MRS. RASHIDA ASAD, J.---Ghulam Qadir appellant was tried by VI-Additional Sessions Judge, Karachi South in Sessions case No.323 of 2012 arisen out of Crime No. 126/2012 registered at P.S Preedy under section 302, P.P.C. vide judgment dated 29.11.2017, under section 302, P.P.C. and sentenced to imprisonment for life and to pay fine of Rs.100,000/-. In case of default he was ordered to suffer six months' S.I more. Benefit of section 382-B, Cr.P,C. was also extended to the appellant.
2. Brief facts of the prosecution case as narrated by the complainant SIP Mureed Hussain in FIR are that on 02.03.2012 he was present on his duty along with subordinate staff while posted at 15 (Madadgar) South. After briefing the staff he remained present in the container with PCs Shah Muhammad, Faraz Khan, Muhammad Akhtar and Sated Iqbal while PCs Faheem Akhtar and Ghulam Qadir went down. On hearing of sudden firing, he along with staff came out of the container and saw PC Faheem Akhtar lying on the road in injured condition whereas, PC Ghulam Qadir was standing close to him, holding his SMG. On asking, PC Ghulam Qadir replied that it happened all of a sudden by mistake. He handed over the custody of PC Ghulam Qadir to another police constable and referred PC Faheem Aklnar to JPMC In a rickshaw with PCs Shahid and Sarfaraz. SIP Muhammad. Akram Khokhar along with staff arrived in police mobile, arrested the accused Ghulam Qadir, took his official SMG No.47451, loaded magazine 16, live bullets and also secured 04 empties from the spot.
Thereafter, the complainant went to JPMC to see PC Faheem Akhtar. SIP. Muhammad Akram Khokhar also reached there. PC Faheem Akhtar succumbed to his injuries on way to hospital. SIP Muhammad Akram completed the legal formalities. PC Faheem Akhtar received two bullet shots.
3. On completion of investigation, the appellant was charge sheeted to which he did not plead guilty and claimed trial.
4. At the trial, prosecution examined P.W-1 Complainant SIP Mureed Hussain at Ex.3, P.W-2 PC Shahid Muhammad at Ex.6, P.W-3 SIP Muhammad Akram at Ex.8, P.W-4 PC Naeem Akhtar at Ex.11, P.W-5 Inspector Abdul Fateh at Ex.12 and P.W-6 Abdul Razzaq (OSD of Health Department/MLO) at Ex.13, who produced the relevant documents/reports before the Trial Court. Thereafter, prosecution closed its' side for evidence.
5. Statement of accused was recorded under section 342, Cr.P.C. at Ex.15. Accused claimed his false implication in the present case and professed innocence, however, he declined to give statement on oath in disproof of the prosecution allegations. No evidence has been led in defence. The trial concluded in conviction and sentenced of the appellant as mentioned above, which has been questioned through this appeal by the appellant.
6. Learned counsel for the appellant mainly contended that there is no credible direct evidence and the case of prosecution is hinged upon various pieces of circumstantial evidence; that no circumstantial evidence has been brought on record by the prosecution to connect the present appellant with the commission of the alleged crime; that prosecution witnesses have improved their statements and there are several material contradictions in their evidence; that recovery of the alleged weapon has been made in violation of the mandatory provision of section 103, Cr.P.C.; that there is five days delay in sending the SMG and recovered bullets/empties to the expert for which no plausible explanation has been furnished by the prosecution; that Rickshaw driver, who was the best witness to prove the charge, was not arrayed as a witness; that positive report of the Forensic Expert would not improve the case of the prosecution, for want of evidence of the safe custody and safe transmission of the weapon and empties to the Forensic Expert; that in this case no ,motive has been alleged by the prosecution, He prayed for acquittal of the appellant.
7. Learned Deputy Prosecutor General argued that incident had occurred at night time when appellant caused fire arm injuries to deceased; that SMG recovered from the possession of the accused along with empties was sent to the Forensic Expert and positive report was received; that accused was arrested on spot with crime weapon and as per postmortem report due to gun shots deceased became injured and he succumbed to his injuries; that ocular evidence of complainant is supported by the medical evidence produced by MLO; that prosecution has fully proved its' case beyond any shadow of doubt. Learned DPG prayed for dismissal of the appeal.
8. I have heard the learned counsel for the appellant, learned DPG and have gone through the impugned judgment as well as record of the case.
