Mehmood Maqbool Bajwa, J.--Through this judgment Criminal Appeal No, 400-J of 2011 titled "Laalu v. The State" and Murder. Reference No, 27 of 2010 titled "The State v. Laalu SIO Khuda Bakhsh" shall be disposed of as both arises from one and the same judgment dated 3rd of May, 2010 handed down by a learned Additional Sessions Judge, Dera Ghazi Khan.
2. After conclusibn of trial in Crime Report Bearing No, 79 of 2007 registered under Sections 302, 324 read with Section 34 of The Pakistan Penal Code, 1860 (Act No, XLV of 1860) (Hereinafter called The Code) at Police Station Kot Mubarak, D.G. Khan Laalu was convicted under Section 302(b) of The Code on two counts and was awarded sentence of death for committing Qatal-i-Amd of Tooza, while life imprisonment was awarded due to proof of murder of Mst. Bhami.
Compensation to the tune of Rs, 200,000/-(Two hundred thousand rupees) was awarded on each count to be paid to the legal heirs of both the deceased. In default the appellant was to further undergo one year simple imprisonment.
Recording conviction under Section 324 of The Code on two counts due to causing, injuries on the person of complainant (PW-3) and Muhammad Musa (PW-4), 5- years rigorous imprisonment was awarded on each count besides imposition of fine in a sum of Rs, 50,000/- on each count and in default to suffer six months simple imprisonment on each default.
3. Dadu complainant (written as Daud while appearing as (PW-3)) who is father of Toota (deceased), Muhammad Musa, Injured (PW-4) and son of Mst. Bhambi (deceased) got the first information report (EX-PA-A) lodged by making statement (EX-PA) with the accusation that on the intervening night of 18th/19th March, 2007, he along with his family members was sleeping in his house, when Ghulam Yasin, Ghulam Fareed, laalu (hereinafter called the appellant) armed with Kalashnikov and Khaili accused with .12-Bore Gun entered in the house.
Ghulam Yasin and Khaili with their respective arms fired at his mother i,e, Mst. Bhambi causing injuries on her chest and thumb of right hand respectively. Shot fired by Ghulam Fareed hit on the penis of Toota. Ghulam Yasin caused injury on the right thigh of Musa while shot made by Ghulam Fareed also hit on the same locale i,e, right thigh of Musa. Ghulam Fareed gave "Butt" blow of Rifle on the head of complainant i,e, Dadu.
Accusation against appellant is that he fired shot with Kalashnikov causing injury on the right thigh of Toota, while another shot made by him hit on the right thigh of Muhammad Musa (PW-4).
Occurrence is stated to be seen by Allah Ditta (PW-10) and Meeran Khan (since given up) who attracted to the spot after hearing report of noise.
4. Toota and Mst. Bhambi died at the spot while Muhammad Musa in serious condition was shifted to hospital.
5. Motive behind the occurrence is annoyance of Ghulam Yasin due to refusal of complainant to give hand of his daughter, Mst. Hani despite demand.
6. Khurshid Ahmad, Inspector (PW-6) recorded statement of Dadu, complainant (PW-3) and sent the same to police station for registration of case after making necessary endorsement.
He went to the spot, prepared inquests reports and injuries statements of Mst. Bhambi and Toota (EX-PE, EX-PF) and (EX-PE-A EX-PF-A) respectively. Blood stained hearth was secured from two points vide memos. (EX-PG & EX-PH). He also collected one crime empty of .12-Bore and five empties of Kalashnikov through recovery memo. (Ex-PJ). The complainant also produced torch which he secured through recovery memo. (EX-PK). Broken piece of door (EX-PL-1) was taken into custody through memo. (EX-PL).
Last worn clothes of both the deceased were taken into custody through memos. (EX-PC & EX-PC- A).
Appellant got recovered Kalashnikov on 30th April 2009 which was taken into custody vide recovery memo. (EX-PM).
7. After usual investigation, Report under Section 173 of The Code of Criminal Procedure, 1898 (Act V of 1898) (hereinafter called Act V of 1898) was submitted against the appellant.
Rest were declared proclaimed offenders.
8. Dr. Naveed Asif Yousafi, (PW-12) examined Dadu (complainant) and noted one lacerated wound inverted v. Shape 1-cm each limb located on the scalp of head. EX-PN is copy of Medico Legal certificate.
