Hafiz Shahid Nadeem Kahloon, J. Appellant namely Muhammad Ahsan questioned the conviction and sentence imposed by learned Addl. Sessions Judge, Vehari vide judgment dated 29-04-2011 in case FIR No.105/2007, dated 11.02.2007, registered under Section 302/34 PPC, at Police Station Luddan, Vehari, whereto he was convicted for assassination of Fayyaz Ahmad; with the imploring that the impugned conviction and sentence may be set at naught and he may be acquitted of the charge. There are following particulars of conviction and sentence enumerated as under:- Under Section (302-(b) PPC).
Imprisonment for life with compensation of Rs.1,00,000/- payable to the legal heirs of Fayyaz Ahmad, deceased under Section 544-A Cr.P.C. In default whereto further undergo 6-months S.I. By giving him the benefit of Section 382-B Cr.P.C.
Criminal Revision No.257 of 2011 filed by complainant Niaz Ahmad, under Section 435/439 Cr.P.C. For the enhancement of sentence of imprisonment for life awarded to Muhammad Ahsan, respondent No.2 into death sentence.
2. The squeeze facts as narrated in complaint (Ex.PE) got recorded by Niaz Ahmad, complainant (PW-6) before Latif-Ullah, S.I. (PW-3) are that on 11.02.2007 at about 4.30 pm, Fayyaz Ahmad, brother of the complainant was going on Motor-cycle along with Wali Daad (PW-7) from Mauze Todar towards Bhindi Salool and when they reached near the house of Sikandar Mamkhaira, all of sudden, Ahsan (appellant) while armed with pistol .30 bore, Shaukat (since acquitted) armed with rifle 7-mm, Ijaz co-accused (since convicted) armed with rifle .222 bore emerged there. On seeing Fayyaz Ahmad, Arif co-accused (since dead) raised lalkara to catch hold Fayyaz Ahmad and commit his murder. In the meanwhile, Ahsan (appellant) made fire-shot of his pistol hitting on chest near the neck of Fayyaz Ahmad. On hearing noise of firing, Niaz Ahmad (complainant) & Muhammad Afzal, witnesses rushed towards him and in the meanwhile, Shaukat (since acquitted) made fire-shot with rifle 7-mm hitting on the left hand of Fayyaz Ahmad, whereas Ijaz, co-accused (since convicted) fired with his rifle .222 hitting on left shoulder of deceased, who fell down. There- after the accused-persons fled away while brandishing their weapons. Fayyaz Ahmad, due to serious condition, succumbed to the injuries at the spot. On the basis of "Fard-Bian" (Ex.PE), formal FIR (Ex.PM) was registered by Muhammad Mansha (PW-5).
3. The motive behind the occurrence was alleged that prior to this occurrence, parties had a murder enmity with each other.
4. There-after Latif-ullah, S.I/I.O. (PW-3) went to the place of occurrence, inspected the dead body lying at the spot, prepared the injury statement (Ex.PF), inquest report (Ex.PG) and sent the dead body of the deceased to the mortuary along with police papers through Ghulam Hussain C/29 for post mortem examination. I.O. Inspected the spot, took Motorcycle (P-1), into custody vide recovery memo (Ex.PH), took into possession blood stained earth vide recovery memo (Ex.PJ), prepared rough site plan (Ex.PA), got prepared (Ex.PA/1 & Ex.PA/2). After the post mortem examination of dead body of the deceased, he received last worn clothes vide recovery (Ex.PL), which were attested by the PWs. I.O. Arrested Ijaz (since convicted) on 15.02.2007. The appellant was declared proclaimed offender after observing all the proceedings and statement of process server was recorded in this behalf and report u/s.512 Cr.P.C. Against appellant was submitted on 23.04.2007.
Subsequently, Khadim Hussain, S.I/I.O (CW-1) arrested the appellant on 05.09.2009 and started investigation in this case.
5. Dr. Khalid Mehmood (PW-2) conducted post mortem examination on dead body of Fayyaz Ahmad, "deceased" on 12.02.2007 and noted the following injuries.
