SARDAR MUHAMMAD SHAMIM KHAN, J.---The instant appeal was filed by Zeeshan alias Manna convict (appellant) against the judgment dated 29.04.2014 passed by learned Addl. Sessions Judge, Sialkot, whereby, appellant was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life as Ta'zir along with compensation of an amount of Rs,2,00,000/- ( Rupees Two lacs only) payable to the legal heirs of Muhammad Ishaq deceased, in default thereof, to further undergo six months S.I, in case FIR No,23/2007 dated 11.01.2007 offence under section 302, P.P.C. registered at Police Station Hajipura District Sialkot.
2. Brief facts of prosecution story, according to the complaint (EX.PA) are that three days prior to the instant occurrence an altercation took place between Muhammad Ishaq deceased and Zeeshan alias Manna accused but respectables of the locality got compromise effected between them. On 11.01.2007 at night time the complainant, his son Muhammad Ishaq and other family members were present at the house. In the meanwhile, Zeeshan alias Manna accused came over there and called his son Muhammad Ishaq and took, him (Muhammad Ishaq) in his company. Niaz Ahmed complainant ( since died) also chased them whereas, PWs Shabbir Ahmed ( since died) and Muhammad Zulfiqar met him in the street and they also accompanied him (complainant). At about 10:30 p.m, when they reached near the ladies Eid-Ghah Opposite Water Motor, accused Zeeshan pulled out his pistol from his 'dub' and made fire on the person of Muhammad Ishaq which landed on the backside of his head and said fire crossed from his left eye. Muhammad Ishaq fell down on the ground in an injured condition whereas accused Zeeshan made good his escape from the place of occurrence while raising lalkaras'. The complainant and P.Ws took Muhammad Ishaq to civil hospital in an injured condition but he succumbed to the injuries on the way. On the basis of an application submitted by Niaz Ali complainant, formal FIR EX.PA/1 was registered.
3. It is pertinent to mention here that Zeeshan accused was declared juvenile by the learned trial court vide order dated 06.02.2014, therefore, his trial was conducts is under Juvenile Justice System Ordinance 2000 by learned trial court. Zeeshan accused absconded himself, therefore, initially report under section 512, Cr.P.C. was submitted against the appellant before the learned trial court.
The learned trial Court after recording the examinationin-chief (statements) of P.W-1 Niaz Ali complainant( since died) PW2 Shabbir Ahmad ( since died) and other P.Ws in the absence of the accused, directed the office to consign the file of instant case to the record room till the arrest of Zeeshan accused.
4. After the arrest of Zeeshan accused complete challan was submitted before the learned trial court for trial. Formal charge against the accused/appellant was framed to which, he pleaded not guilty and opted to be tried. In order to prove its case, the prosecution examined following thirteen witnesses.
PW-1, Dr. Muhammad Abbas Qari conducted postmortem examination on the dead body of Muhammad Ishaq deceased and found the following injuries on his person.
1. Left eye was full lost. All the area of eye socket was fully crushed and heavily bled. This was the exit world of injury No,2.
2. A rounded wound of entry about 1:00 cm in diameter on the right side of occipital area of head.
According to the opinion of the doctor, injury No,1 was the result of injury No,2 and this injury was sufficient to cause death in ordinary course of nature. Injury was ante-mortem and was caused by firearm. The probable time between injuries and death was instantaneous and between death and post mortem examination was 5 to 7-hours:-- PW-2, Muhammad Khalid 419/HC kept the sealed parcel said to contain pistol 30-bore in Malkhana.
PW-3 Waris Ali 869/C transmitted the sealed parcel said to contain pistol 30-bore to the office of Punjab Forensic Science Agency, Lahore.
PW-4 Muhammad Khalid 686/C escorted the dead body of the deceased to mortuary of Govt.
Sardar Begum Hospital Sialkot.
PW-5 Zulfiqar is the witness of ocular account.
PW-6 Qamar Zia ASI/Duty Officer chalked out formal FIR EX.PA/1 on the basis of complaint Ex.P.A sent to him by Muhammad Akram Sub-Inspector through Saif Ali constable.
PW-7 Muhammad Ismail identified the dead body of Ishaq deceased before the medical officer at the time of his postmortem examination.
PW-8 Muhammad Jafar is the witness of recovery of pistol 30-bore along with two live bullets from the possession of the appellant.
PW-9 Saif Ullah 1455/HC kept the sealed parcels said to contain blood-stained cotton in Malkhana.
PW-10 Fida Hassan 1188/C executed the non-bailable warrants of arrest (Ex.PJ) of accused Zeeshan alias Manna.
PW-11 Muhammad Shabbir Sub-Inspector conductedthe investigation of this case.
PW-12 Muhammad Akram Inspector also conducted the partial investigation of this case.
