This single judgment shall dispose of Crl. Appeal No, 16 of 2010 titled Muhammad Ashraf v. The State" filed by Muhammad Ashraf (appellant), against his conviction and Crl. Revision No, 29 of 2010 titled "Sadiq Masih vs. Muhammad Ashraf etc." filed by the complainant, Sadiq Masih for enhancement, of sentenced of the appellant from life imprisonment to death being originated from the same judgment dated 10-12-2009, passed by the learned Addl. Sessions Judge Jaranwala in case FIR No, 01 dated 02-01-2008, under Sections 302/324/34 PPC, registered at Police Station Lundianwala, Tehsil Jaranwala, District Faisalabad, whereby the appellant Muhammad Ashraf was convicted and sentenced as under:--' US. 302(b) PPC, Sentenced to life imprisonment with fine of Rs,50,000/-; in default thereof to further undergo six months S.I. The convict was also directed to pay compensation of Rs,4,00,000/- to the legal heirs of the deceased.
U/S 324 PPC Sentenced to ten years R.I. with fine of Rs,50,000/- in default thereof to further undergo S.I. for three months. He was also directed to pay Rs,2,00,000/- as compensation to Babar Masih, injured, Both the sentences were ordered to run concurrently. The benefit of Section 382-B Cr.P.C. was also given to the appellant.
2.Brief facts of the case are that Sadiq Masih, complainant (PW.1) appeared before Muhammad Akbar, SI (PW.5), who got recorded his statement Ex.PA, and sent the same for the registration of F.I.R through Tahir Ali, 3731/C, on the basis of which a case under Sections 302/324/34 PPC was registered vide F.I.R No, 01 dated 02-012008 at Police Station Lundianwala, Tehsil Jaranwala, District Faisalabad. The brief facts as mentioned in Para No, 2 of the impugned judgment are as under:-- "The complainant is resident of Chak No, 650- GB Jaranwala. Today, at about 8.00 a.m, he and his father Mohan Masih were standing at the front of their house, meanwhile they saw the wooden killas of cattle which were fixed by Muhammad Ashraf into the bazar. He and his father called Master Muhammad Ashraf who is their neighbour and asked about his killas, why he has fixed the wooden killas in the night hour in front of their houses. Whereupon Master Muhammad Ashraf asked them he has fixed the killas and who has courage to remove do the same. On hearing the noise, Shahid Pervaiz alias Sarfraz, Babar Masih alias Kalu son of Khalid Masih, Mst. Shagufta (His wife), walayat son of Chanan, all of caste Christian residents of same vicinity came at the spot.
Muhammad Ashraf rapidly went to his home and brought a rifle, Muhammad Saleem son of Safdar armed with .12 bore gun, Bilal son of Muhammad Ashraf armed with hatchet, Muhammad Yar son of Muhammad Saleem armed with. sota raising Lalkara came over there. Meanwhile Muhammad Ashraf fired at Shahid Pervaiz alias Sarfraz which hit at left side of his neck and he fell down on the ground. Again he repeated his second fire which hit him near his right shoulder. Babar Masih alias Kalu came to ahead for rescuing him Muhammad Ashraf made a straight fire which hit in front of his chest and he fell down on the ground. Meanwhile, Shagufta came ahead, Bilal son of Muhammad Ashraf caused a blunt side of hatchet blow which hit on the back side of her had and she fell down. Yasar son of Muhammad Aslam armed with sota used to cause repeated Sota blows on the bodies of the injured. All the aforesaid accused persons raised lallutra if any one came near to them they would not be left alive. Due to threat to their lives, they did not to them. On their hue and cry and hearing come near of the fire shots, a number of persons of locality gathered over there. The accused persons by making aerial firing and showing their weapons fled away from the place of occurrence. He alongwith his companions took to the injured persons, who were stained with blood and reached at. Civil Hospital, Jaranwala Babar alias Kalu and his wife Shagufta were admitted to Hospital, Jaranwala while Shahid Pervaiz alias Sarfraz succumbed to the injuries aft, reaching into the hospital. All the accused persons with their common object and intention have committed the murder of Shahid alias Sarfraz and caused the injuries to Babar and Shagufta, injured.