Injuries A gun shot entry wound with inverted margins having collar of abrasion measuring 0.8 cm x 0.6 cm x through and through the chest cavity on the left side of front of chest near the sternclavicular joint tattooing around the wound is present.
On dissection there was fracture of sternal end of clavicle (collar bone). Damaged to the major blood vessels in the chest, laceration of upper and half of middle lobe of left lung, fracture of fifth and sixth ribs then it tracked through the axilla, damaging the auxiliary blood vessels and came out of outer aspect of middle of left arm as injury No.2. Wound of exit measuring 4-cm x 1.5 cm.
A radish black contusion 2-cm x 2.5 cm on the back of left wrist joint.
Opinion All the injuries were ante mortem; death was due to injury No.1 causing damage to the major blood vessels in thorax and left lung which leads to hemorrhage and respiratory shock and death. Injury No.1 was sufficient to cause death in ordinary course of nature. Injuries No.1 & 2 were caused by firearm weapon and injury No.3 by blunt weapon. The probable time between injury and death was within few minutes and between death and postmortem was 20 to 22 hours.
6. After completion of the investigation, report under section 173 Cr.P.C was submitted in the Court.
Charge was framed which was denied by the appellant and he claimed to be tried, hence, the prosecution witnesses were summoned and then their statements were recorded by the learned trial court.
7. The prosecution in order to prove its case produced as many as 9 witnesses. Details of crime report (Ex.PE) was got furnished by Niaz Ahmad, complainant, brother of deceased, ocular account was furnished by Niaz Ahmad (PW-6) and Wali Daad (PW-7), while medical evidence was furnished by Dr. Khalid Mehmood (PW-2), who conducted the post mortem examination of the deceased. However, the investigation had been conducted by Latif-ullah, S.I. (PW-3) & Khadim Hussain, S.I. (CW-1). Remaining (PWs) are of formal in nature and need not to be discussed here.
Learned ADPP through separate statement recorded on 01.04.2011 after tendering in evidence, report of Chemical Examiner (Exh.PP), report of Serologist (Exh.PQ) regarding the blood stained earth, closed the prosecution evidence. The appellant was examined under Section 342 Cr.P.C, who denied the allegations and professed his innocence. However, to a question that "why this case against you and why the PWs deposed against you?" Ahsan, appellant-accused made reply with following words:- "PWs are interested & inimical and are dead enemies of my family and for that reason I have been falsely implicated in this case."
9. The appellant neither opted to make statement on oath as required under Section 340(2) Cr.P.C, nor adduced evidence in his defence. Learned trial Court after evaluating the evidence on record and hearing arguments of both parties, had passed the impugned judgment in the above mentioned terms. Hence, this appeal.
10. Conversely, learned counsel for the appellant submitted that ocular account put forth by prosecution witnesses was not at all supported by medical evidence as allegation against appellant that on the said day he was armed with pistol 30-bore, caused fire shot which hit on chest near the neck of Fayyaz Ahmed-deceased; further submits that injuries No.1 & 2 were actually caused by fire arm weapon whereas injury No.3 was caused by blunt weapon and injury No.2 was the result of injury No.1; further argued that Wali Dad (PW-7) was not at all eye witness of the occurrence and he rushed there subsequently, eye witness Muhammad Afzal was never introduced by prosecution, there was no independent corroboration qua the guilt of appellant, hence prosecution failed to establish its case with cogent reasons against appellant and learned trial Court profoundly failed to appreciate this limb of case and authored impugned judgment in a sketchy manner and imposed impugned conviction and sentence upon appellant which was not adhered to the facts and circumstances of the case, hence voiced acquittal of the appellant in this case.