PW-13 Atta Ullah 20971/HC transmitted the sealed parcel said to contain blood-stained cotton to the office of chemical examiner Lahore.
5. The prosecution gave up P.Ws Muzaffar Hussain 594/C, Zohaib Chand and Muhammad Yousaf being un-necessary whereas Niaz Ali (complainant) and Shabbir Ahmad Sharif P.W were given-up by prosecution being dead and closed the prosecution evidence after tendering in evidence the report of Chemical Examiner as well as report of Punjab Forensic Science Agency Lahore as EX.P.Q and EX.PR respectively.
6. After recording the prosecution evidence, the appellant was examined under section 342, Cr.P.C. wherein he denied the allegation levelled against him by the prosecution. The accused/appellant neither produced any defence evidence nor opted to depose on oath as required under section 340(2), Cr.P.C. In reply to the question that why, this case was against you and why the PWs have deposed against you, appellant stated as under:-- All the PWs are related inter se and interested witnesses. In fact deceased was a vagabond and addicted person. Prior to the occurrence, father of the deceased who belonged to Gujjar family asked the hand of my sister for his deceased son but my father refused it. The complainant become annoyed with my family on my father's refusal. The occurrence took place at the odd hour of night in a deserted place by some unknown dacoits. The complainant and PWs after deliberation and consultation falsely implicated me in the instant case due to previous family grudge and on the basis of suspicion."
7. Learned counsel for the appellant contended that Zeshan alias Mana appellant has falsely been implicated in the instant case on the basis of mala fides; that occurrence took place at odd hours of winter night in a deserted area; that motive behind this occurrence as alleged by the complainant in the FIR was that three days prior to the instant occurrence an altercation took place between Muhammad Ishaq deceased and Zeeshan alias Mana appellant but matter was settled between the parties on account of intervention of respectables of the locality and thereafter on account of this grudge, appellant committed the murder of Muhammad Ishaq deceased by summoning him from his house; that in the background of such motive it was highly improbable that Niaz Ali complainant allowed his son Muhammad Ishaq to accompany Zeeshan alias Manna accused at odd hours of winter night; that infact some unknown dacoits committed the murder of Muhammad Ishaq son of the complainant ;that neither the complainant and P.Ws were present at the place of occurrence at the relevant time nor they witnessed the instant occurrence ; that complainant and P.Ws have falsely implicated the appellant in the commission of instant occurrence by substituting the real accused on account of previous enmity between the parties; that P. Ws are related inter se and are chance witnesses whose testimony could not be believed for recording of conviction and sentence against the appellant; that Niaz Ali complainant and Shabbir Ahmad P.W died during the trial and their statements were recorded by learned trial court under section 512, Cr.P.C. in absence of the appellant, therefore, same cannot be used as evidence against him (appellant); that postmortem examination on the dead body of deceased was conducted with extraordinary delay of six hours after the occurrence ; that allegedly appellant made fire on the backside of head of Muhammad Ishaq from a close range but no burning and blackening was present there; that learned trial court did not deal with the case of the appellant judiciously and passed the impugned judgment merely on the basis of conjectures and surmises; that prosecution failed to prove its case beyond reasonable doubt against the appellant. Thus, it is submitted that by accepting this appeal, impugned judgment passed by learned trial court may be set aside and appellant may be acquitted of the charge.
8. Learned counsel for the complainant and learned DPP have vehemently opposed this appeal on the grounds that Zeeshan alias Mana appellant was nominated in the promptly lodged FIR; that there was specific allegation against him that he made fire on the person of Muhammad Ishaq which landed on the backside of his head and same crossed through his left eye; that ocular account furnished by the prosecution qua the allegation against the appellant is in line with the medical evidence of Muhammad Ishaq deceased; that appellant remained proclaimed offender for a period of about six years; that although Niaz Ali complainant and Shabbir Ahmed P.W. died during the trial yet their examination-inchief under section 512, Cr.P.C. was recorded by learned trial court as P.W-1 and P.W-2 respectively wherein they fully implicated the appellant in the commission of murder of Muhammad Ishaq deceased; that examination-in-chief of the complainant (since dead) and Shabbir Ahmed P.W (since dead) recorded by learned trial court in the absence of the appellant can validly be used as evidence against him ( appellant); that Zeeshan alias Manna is sole accused in this case; that prosecution has. proved its case against the appellant beyond reasonable doubt by producing cogent and convincing evidence; While relying on case laws reported as Mawas Khan v. The State and another (PLD 2004 Supreme Court 330) and Mir Dad v. The State (1985 PCr.LJ 881 Peshawar) it is submitted that instant appeal is liable to be dismissed.
9. I have heard the arguments advanced by learned counsel for the parties, learned DPP and perused the available record with care.