The said Medical Officer also examined Muhammad Musa (PW-4) and observed following injuries on his body WOUND OF ENTRY a. A lacerated wound of 3 cm x 2 cm was located on anterior surface of lower 1/3 of right thigh. Margins were blackened inverted. b. A lacerated wound 21/2 cm x 2 cm located on 4 cm below and 3 cm posterior to Injury No, a on lateral side. c. A lacerated wound of 3 cm x 2 cm was located 3 cm posterior and 1 cm below to Injury No, b on lateral side, WOUND OF EXIT d. .1/4 cm in diameter a lacerated wound located on lower 1,3 anterior surface of right thigh 7 cm below and 5 cm posterior on medial side to Injury No, a. It was wound of exit of a. e. A lacerated wound of 5 cm x 2 cm located 1 cm below and 3 cm posterior on media side to Injury No, d. It was wound of exit of b.
9. Dr.Abdur Rehman Kholdiar (PW-14) conducted autopsy on the dead body of Muhammad Toota and noted following injuries:--
1. Wound of entry. A lacerated wound of size 2cm x 1.5 cm circular shape, margins inverted, burnt, no blackening seen, situated at the right mid inguinal region.
2. Wound of entry. A lacerated wound of size 2cm x 1.5cm oval shape Inverted burnt margin, no blackening seen, situated at upper 1/3 of right thigh front.
3. Swelling of size 20 cm x 15 cm at upper half of right thigh front.
4. Wound of exit. A lacerated wound of thigh 5cm x 3cm with everted margin on back of middle 1/3 of right thigh.
5. Wound of exit, A lacerated wound of thigh 2 cm x 2.5 cm everted margin on medial side of right buttock.
(Holes in the clothes (Shalwar) corresponding injuries sites).
Post mortem Report is EX-PP while pictorial diagrams are (Ex-PP-A and EX-PP-B).
10. Dr.Asifa Batool (PW-15) conducted post-mortem on the dead body of Mst. Bhambi and observed following injuries.
1. Wound of entry. An Irregular with inverted edges 2 cm long x 1 cm broad on front of chest at 3rd castal space region on left side of ' Sternum.
2. Wound of exit with everted edges 3 cm in diameter oval in shape on lower angle of scapula on right side.
EX-PQ is the copy of post-mortem report
11. The prosecution in order to prove its case produced fifteen witnesses including complainant (PW--3) and Muhammad Musa an injured eye-witness (PW-4).
12. Pleading innocence and false Implication, the appellant termed the occurrence as blind one and stated that he was involved due to local and tribal rivalry.
Motive suggested was also disputed in his statement.
13. Delay of seven hours in lodging FIR was pleaded vehemently in order to prove that it was blind occurrence and none witnessed the same. Referring to the contents of FIR (EX-PA-A), it was submitted that no explanation was offered to justify delay, sufficient to suggest deliberation on the part of complainant.
Continuing the arguments, it was submitted that both the witnesses (PW-3 and PW-4) were not in a position to identify the appellant as it was dark and according to the witnesses, they identified the appellant in the light of torch. Argued that even otherwise, evidence of the witnesses cannot be believed in view of material contradictions in their evidence.
Postmortem with delay was also agitated to disbelieve the story of prosecution.
Drawing our attention to the motive set up in the FIR as well as stated by the complainant (PW-3), it was argued that same is not attributed to the appellant.
Referring to the report of Forensic Science Laboratory (EXPQ-E) it was sic negative report substantiate the plea of appellant regarding his innocence.
14. On the other hand, learned Additional Prosecutor General assisted by learned counsel for the complainant though admitted delay in lodging FIR but contended that occurrence took place at night and place of occurrence is at a distance of 25-kildmeters from police .Station. Further submitted that there was no source of transport and keeping in view the locality where vagabonds are living, it was no possible to Approach police at night.
Relying upon the ocular account, it was submitted that complainant and Muhammad Musa (PW-3 & PW-4) are injured witnesses. Referring to their deposition, it was contended that both the witnesses gave the detail of occurrence highlighting the mode of occurrence and role of appellant causing injuries not only to Toota (deceased) but also to Muhammad Musa (PW-4) and credibility of the witnesses could not be shaken in cross-examination.
Further argued that appellant is close relative of the complainant and as such question of mis- identification does not arise at all.
Continuing the arguments, it was contended that complainant being close relative of the appellant would be the last person to implicate him falsely.
15. Ocular account furnished by prosecution comprises statements of complainant Dadu (PW-3) and Muhammad Musa (PW4). Both are injured eye-witnesses.