11. In order to defeat the contentions of learned counsel for the appellant learned Deputy Prosecutor General assisted by learned counsel for complainant has reiteratedly contested this appeal on the ground that assassination of deceased was fully proved and in this case report under Section 173 Cr.P.C. Was preferred before learned trial Court after putting his name in column No.3 wherefore medical evidence was unison with ocular account and appellant remained fugitive of law for a countless period and there was sufficient material in the shape of statements of prosecution witnesses who fully corroborated motive as well as medical evidence; prosecution duly proved its case beyond reasonable doubt and dug out true facts and constituted series of facts and circumstances which culminated conviction and sentence of the appellant. Further submits that the prosecution has proved its case throughout therefore, at this juncture it would be appropriate to point out the vital fact that the criminal revision filed by petitioner (complainant) may also be taken into consideration and it is a fit case for the enhancement of sentence from life imprisonment to death.
12. I have heard the arguments of learned counsel for the parties and thrashed out the record with their assistance.
13. In order to streamline every inch of case and draining out true and actual facts assistance was made by learned counsel for appellant as well as learned D.P.G. And learned counsel for complainant who with heedful manner provided supportive arguments and record, statements of PWs, exhibits as well as impugned judgment was read with diligent efforts made by learned counsel for the parties; after thorough scanning of the entire record it is better and appropriate to see whether in the instant case the prosecution fulfilled its role successfully, proved its case or not, these queries are to be taken support from the evidence in hand and testimonial submitted by the parties; according to deposition of complainant (PW-6) on 11.02.2007 about 04:30 P.M. Fayyaz Ahmed-deceased and Wali Dad (PW-7) were riding on motorcycle went towards Bhindi Salool and reached near the dwelling of Sikandar Mankaira, abruptly Ahsan-appellant emerge out there along with his co-accused, Arif (since dead) voiced Lalkara to catch hold Fayyaz Ahmad-deceased for commission of his murder, during this planning by taking advantages of the situation Ahsan- appellant fired a shot from his pistol, which hit on chest of deceased near neck region, Shaukat Ali (stood acquitted), caused fire shot from his respective rifle i.e. 07-MM which hit on the left wrist of the deceased, while Ijaz co-accused (since convicted) caused a fire shot from his respective rifle- 222 which hit the left shoulder of deceased who after sustaining such injuries took his last breath and kissed the dust. In this regard deposition of Niaz Ahmad/PW-6 was fully supported by Wali Dad (PW-7); according to the contention raised by learned counsel for the appellant, Wali Dad (PW-7) was not present at the sight and he cannot be declared as eye witness of the said occurrence, hence, this contention of learned counsel for the appellant having no force, as it was mentioned in the complaint Exh.P-E that Wali Dad (PW-7) was accompanying deceased at the time of said occurrence; such deposition was gone out from the statement of complainant (PW-6) and Wali Dad (PW-7) who categorically stated in their examination in chief that Wali Dad (PW-7) was in the company of deceased when they were riding on motorcycle at the time of occurrence. According to statements of Niaz Ahmad (PW-6) and Wali Dad (PW-7), it was Ahsan appellant who made fire shot with his pistol which hit on the chest of deceased hence injury No.1 was ascribed to appellant which was sufficient to cause death of deceased, actually it was the daylight occurrence wherefore the presence of PWs at the spot and at relevant time was quite natural and FIR (Exh.P- M/1) was promptly lodged as the occurrence took place at 04:30 P.M. And same was reported to the police at 06:30 P.M., formal FIR Exh.P-M/1 was got recorded at police station at 06:35 P.M., the distance from the place of occurrence and concerned police station Luddan was approximately 08 miles, that is why exclusive contention deliberation, consultation and false implication of Ahsan- appellant was over ruled; Niaz Ahmad (PW-6) and Wali Dad (PW-7) were also subjected to the test of lengthy cross examination but the defence could not extract anything contrary which could shatter the prosecution version to the extent of appellant.