10. It has been noticed that instant occurrence took place on 11.01.2007 at about 10:30 p.m. (night) whereas matter was reported to the police at about 11:15 P.M. (night), within. 45-minutes after the occurrence. Zeeshan alias Manna appellant is nominated in the promptly lodged FIR with specific role of causing firearm injury on the backside of head of Muhammad Ishaq deceased. The eyewitnesses have also been mentioned in the said FIR. Such promptly lodged FIR excludes chances of consultations and deliberations.
11. The motive behind this occurrence as narrated by Niaz Ali complainant (P.W-1) was that three days prior to the instant occurrence an altercation took place between Muhammad Ishaq deceased and Zeeshan alias Manna accused and matter was settled between the parties through respectables of the locality but Zeeshan alias Manna appellant entertained grudge in his mind that why Muhammad Ishaq son of the complainant had quarreled with him.
12. Zeeshan alias Manna appellant remained P.C. for the period of about a years, therefore, initially challan under section 512, Cr.P.C. was submitted against the appellant before the learned trial court. On 29.06.2007 and 11.07.2007 the examination-in-chief of Niaz Ali complainant ' and Shabbir Ahmed (eye-witnesses) was recorded by learned trial court as P.W-1 and P.W-2 respectively in absence of the accused. The aforesaid P.Ws in their respective statements categorically deposed regarding motive part of the prosecution story by contending that three days prior to the instant occurrence an altercation took place between Muhammad Ishaq and Zeeshan alias Manna but the matter was settled between the parties through respectables of the locality. It was further submitted by both the P.Ws that appellant had grudge in his mind that why Muhammad Ishaq had quarreled with him (appellant) and when the appellant made good his escape from the place of occurrence after resorted to firing at the deceased he raised lalkara' that he had taught a lesson to Ishaq for insulting him and quarreling with him. Zulfiqar P.W appeared before the learned trial court as P.W-5 who deposed that Zeeshan alias Manna appellant threatened Muhammad Ishaq deceased that he would teach a lesson for his insult. The contention of learned counsel for the appellant that on account of said motive it was highly improbable that Niaz Ali complainant allowed his son Muhammad Ishaq to accompany Zeeshan alias Manna accused at odd hours of winter night is without force because although matter was settled between the parties by the intervention of respectables of the locality yet appellant entertained grudge in his mind and committed the murder of Muhammad Ishaq on account of aforesaid motive. It is also in the evidence that after inflicting firearm injury on the person of the deceased, Zeeshan alias Manna appellant raised lalkara that he had taught a lesson to Ishaq for insulting him and quarreling with him. Even other-wise motive is always in the mind of the accused. In these circumstances, prosecution has proved the motive part of its story against Zeeshan alias Manna appellant.
13. The ocular account in this case has been furnished by Niaz Ali P.W-1 (complainant since dead), Shabbir Ahmed P.W-2 (since dead) and Zulfiqar P.W-5. The examination-in-chief of Niaz Ali and Shabbir Ahmed was recorded under section 512, Cr.P.C. in the absence of the accused which were transferred to the file of instant case as an evidence against the appellant by learned trial court vide order dated 10.04.2014. All the eye-witnesses (Niaz Ali complainant since dead, Shabbir Ahmed since dead and Zulfiqar) have fully supported the prosecution's version as narrated by the complainant in FIR Ex.P.A/1. All the aforesaid eye-witnesses in their respective statements deposed that when they reached near ladies Eid Gah, the appellant threatened Ishaq that he would teach him a lesson for his insult and thereafter the appellant took out his pistol from his 'dub' and made a fire which hit him (Muhammad Ishaq) on the back side of his head. Muhammad Ishaq fell down on the ground whereas appellant made good his escape from the place of occurrence while raising `lalkara' that he had taught a lesson to Ishaq for insulting him and quarreling with him.
Muhammad Ishaq was taken to civil hospital in an injured condition but he succumbed to the injuries on the way.
14. Although Niaz Ali complainant is real father of Muhammad Ishaq deceased, Zulfiqar P.W is cousin of Muhammad Ishaq deceased whereas Shabbir P.W is maternal uncle of deceased yet they are not inimical to the appellant, therefore, their testimony cannot be discarded merely on account of their relationship with Muhammad Ishaq deceased, rather, they are natural witnesses and their evidence is confidence inspiring and trust worthy. Although, occurrence took place at night time yet the P.Ws have given the source of identification by stating that they identified the appellant at the spot in the light of electricity 'bulb'. Perusal of evidence of aforesaid P.Ws reveals that they remained consistent on all material points and there was no discrepancy in their evidence. They have given full details of occurrence leading to the murder of Muhammad Ishaq deceased at the hands of the appellant. Zulfiqar P.W-5 was cross-examined by learned defence counsel at length but defence failed to shatter the evidence of said eye-witness.