The motive behind the occurrence was that today, in the last night Muhammad Ashraf etc. fixed their wooden killas for their cattle into the bazaar at the front of their houses and on stopping them to do so they have committed the murder of Shahid alias Sarfraz. Hence, the case was registered against the aforesaid accused persons."
3. After completion of investigation, the challan was prepared and submitted before the trial Court against the appellant and his acquitted co-accused namely Muhammad Saleem and Yasir Aslam.
The trial Court after observing codal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against them to which they pleaded not guilty and claimed trial.
The prosecution produced as many as 20 witnesses to bring home the guilt of accused. The ocular account was furnished by Sadiq Masih, complainant (PW.1), Mst. Shagufta Bibi, injured (PW.2) and Babar alias Kalu, injured (PW.3). Akhtar Ali Nizami, draftsman appeared as (PW.14), who prepared scaled site-plan in duplicate Ex.PL and Ex.PL/1. Muhammad Akbar, SI (PW.5) and Abbas Ali, SI (PW.
15) were the Investigating Officers of instant case, who stated about the various steps taken by them during investigation of the case.
The medical evidence was furnished by Kanwal Naeem Bari, WMO (PW.8), Doctor Khalid Javaid (PW.12) and Doctor Sikandar Bakhat (PW.13f.
The autopsy on the dead body of Shahid Pervaiz (deceased) was conducted by Doctor Khalid Javed (PW.12) on 09.07.2014 at 10.00 a.m., who noted following injuries on his body:-- INJURIES Injury No. AA lacerated wound 1 x 1 cm at the base of neck left side with inverted margin encircled with collar blackening 13 cm from left shoulder joint and 5 cm from mid sternum at the distant.
Injury No. BA Circular lacerated wound 1.7 cm x 1.5 cm on right scapular region post posteriorly at 7 cm distance from mid back 16 cm from the tip of right shoulder joint with inverted margin as demonstrated by the post- mortem diagrams.
In the opinion of the doctor all injuries were caused with fire-arm and were ante-mortem, which were sufficient to cause death in ordinary course of nature, due to damage of blood vessels, leading to shock and death. The person died immediately at the spot.
On 02-01-2008 at 12.00 noon, Doctor Kanwal Naeem Bari, WMO (PW.8) medically examined injured Mst. Shagufta Bibi (PW.2) and found following injuries on his person:-- INJURIES 1.An incised wound 5 1/2 xl 1/2 cm x bone exposed on left side of head 7 cm from ear KUO for X-ray.
The kind of weapon was sharp and the probable duration was 3 to 4 hours. MLC Ex.PE and X-ray report was Ex.PE/1.
On 02-01-2008, Doctor Sikandar Bakhat (PW.13) medically examined Babar Masih alias Kalu injured and noted following injuries on his body:-- INJURIES 1.A fire-arm lacerated wound of entry 1 x 0.5 cm with inverted margins on front of chest 2.5 cm from the thyroid cartilage and 1. Cm from sternum bone on the right side.
2.A fire-arm lacerated wound of exist with ragged margins 5.5 cm x 3 cm on back of chest on left side middle part.
Rest of the witnesses are almost formal in nature, hence there is no need to discuss them.
4.The prosecution gave up Walayat, Babar son of Inayat, Mohan Masih, Bashir Masih and Mehmood Ahmad HC, PWs being unnecessary and after tendering in evidence report of Chemical Examiner Ex.PQ and report of. Forensic Science Laboratory Ex.PR, closed its evidence.
5.The statement of the appellant under Section 342 of Code of Criminal Procedure, 1898 was recorded. He denied the allegations levelled against him and claimed his innocence. In answer to a question, "why this case against you and why the PWs had deposed against you? "Muhammad Ashraf, appellant replied as under: "In the days of occurrence 1 was serving as SST teacher for the last about 21 years. PW arc inter see related. They have deposed with mala fide intention. Real facts are suppressed by the complainant while lodgin:; Ex.PA. Inflict occurrence did not take place in the mariner as alleged by the prosecution witnesses. On the day of occurrence complainant party while armed with rifle, hatchet, and sotas etc. started uprooted wooden killas fixed for our cattle and attacked on our home. Three persons namely Safdar Ali, Muhammad Aslam son of Sultan and Gias son of Saleem received injuries at the hands of complainant party but this fact was suppressed by the complainant party.