Suggestion regarding non-presence of the complainant was probably put to him sic ignoring the fact that complainant also sustained injury finding support from copy of MLC (EX-PN).The argument as such advanced would not substantiate the plea of appellant.
16. Muhammad Musa (PW-4) is also the injured eye-witness whose presence at the spot also cannot be doubted.
17. The complainant (PW-3) and Muhammad Musa (PW-4) both with one voice disclosed the mode and manner of occurrence by deposing that the appellant with his associate entered in his residential room by breaking door of the room. The complainant categorically highlighted the role of appellant by adding that he fired shot Causing injury on the right thigh of Toota. He also disclosed that second shot fired by appellant hit his son Musa on right thigh.
Muhammad Musa (PW-4) in his deposition described the same role to the appellant.
The witnesses also disclosed the role of associates of the appellant causing injury on the person of Toota, Mst. Bhambi as well as complainant.
Since rest are proclaimed offenders, therefore, it is not desirable to deal with their role and appraise the evidence in depth on this aspect. Suffice it to say that direct statements of both the P witnesses are in line with the case of prosecution set up regarding the mode and manner of occurrence and role of the appellant causing injuries on the person of Toota (deceased) and Muhammad Mu.Sa.
Though the witnesses (PW-3 & PW-4) were cross-examined but their sic could not be shaken in cross-examination.
In the circumstances, evidence of both the witnesses describing the mode and manner of occurrence, role of appellant causing injuries on the person of Toota (deceased) and Muhammad Musa (PW-4) can be surely believed, relied and acted upon.
18. In the complainant in categorical terms stated that appellant and others entered in the room by breaking the door with their weapons which also could not be shattered and finds support from the recovery of piece (Phatta) taker, into custody through recovery memo. (EX-PL), which recovery stands proved in view of the evidence of Allah Ditta (PW-10).
19. Identification of appellant as assailant the seriously questioned by the learned counsel for the appellant. Rather attention was focused on this aspect with vehemence. However, keeping in view the facts and circumstances of the case, argument is of little help to the appellant.
Relationship of the appellant with the complainant and eyewitness is not.Known as nothing is available on the record.
While perusing the judgment assailed (page 73 of the paper book), it revealed that appellant is son of the sister of the complainant which relationship on our query was hot questioned on behalf of appellant during the course of argument.
The complainant (PW-3) in cross-examination categorically stated that he alongwith all his sons, daughters and mother were sleeping in one and the same room which admittedly is a place of occurrence. The complainant in his direct statement made categorical statement that he identified the appellant in the light of torch which too remain un-rebutted.
The complainant also produced torch (P7) to the Investigating Officer (PW-6), secured through recovery memo. (EX-PK), recovery of which stands established by the evidence of Allah Ditta (PW- 10) which deposition remained un-questioned in view of non-availing right of cross-examination though extended, Keeping in view the close relationship of the complainant and eye-witness (PW-3 and PW-4) with appellant, Identification of appellant from the close range in the light of torch, argument regarding mis-identification of the appellant as assailant is misconceived and ill-founded.
20. We are also conscious of the argument advanced by learned counsel for the appellant to draw adverse presumption against the prosecution due to non-production of Allah Ditta and Meeran Khan who statedly came at the spot after hearing report of noise.
Though in the contents of FIR (EX-PA-A) presence of above named persons finds mentioned but the way, their arrival is shown does not suggest that they also witnessed the occurrence.
Statements of both the witnesses (PW-3 and PV/-4) also does not suggest that said witnesses saw the occurrence. Their presence at the occurrence in view of evidence appears to be at the time when occurrence terminated.
The argument as such is without force.
21. Factum of recovery in view of negative report of Forensic Science laboratory (Ex-PQ-E) has become inconsequential. However, it has to be kept in mind that appellant was arrested on 30th April 2009 though occurrence took place on 19' March, 2007.
22. Seat and locale of injuries disclosed by complainant and eye-witness (PW-3 & PW-4) find support from copy of post-mortem report of Toota (EX-PP) and copy of Medico legal certificate of Muhammad Musa (EX-PN-A).
23. Abscondane of appellant for a period of more than two years in the absence of any explanation on behalf of appellant in his statement under Section 342 of The Act v. Of 1898 is another factor to be kept in view providing corroboration to the ocular account regarding culpability of the appellant.