15. Zeeshan alias Manna is single accused in this case. It cannot be expected from Niaz Ali complainant, who is father of Muhammad Ishaq deceased that he would let off the real culprit and would falsely involve appellant in the murder of his real son in the absence of enmity between them Substitution in such situation is rare phenomenon.
16. The ocular account furnished by the prosecution also finds corroboration from the medical evidence of the deceased. In order to prove the injuries on the person of Muhammad Ishaq deceased prosecution produced Dr. Muhammad Abbas Qari (PW-1) who conducted post mortem examination on the dead body of Muhammad Ishaq deceased. The doctor observed two fire arm injuries on the person of the deceased. Injury No,1 on left eye of the deceased is an exit wound of injury No,2 whereas doctor observed injury No,2 on right side of occipital area of head of the deceased. Injury No,2 was declared the cause of death of Muhammad Ishaq deceased, which was ante mortem in nature and caused by firearm. According to the opinion of doctor, bullet while passing through the brain crushed it and also led to heavy internal and external hemorrhage leading to shock, deep coma and instantaneous death. The probable time between injuries and death was instantaneous and between death and post mortem examination was 5 to 7-hours, therefore, medical evidence of Muhammad Ishaq deceased corroborates the seat of injury, weapon used by the appellant and establishes the time of occurrence. The medical evidence of the deceased is in line with the ocular account furnished by the prosecution.
17. So far as the contention of learned counsel for the appellant that Niaz Ali complainant and Shabbir Ahmad P.W died during the trial and their examination-inchief was recorded under section 512, Cr.P.C. by the learned trial court in absence of the appellant and that said P.Ws. were not cross-examined by learned defence counsel, therefore, same cannot be used as evidence against him (appellant) is without force because Zeeshan alias Mana appellant remained P.O. for a period of about six years and report under section 512, Cr.P.C. was submitted against him before the learned trial court. The learned trial court after fulfilling the requirements under the law, conducted the proceedings in this case in absence of the accused and recorded the examination- inchief of seven witnesses including Niaz Ali as P.W-1 and Shabbir Ahmed as P.W-2. The learned trial court after conducting the proceedings in accordance with law, directed the office to consign the file to the record room till the arrest of the accused. On 20.12.2012 when the accused was arrested by the police, the aforesaid two witnesses had already been died, therefore, prosecution did not produce the aforesaid two P.Ws before the learned trial court at the time of trial. Their statements recorded under section 512, Cr.P.C. were transferred as an evidence in the instant case by the learned trial court vide order dated 10.04.2014 on the application submitted by learned DDPP which has become the part of instant file, therefore learned trial court rightly relied upon the statements of aforesaid two P.Ws. keeping in view the provisions of section 512(1), Cr.P.C. which is reproduced as under:-- Record of evidence in absence of accused:
(1) "If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or send for trial to the court of Session or High Court such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead".
The case laws referred to by learned counsel for the complainant are very much clear on this point.
The other contention of learned counsel for the appellant is that allegedly appellant made fire on the backside of head of Muhammad Ishaq from a close range but no burning and blackening was present there is also not believable as this fact has not been brought on record in the evidence of any of the prosecution witness.
18. It is pertinent to mention here that Zeeshan alias Manna appellant took specific plea in his defence that Muhammad Ishaq deceased was murdered by unknown dacoits during the wardat of dacoity in the darkness H of night but said plea taken by the appellant was not proved by him during the trial. It was the duty of the appellant to prove the said plea taken by him in his defence keeping in view the provisions of Article 121 of Qanun-e-Shandat Order, 1984 but needful has not been done by him. In this regard reliance has been placed on case law reported as Anwar Shamim and another v. The State (2010 SCMR 1791).
19. Although pistol along with two live bullets (P-7/1-2) was taken into possession by the police vide recovery memo EX.P.G from the residential house of the accused on his pointation yet as no crime empty was secured by the police from the place of occurrence, therefore, alleged recovery of pistol is inconsequential and is not a corroborative piece of evidence against the appellant because nothing has been matched with the pistol allegedly recovered on the pointation of the accused from his residential house after the period of six years but recovery is only corroborative piece of evidence and same is not fatal for the prosecution's case.
20. For what has been discussed above, I have no hesitation in holding that prosecution has proved its case beyond reasonable doubt against the appellant in the shape of motive part of the prosecution story as well as ocular account corroborated by medical evidence, therefore, appellant was rightly convicted by the learned trial Court under section 302(b), P.P.C. and sentenced to imprisonment for life along with compensation of an amount of Rs,2,00,000/- payable to the legal heirs of the deceased which in my view is based on well settled principles of appreciation of evidence. Thus instant appeal having no force stands dismissed.