Shahid Pervaiz deceased tried to fire at me but during scuffled deceased accidentty received fire- arm injury. During the course of successive investigation it was also found that complainant party was aggressor."
The appellant opted not to appear under Section 340(2) of Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him by the prosecution, however, he produced copy of MLR No, 476 of 2008 of Muhammad Safdar Ex.DA, MLR No, 477 of 2008 of Ilyas Ex.DB and MLR No, 478 of 2008 of Muhammad Aslam Ex.DC, in his defence.
6. After conclusion of the trial, the appellant was convicted and sentenced as noted hereinabove, by this learned trial Court, hence this criminal appeal before this Court. Whereas the learned trial Court acquitted co-accused namely Muhammad Saleem and Yasir Aslam by giving them the benefit of doubt.
7. Learned counsel for the appellant contends that the time and place of occurrence is not proved; that eye-witnesses of the case are not only inter se related but they are inimical towards the appellant; that injuries on the person of Mst. Shagufta Bibi (PW.2) and Babar Masih alias Kalu (PW.3) are not stamp of their being truthful witness; that according to the facts and circumstances of the case the witnesses were not present at the scene of occurrence and the statements made by them are nothing but pack of lies; that prosecution witnesses are interested witnesses and no independent witness has been produced; that the inquest report and the site-plan belies the story of the prosecution; that the medical evidence is in conflict with the ocular account; that recovery is inconsequential as no crime empty was recovered from the spot; that on the same set of evidence, the co-accused of the appellant have been acquitted by the learned trial Court; that it was not the case of premeditation but one of sudden provocation; that the prosecution has failed to prove the motive of the case; that the appeal in hand may be accepted and appellant may be acquitted of the charge.
8. Conversely, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant has argued that the appellant is specifically named in the FIR with specific role of causing injuries on the person of deceased as well as Mst. Shagufta Bibi (PW.2) and Babar Masih alias Kalu (PW.3). Goes on to maintain that the case was registered on real facts that the appellant committed the brutal murdered of an innocent person. It is further contended that the complainant and the injured PW who witnessed the occurrence are resident of same vicinity as such, there is no chance of false implication of accused; that substitution is a rare phenomenon in our society; that the medical history is in consonance with the ocular account. The recovery of crime weapon further lends support to the prosecution case; that prosecution has proved its case beyond shadow of any doubt; that this appeal may be dismissed. While addressing his arguments on Crl. Revision No, 29 of 2010, learned counsel for the complainant contends that sentence of the appellant be enhanced in the circumstances of the case from life imprisonment to death.
9. I have heard learned counsel for the appellant and the learned Deputy District Public Prosecutor assisted by learned counsel for the complainant and gone through the record with their able assistance.
10. In order to prove the ocular account the prosecution produced Sadiq Masih, complainant (PW.1), Mst, Shagufta Bibi, injured (PW.2) and Babar alias Kalu, injured (PW.3). Admittedly, it was daylight occurrence. The said witnesses had sufficiently explained the mode and manner of occurrence, place of occurrence, locale of injuries sustained by the deceased as well as the injured PWs and kind of weapon used by the appellant. All the eye-witnesses have categorically stated before the learned trial Court that it was only the appellant who caused injuries on the person of deceased as well as the injured persons while equipped with .12-bore gun and the injuries caused by the appellant on the person of deceased proved fatal and left no room for his survival. It was only the appellant, who is responsible for committing the Qatl-e-Amd of deceased Shahid Pervaiz and caused injuries on the persons of injured on a petty matter of fixing of wooden killas. Mst. Shagufta Bibi (PW.2) is the wife of the complainant Sadiq Masih (PW.1) whereas, Babar Masih alias Kalu is the close relative of deceased; both are natural witnesses and they have furnished full explanation for their presence at the place of occurrence at the relevant time and the injuries sustained by Mst.
Shagufta Bibi, injured (PW.2) and Babar Masih alias Kalu, injured (PW.3) stamps their presence at the relevant time. All the witnesses were subjected to lengthy cross-examination by the defence but all of them remained consistent on each and every .material aspect and successfully gave reply to all the questions put to them by the defence. Babar Masih alias Kalu, injured (PW.3), who had received injuries at the hands of the appellant fully supported the version of the prosecution and the defence remained fail to shatter the credibility of said injured PW. There is no earthly reasons to disbelieve the testimonies of the aforementioned PWs , and lead the Court to an irresistible conclusion that the prosecution has been able to prove its case against the appellant beyond any reasonable shadow of doubt and there is no ambiguity left in my mind that it was the appellant, who had committed Qatl-e-Amd of deceased Shahid Pervaiz and injured Mst. Shagufta Bibi (PW.2) and Babar Masih alias Kalu, injured (PW.3).