24. Now we will deal with crucial point which was heavily relied upon by learned counsel for the appellant Delay in lodging FIR is not disputed. Occurrence took place at night (approximately at 12.00am). Complainant got his statement (EX-PA) recorded to Kaurshid Ahmad S. I (now inspector)
(PW-6) at 7.30 am in the area of Paroo.
Police station is at a distance of 28 kilometer from the place of occurrence.
Through we are conscious that complainant in his statement did not utter even a single word explaining the delay but keeping in view the peculiar facts of the case we are of the considered view that delay by itself would not be sufficient to put dent in the case of prosecution which admittedly is not a rule of universal application. Delay in lodging the FIR is not per se fatal in all cases and would not be sufficient to washes away trustworthy and reliable ocular account.
Reliance is placed upon "Sheraz Asghar v. The State" (1995 SCM R 1365).
Question for consideration in order to determine the importance sic argument is whether due to delay, the complainant got any advantage or not.
As referred earlier, appellant is son of sister of the complainant sic close, relative, the complainant will think hundred times to implicate the appellant falsely.
Specific role has been attributed to the appellant of causing injuries not only to Toota (deceased) but also to Muhammad Musa, injured eye-witness (PW-4). Credibility and reliability of the witnesses (PW-3 & PW-4) could not be shaken in cross-examination. No motive, bias or animosity was attributed to the witnesses (PW-3 & PW-4) prompting us even to presume element of deliberation, false implication.
The appellant in his statement without oath also did not of advert to this aspect and just stated that his involvement is result of local and tribal enmity but detail of such animosity was not disclosed.
In the circumstances, delay in lodging the FIR will not caste doubt about the veracity of prosecution version.
25. Bare perusal of the FIR suggests that motive was attributed to Ghulam Yasin accused (proclaimed offender). Inter-se relationship of appellant and Ghulam Yasin way not highlighted on behalf of prosecution prompting us to believe motive against appellant.
With this background, we are of the considered view that prosecution failed to prove motive against appellant.
26. It is an admitted fact that appellant did not cause any injury Mst. Bhambi (deceased) and complainant but he was held liable on the principle vicarious liability. Arrival of the appellant with his associate at the place of occurring while armed with fire-arms, participating in the occurrence, causing injury to one of the deceased and injured-eye-witness (PW-4) in the absence of any contrary material sufficient to prove element of common intention.
27. Pursuant to discussion made, we are convinced that prosecution has successfully proved its case against the appellant beyond shadow of doubt under Sections 302, 324 read with Section 34 of The Code, committing Qatal-i-Amad of Toota and Ms. Bhambi and causing murderous assault upon Muhammad Muse (PW-4) and complainant (PW-3).
28. Resultantly, we maintain conviction of the appellant under Section 302(b) read with Section 34 and Section 324 read with Section 34 of The Code on two counts.
29. The appellant was awarded sentence of death being instrument in the Qatal-Amad of Toota (deceased).
Since prosecution failed to prove motive against the appellant as discussed, therefore, while considering the same as mitigating circumstance, we convert the sentence of death into life imprisonment under Section 302(b) of The Code on this count.
30. The appellant was awarded sentence of life imprisonment under Section 302(b) read with Section 34 of The code on the principle of vicarious liability regarding murder of Mst. Bhambi .Which sentence in the circumstances is maintained.
31. The learned trial Court required the appellant to pay compensation to the tune of Rs, 200,000/- (two hundred, thousand rupees) on each count which is also maintenance.
However, due to non-payment of compensation, the appellant was required to suffer one year simple imprisonment.
While awarding quantum of sentence, the learned that Court did not go through the provisions of Section 544-A of Act v. Of 1898, according to which the convict in default of payment of compensation shall suffer imprisonment for a period not exceeding six months.
Accordingly, we hold that appellant in case of failure to pay compensation on each count, shall suffer simple imprisonment not exceeding six months on each count.
32. We may also observe that amount of compensation can be recovered as arrears of land revenue according to mandate of Section 544-A(2) of The Act V of 1898.
33. Sentence of imprisonment and fine awarded to the appellant by learned trial Court under Section 324 read with Section 34 of The Code on two counts is maintained.
34. Epitome of above discussion is that the appeal titled "Laalu v. The State" (Criminal Appeal No, 4004 of 2011) is dismissed but subject to modification of sentence referred.
35. As sentence of death has not been confirmed, therefore, Murder Reference No, 27 of 2010 is answered in negative.
36. Sentences awarded to the appellant on all counts shall run concurrently with extension of benefit under Section 382-B of Act v. Of 1898.