9. The fact that deceased Muhammad Faheem died unnatural death by means of fire arm injuries, is not disputed. Now, I would discuss the evidence of the medical officer, who conducted the postmortem examination of deceased. P.W-6 Dr. Abdul Razzaq has deposed that on 02.03.2012, he was posted as MLO at JPMC, Karachi, one dead body of Muhammad Faheem was brought in the hospital by SIP Akram Khokhar. He examined deceased Muhammad Faheem and found following injuries on his person: i) Fire arm 4 cm x 1 cm, back of right lower chest showing wound of entry. ii) Fire arm 5.5 cm x 1.5 cm back of left lower chest showing wound of exit. iii) Fire arm 3 cm x 1 cm blow right scapula showing wound of entry. iv) Fire arm 0.5 cm x 0.5 cm mid of left chest below nipple showing wound of exit.
Cause of death as disclosed by the MLO was cardio respiratory failure due to shock and hemorrhage resulting from fire arm.
10. In the cross-examination, the efficiency and integrity of the MLO has not been questioned, therefore, I have no hesitation to hold that deceased died unnatural death as described by the medical officer.
11. It is prime duty of prosecution to prove its case against the accused beyond any shadow of doubt. I have gone through the evidence of the prosecution. Complainant SIP Mureed Hussain in his evidence stated that on 02.03.2012, he was posted at 15 (Madadgar) South, where he was on duty along with his subordinate staff.
Suddenly, they heard firing, and came out from the container, they saw that P.C. Ghulam Qadir having Rifle in hand was standing near police mobile stationed there and P.C. Faheem Akhtar was lying on the road in injured condition. Injured P.C. Faheem enquired from P.C. Ghulam Qadir as to why did shoot him. In response, P.C.
Ghulam Qadir replied that it was done mistakenly all of a sudden. He took P.C. Ghulam Qadir in custody and handed over to another P.C. He referred P.C. Faheem Akhtar in precarious condition in a Rickshaw to J.P.M.C. with P.Cs Shahid and Sarfaraz. Thereafter, on Wireless message, he informed/called police mobile of P.S Preedy. SIP Muhammad Akram Khokhar arrived in police mobile and complainant handed over the custody of P.C. Ghulam Qadir along with SMG. Thereafter, he went J.P.M.C. to see PC Faheem Akhtar. SIP Muhammad Akram Khokhar also reached hospital where they came to know that PC Faheem Akhtar had expired. SIP Muhammad Akram examined the dead body, prepared memo and initiated proceedings under-section 174, Cr.P.C., and recorded his statement. In cross-examination, complainant denied the suggestion that accused had not committed murder of deceased.
12. P.W-2, PC Shahid Muhammad deposed that on 02.03.2012, he was posted at 15 (Madadgar) South. The incharge called and briefed them. Thereafter, PCs Ghulam Qadir and Faheem Akhtar left the briefing a bit prior.
After a while, they heard the firing, on which they came out and saw PC Faheem Akhtar was lying on the floor near police mobile. SIP Mureed Hussain arrived there and inquired from PC Ghulam Qadir, who replied that it was done due to mistake without any intention. Injured P.C. Faheem Akhtar was referred to JPMC through a Rickshaw accompanied by him and PC Faraz. Injured P.C. died on way to hospital. SIP Mureed Hussain reached JPMC along with mobile officer of PS Preedy, SIP Muhammad Akram. The latter prepared memo of dead body and initiated proceedings under section 174, Cr.P.C. and recorded statement of SIP Mureed Hussain and two police constables present there. The dead body was sent to Edhi cold storage. In cross-examination, he admitted that he did not see the accused while shooting.
13. P.W-3 Naeem Akhtar, the brother of deceased deposed that on 02.03.2012 at about 0430 hours, his elder brother Naseem Akhtar informed him about the incident. He rushed to PS Preedy where SIP Muhammad Akram disclosed about death of his brother PC Faheem Akhtar, who was shot by PC Ghulam Qadir. He found the accused in lockup, who disclosed him that his brother PC Faheem Akhtar had given him his gun and directed him to shoot. However, SIP Muhammad Akram disclosed to this PW Naeem Akhtar that his deceased brother had MP-5 gun and not SMG. SIP handed over superdginama and recorded his statement. In cross-examination, he admitted that there was no enmity between his deceased brother and accused.
14. P.W-4 Muhammad Akram deposed that on 02.03.2012, he was posted as SIP at PS Preedy and was mobile officer. During patrolling he was directed through W.T message by SIP Mureed Abbasi of 15 Madadgar to approach 15 Chowki. He reached at the spot where SIP Mureed Abbgssi disclosed about the incident and handed over custody of PC Ghulam Qadir, SMG, four empties along with 16 live rounds. He sealed the property at spot and prepared such memo of arrest and recovery in presence of mashirs. He recorded 154, Cr.P.C. statement of SIP Mureed Abbasi. He rushed to hospital where he met MLO. He inspected the dead body lying in the mortuary and prepared such memo and initiated such proCeedings under section 174, Cr.P.C. After postmortem, the MLO handed over the cause of death certificate. He dispatched dead body to Edhi Cold storage. Thereafter, he came at the police station and entered the contents of the statement of SIP Mureed in FIR Book. Inspector Abdul Fateh recorded his statement under section 161, Cr.P.C.