11. The medical evidence was furnished by Doctor Khalid Javed (PW.12), who had conducted the post-mortem examination of the deceased and found ante-mortem fire-arm injuries on the body of deceased Shahid Pervaiz. Whereas Mst. Shagufta Bibi, injured (PW.2) and Babar Masih alias Kalu, injured (PW.3) were medically examined by Kanwal Naeem Bari, WMO (PW.8) and Doctor Sikandar Bakhat (PW.13) respectively, I have observed that the medical evidence had fully supported the ocular account furnished by the prosecution in shape of statements of Mst. Shagufta Bibi (PW.2) and Babar Masih alias Kalu (PW.3), who stated that the deceased Shahid Pervaiz as well as themselves, had received fire-arm injuries at the hands of the appellant and his co-accused, thus, the medical evidence by any stretch of imagination is absolutely in line with the ocular account. In the backdrop of such a situation, I have noticed that the statement of the above said doctors made before the trial Court although subjected to cross-examination by the defence but nothing helpful to the defence could be extracted from the same. The ocular evidence of the prosecution about the kind of weapon used during the occurrence and the time of incident as narrated by the eye-witness of the occurrence has fully tallied with the medical evidence.
12. As regards recovery of crime weapon .8 mm rifle at the instance of the appellant and positive report of Forensic Science Laboratory, Lahore Ex PR, I have noticed that the crime empty was secured from the place of occurrence on 03-01-2008, the appellant was arrested in this case on 16-01-2008 and the gun .8 mm rifle was allegedly recovered at his instance on 30-01-2008, whereas crime empty and .8 mm rifle were sent together to the said Laboratory on 01.03.2008 that too after the arrest of the appellant.
It is by now a well-established proposition of law that if the crime empty is sent to A the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the case of Jahangir vs. Nazar Zand and another (2002 SCM R 1986), Israr Ali v. The State (2007 SCM R 525) and Ali Sher and others v. The State (2008 SCM R 707). In Israr Ali's case, the Hon'ble Supreme Court of Pakistan has observed that when the crime empties are sent to Forensic Science Laboratory with delay, the recovery of the same does not provide strong corroboration qua the prosecution version. In this way, recoveries are inconsequential to the prosecution case.
13. So far as the motive part of the occurrence is concerned, I have observed that the complainant in his statement (Ex.PA) disclosed the motive behind the occurrence as a quarrel on the issue of fixation of killas but no such killas were taken into possession. Neither any proof of ownership of property or demarcation report is exhibited during the trial nor any evidence was led by the prosecution to prove the same. It is not clear that what actually proceeded just before the occurrence and the same shrouded in mystery even otherwise as observed above, the present appellant had no previous enmity with the complainant party as they are neighbours. In this view of the matter, I am of the considered opinion that the prosecution remained fail to prove the motive part of the occurrence.
14. The question arises that whether evidence of prosecution can be disbelieved against some of the accused and same can be relied upon against the other accused. I answer this question in affirmative because RULE OF FALSUS IN UNO FALSUS IN OMNIBUS is not applicable in prevalent system of criminal administration of justice and more so there is no rule having universally applicable that where some accused were/are not found guilty the other accused would ipso facto stand acquitted because the Court has to sift grain from chaff. In this regard we refer an observation of the Hon'ble Supreme Court in the judgment reported as Muhammad Zaman vs. The State and others (2014 SCM R 749) and Khadim Hussain us. T/ State (2010 SCM R 1090)", in the following words: "In fact a futile exercise appears to have been made to press into service the doctrine of "falsus in unofalsus in omnibus (false in one thing, false in all), which is admittedly not applicable in prevalent system of criminal administration of justice and moreso there is no rule having universally applicable that where some accused were not found guilty the other accused would ipso fact stand acquitted because the Court has to sift the grain from chaff. Sumano v. State (1973 SCM R 162). There is no cavil to the proposition that the rule that the that the integrity of a witness is indivisible, despite its moral virtue, has not been Andorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal applications. In the last analysis, as stated in some of the eminent judicial decisions, the grain has to be shifted from the Chaff in each case. In the light of its owner peculiar circumstances Riaz Hussain v. The State (2001 SCM R 177).
