the appellant in the episode. Even if minor discrepancies could be noted, the same would hardly be the determining factor and at the most that would add to the responsibilities of the Courts of law to apply extra care, while determining the fate of the appellant. As the witnesses remained consistent on the material aspects of the case, so minor discrepancies would hardly be a ground for dislodging the proved case of the prosecution. The contradictions in the statements could be fatal but the discrepancies would in no way would help the accused and would damage the prosecution case. As in held in case titled “Sharfuddin alias Sharfu and another vs. The State”, (2022 YLR 324), it is held that:
“The minor discrepancies pointed out by the learned counsel are not helpful to the defense because with the passage of time such discrepancies are bound to occur. The occurrence took place in broad day light and both parties knew each other so there was no mistaken identity and in absence of any previous enmity there could be no substitution by letting off the real culprit specially when the appellant alone was responsible for the murder of the deceased. The evidence of two eye-witnesses was consistent, truthful and confidence-inspiring. The medical evidence fully supports the ocular account so far the injuries received by the deceased, time which lapse between the injury and death and between death and postmortem.”
11. The dead bodies were examined by the doctor, the postmortem examination was conducted and the cause of death was disclosed as firearm injuries. The doctor was examined as PW-3, who explained the circumstances in which the dead bodies were received and he also explained the kind and nature of injuries, which he found over the dead bodies of the deceased. The seat of injuries on the dead bodies of both the deceased confirm that the tragic act was performed by both the accused and that the weapon recovered from the appellant and the empties recovered from the spot support the stance of the complainant and also the stance of the doctor. We are confident in holding that the tragic incident was the outcome of the participation of both the accused and the dimension of injuries on the dead bodies of the deceased substantiate the view of this Court. The medical evidence is in harmony with the ocular account and despite efforts no conflict could be noted. When the medical evidence is in harmony with the ocular account and when the ocular account is confidence inspiring, then nothing is left for the appellant to convince in a different manner. As is held in case titled “Ansar and others versus The State and others”, (2023 SCMR 929), which is reproduced herein below:
“All these witnesses of the ocular account remained consistent on each and every material point qua the date, time, mode, manner of the occurrence and the locale of the injuries on the person of the deceased and the injured PW. Sarfraz (PW-3) had sustained injuries during the occurrence, which have fully been supported by the medical evidence given by Dr. Muhammad Tariq, who appeared as PW-8. The testimony of this injured PW as well as the stamp of injuries on his person clearly proves his presence at the place of occurrence. These PWs remained consistent on each and every material point inasmuch as they made deposition according to the circumstances surfaced in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. These PWs were subjected to lengthy cross-examination but their testimonies could not be shattered.”
12. The appellant was arrested on 28.04.2021 from his house and from his personal possession the weapon of offence was recovered and in that respect an FIR u/S. 15-AA was registered. The collected weapon was taken to the police station, the same was placed in the malkhana and it was the investigating officer of this case, who took the same into possession, that too, in presence of the marginal witnesses. The collected weapon alongwith the recovered empties was sent to the firearms expert and a report was received in positive. The safe custody of the recovered weapon is established on record and so its safe transmission. When this piece of evidence is taken into consideration with the statements of the witnesses, then this Court is confident in holding that the recovered weapon was used by the appellant in the tragic incident. True that laboratory report is supportive in nature, but equally true that the same can be read in aid of the witnesses who stood reliable and credible.
13. The motive was alleged as a landed property dispute and a dispute over the trees available in the same. As the witnesses remained consistent and as the complainant in his very report disclosed the subject of dispute, so no ambiguity is left regarding the motive, that too, when the investigating officer succeeded in placing on record different documents, regarding the property in question, between the parties. There is no cavil with the proposition that weakness or absence of motive would hardly be a ground for acquitting an accused, but in most of the cases it plays a determining role to determine the quantum of the sentence, to be awarded. As admittedly, there was an altercation between the parties before the tragic incident and as admittedly both the parties participated in hot discussion, which prompted the accused to kill. As the accused did not visit the spot with the only mind to kill, had that been so, then on reaching to the spot they would have fired, but when the parties altercated and when the parties exchanged harsh words, then this Court is inclined in holding that it was the loss of temperament which led to the unfortunate incident and when so then the same can be taken into consideration for determining the quantum of the sentence to be awarded and for determining the reasonableness of the awarded sentence. As is held in case titled “Mst. Bevi vs. Ghulam Shabbir and another” (1980 SCMR 859) where it is held:
“The question of sentence undoubtedly present a complex problem. On the one hand the prosecution asserted a definite motive for Ghulam Shabbir respondent to murder the deceased--either as a hired assassin or without payment a mere obligation on the asking of Ghulam Abbas acquitted accused. The failure of this part of the prosecution cast even (if the acquittal of Ghulam Abbas is considered to be on benefit of doubt) can be pressed in service by Ghulam Shabbir when considering the question of sentence. On the other hand, if the assumed motive-ii kept in view that is guilty of an unprovoked cruel act of murder. It has been held in some cases that the principle underlying the concept of benefit of doubt can in addition to the consideration of question of guilt or otherwise, be pressed also in matter of sentence. As a definite motive was asserted against the respondent and the same has failed, keeping in view all the circumstances of this case, it would not be necessary to impose the capital punishment. Therefore while finding him guilty; under section 302, P.P.C. he is sentenced to transportation for life should be awarded as compensation.”
14. The cumulative effect of what have been stated above leads this Court to an irresistible conclusion that the learned trial Court fully appreciated the evidence on file and that the prosecution succeeded in bringing home guilt against the appellant. As the appellant has been awarded death sentence, so this Court is to see as to whether the learned Trial Court was justified to award the awarded sentence and that what persuaded the learned Judge to go to that extent. In order to appreciate as to what should have been the appropriate sentence, we deem essential to reconsider the motive alleged by the prosecution and to reconsider the manner in which the parties altercated, which led to the tragic incident. As the witnesses remained consistent that the accused arrived to the spot duly armed, the parties altercated with each other and the accused used abusive language, so when such was the state of affairs, then this Court is inclined to hold that not only the accused but the deceased and the complainant were at fault, as well. As not only the accused but the deceased were also instrumental in spoiling the peaceful atmosphere and in disturbing the minds of the accused, so in our understanding the learned trial Court fell into error while awarding the sentence. As it was the rise of emotion because of hot talks between the parties, so the same excludes the possibility of a pre-determined mind to kill, rather it tells that it was the created situation which led to the death of the deceased. Though it was because of the participation of both the parties which aggravated situation, but that would hardly be a ground for extending extra ordinary benefit to the appellant. What benefit the appellant can claim is only in respect of the awarded sentence and in our understanding it would be a correct approach, if instead the appellant was convicted and sentenced to life imprisonment. So to meet the ends of justice we deem it desirable to interfere in the instant appeal and in our understanding the awarded sentence is more than the required. The instant criminal appeal is partially allowed; the sentence is reduced from death to imprisonment for life u/S. 302(b) PPC, whereas the remaining judgment is left undisturbed/ intact.
15. As the appeal has been partially allowed and the death sentence has been altered/reduced to life imprisonment, so the Murder Reference No. 08-P of 2023 is answered in Negative.
(A.A.K.) Appeal partially allowed
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