14. Medical evidence was furnished by Dr. Khalid Mehmood (PW2) who conducted postmortem examination of corpus of deceased on 12.02.2007 and observed three injuries on the person of deceased, injury No.1 assigned to present appellant which was inverted margins wound caused damage to major blood vessels in thorax and left lung which led to hemorrhage and respiratory shock which resulted into death. This typical aspect of the evidence further corroborated with ocular account in all spheres; no other inference can be guessed even then it was the appellant who made straight fire shot from his pistol which hit on the chest near the neck resulting the death of the deceased.
15. It is necessary to point out the factum of abscondance of appellant for considerable period which also supported the prosecution version as according to Lateef Ullah-S.I/I.O. (PW-3) who made hectic efforts from pillar to post to trace out Ahsan-appellant but remained unable even to know about the whereabouts of appellant; The fact of abscondance of the appellant is very vital at this stage and is a relevant fact which can be used as a corroborative piece of evidence, which cannot be read in isolation but as to be read along with substantive piece of evidence, in this respect reference can be made to case titled "Rohtas Khan V. The State" (2010 SCM R 566), and "Rahimullah Jan v. Kashif and another" (PL"D 2008 Supreme Court 298). It is also necessary to point out here that the I.O. Due to constrained circumstances submitted report under Section 512 Cr.P.C.
Against the appellant before the learned trial Court on 23.04.2010 after observing all the proceedings of abscondance, as process server submitted his report before learned trial Court in this regard; thereafter, Khadim Hussain S.I. (CW-1) arrested appellant on 05.09.2009 thus the appellant remained absconder for a period of two and half years, this fact also strengthened the case of prosecution that it was appellant who was responsible for commission of murder of deceased.
16. In order to thrash the things on the right pedestal it is necessary to quote defence version which plunged into circumstances when the examination of appellant was going on under Section 342 Cr.P.C. That PWs were interested, inimical and were dead enemies of his family and for that reasons he was falsely involved in this case but the witnesses against whom this version was put forth, they categorically denied this fact wherefore, defence version was after thought and could not be believed for the reasons as stated above; appellant also did not produce any evidence in defence to substantiate his version; substitution of real culprit is a rare phenomenon and there is nothing on the record that the appellant was implicated falsely in this case in order to quench the demonic parched throats.
17. The essence of my above said discussion is that prosecution has fully proved the guilt of the appellant for the murder of Fayyaz Ahmad beyond any shadow of doubt. The conviction of the appellant under Section 302(b) PPC recorded by learned trial Court is based upon well reasons & settled principle of appreciation of evidence. Hence, the conviction and sentence recorded by the learned trial Court vide impugned judgment dated 29.04.2011 is hereby maintained. Consequently, the instant appeal fails and same is hereby dismissed being devoid of force.
18. So far as the criminal revision through which Niaz Ahmad, petitioner being complainant challenged the sentence of the appellant-accused with the prayer that the same may be enhanced to death sentence is concerned, as discussed supra no case of capital punishment is made, hence, Criminal Revision No.257/2011 filed by Niaz Ahmad (complainant) is without merits and same is also hereby dismissed.
TAGLINE I.O. Who made hectic efforts from pillar to post to trace out appellant but remained unable even to know about his whereabouts; The fact of abscondance of the appellant is very vital at this stage and is a relevant fact which can be used as a corroborative piece of evidence, which cannot be read in isolation but as to be read along with substantive piece of evidence as per law laid down by the August Supreme Court of Pakistan in case titled "Rohtas Khan Vs. The State" (2010 SCM R 566), and "Rahimullah Jan vs. Kashif and another" (PL"D 2008 Supreme Court 298).
Accused remained absconder for a period of two and half years, this fact also strengthened the case of prosecution that it was appellant who was responsible for commission of murder of deceased.
In order to thrash the things on the right pedestal it is necessary to quote defence version which plunged into circumstances when the examination of appellant was going on under Section 342 Cr.P.C. But defence version was after thought and could not be believed for the reasons as stated by appellant that he was falsely involved in this case and appellant did not produce any evidence in defence to substantiate his version; substitution of real culprit is a rare phenomenon and there is nothing on the record that the appellant was implicated falsely in this case in order to quench the demonic parched throats.