15. The upshot of the above discussion is that the appellant is specifically nominated for committing the murder of Shahid Pervaiz (deceased) and for causing injuries to Babar Masih alias Kalu (PW.3). It is the case of the prosecution that the appellant was armed with gun and fired upon the deceased as well as the injured. Due to the said firing Shahid Pervaiz (deceased) succumbed to the injuries at the spot 'whereas Babar Masih alias Kalu, injured (PW.3) sustained injuries. The parties were neighbourers, hence, there was no mistaken identity in this case. The matter was promptly reported to the police and prior to that the injured was shifted to the hospital. The medical evidence gave full support to the ocular account. No reason for his false implication or substitution has been found, therefore, I am of the considered view that the prosecution has established its case against the appellant beyond any shadow of doubt and find no ground for interference in the conviction recorded against him under Sections 302/34 and u/S. 324/34 PPC for committing intentional murder of Shahid Pervaiz, deceased and causing injuries on the body of Babar Masih alias Kalu, injured (PW.3).
16. In light of above discussion and having guidance from the esteemed judgment passed by the Hon'ble Supreme Court of Pakistan in cases of Muhammad Nisar v. The State (2006 SCM R 161) and Muhammad Nadeem alias Deemi vs. the State (2011 SCM R 872). I am of the considered view that even if the evidence of recovery of crime weapon at the instance of appellant and motive is excluded even then the prosecution, has successfully proved its case against the appellant to the extent of murder of Shahid Pervaiz alias Sarfraz. through confidence inspiring ocular account furnished by Sadiq Masih, complainant (PW.1), Mst. Shagufta Bibi, injured (PW.2) and Babar Masih alias Kalu, injured (PW.3), which is strongly corroborated by medical evidence, that led the Court to an irresistible conclusion that the trial Court has rightly convicted the appellant through the impugned judgment.
17. Now adverting to the quantum of sentence passed against the appellant, in this context, I may observe here that it is well recognize principle by now that accused is entitled for benefit of an extenuating circumstance, if any, while deciding the quantum of his sentence. The prosecution failed to prove the motive part of the occurrence as discussed in preceding Para No, 13 of the judgment. Moreover, I have held the recovery as inconsequential. Furthermore, co-accused of the appellant has been acquitted on the same set of evidence. All these factors are taken as mitigating circumstances in favour of the appellant, thus, due to this fact the learned trial Court was well justified for not awarding capital sentence to the appellant. I, too have no option to differ with the conclusion arrived at by the learned trial Court. I would like to place reliance in this regard upon the case of Sharafat Ali Khan vs. The State (2010 SCM R 1205) wherein, the Hon'ble Supreme Court has observed as under: "In Muhammad Riaz and another v. The State (2007 SCM R 1413), while considering the penalty for an act of commission of qatl-e-amd it was observed "No doubt, normal penalty for an act of commission of qatl-e-amd provided under the law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case. Reference in the contest may also be made to Iftikhar Ahmad Khan vs. Asghar Khan and another (2009 SCM R 502)."
In view of all above, I am of the considered view that the learned trial Court has rightly convicted and sentenced the appellant under Section 302 (b) PPC and awarded him life imprisonment. I do not find any good reason to differ with the judgment passed by the evidence available on the record and is in accordance with the principles of appreciation of evidence set down by Hon'ble Supreme Court of Pakistan in this regard. The sentence of appellant under Section 324/34 PPC, for causing injuries to the prosecution witness namely Babar Masih alias Kalu, injured (PW.3) is also maintained. The sentences will be run concurrently; punishment of fine/compensation or in default of payment thereof are maintained. Benefit of Section 382-B Cr.P.C. will also be available to the appellant. I, therefore, uphold the conviction and sentence passed against the appellant, resultantly, this criminal appeal filed by the appellant is dismissed.
18. In light of above findings in Criminal Appeal No, 16 of 2010, Criminal Revision No, 29 of 2010 filed by Sadiq Masih, complainant is also dismissed.