15. P.W-5 Inspector Abdul Fateh has deposed that on 02.03.2012, he received FIR, custody of accused, recovered property, proceedings under section 174, Cr.P.C, memo of arrest;'' recovery and the memo of dead body and other relevant documents for investigation. He further deposed that he visited the place of incident and prepared such memo. He drew the sketch of the wardat, obtained PM report from the concerned MLO and so also dispatched the recovered articles for report. He obtained positive FSL and bio chemical reports. He recorded statements under section 161, Cr.P.C. and after conclusion of the investigation submitted the challan.
16. In order to establish its case, prosecution examined P.W SIP Mureed Hussain who deposed that on the day of incident at 0030 hours, he heard gunshots, came out from the container and saw PC Faheem Akhtar lying on the ground in injured condition whereas PC Abdul Qadir standing near him holding his SMG and said promptly, on asking that it happened all of sudden. The injured was shifted to hospital by PCs Faraz and Shahid but he died on way. Complainant has denied the suggestion during his cross-examination that PC deceased Fahim Akhtar sustained bullet injuries at the hands of some culprits during a bid of robbery. This appears a very weak plea taken by defence as in such eventuality the appellant could have stated this fact instantly to his colleagues and tried to chase the culprits or to rescue his colleague. Even appellant has not taken such plea at the time of recording of his statement under section 342, Cr.P.C. The positive report of the FSL belies such claim of the appellant and supports the case of the prosecution that the deceased died due to gunshot made from the SMG recovered from the possession of the appellant. As regards to the delay in lodging of the FIR is concerned, statement under section 154, Cr.P.C. of complainant was recorded by SIP Muhammad Akram at 0345 hours at Jinnah Hospital and after completing all formalities at hospital he came at police station whereafter the FIR was lodged. No enmity is alleged by the appellant against the complainant or any prosecution witness to falsely involve him in this case. The contention of the learned counsel for the appellant that in spite of the fact that the place of occurrence was a public place, but no witness from the public had been associated and even rickshaw driver, who had taken the injured to hospital has not been examined, is also of no avail. In our society due to lack of civic sense usually people do not have the courage to become witnesses against a crime nor do they want to indulge themselves in the activities resulting in perplexities of investigation/trials etc. It has, therefore, been considered view of the superior Courts that in absence of any kind of enmity or animosity, the A evidence of ' the police is as worthy of reliance as of any other independent witness. The argument of learned counsel for the appellant that deceased was brought at hospital at 0300 appears to be misconceived, as perusal of inquest report shows that examination of dead body was carried out at 0150 hours by SIP Muhammad A., an and according to the postmortem report the MLO started postmortem at 2:40 a.m. and completed it at 3:30 a.m.
Further the arguments of learned defense counsel for shifting the deceased to hospital in a rickshaw in presence of mobile are not crucial in absence of putting any question to prosecution witness about the condition of said mobile or availability of its driver, when the injured who was in precarious condition needed to be shifted immediately.
17. Admittedly, this case is based on circumstantial evidence which has sufficiently been established by the prosecution by producing reliable and cogent evidence, as such, I have no reason to disbelieve it. It is settled principle that accused could be convicted and sentenced on the basis of circumstantial evidence provided no link of chain is found missing and all circumstances must lead to the guilt of accused. Reliance is placed on case of Sh. Muhammad Amjad v. The State (PLD 2003 SC 704). PC Faheem Akthar was done to death by appellant Ghulam Qadir by firing from SMG. The medical evidence also stipulates that the death was result of fire arm injuries. Report of FSL also shows that the empties were matched with the official SMG of appellant.
There was nothing substantial iv the statement of the appellant recorded under section 342, Cr.P.C to discredit such confidence inspiring evidence, the plea has been rightly discarded by the trial Court. The above stated circumstances are, in my opinion, sufficient to establish the charge of murder against the appellant. Learned trial Court rightly came, to the conclusion that the prosecution has proved its case against the appellant beyond any reasonable doubt.
18. It is settled principle of law that while deciding the case pertaining to criminal administration of justice, Court is required to take into consideration the intrinsic value of the evidence instead of laboring unnecessarily to find out such contradictions and improvements in the evidence which ultimately turns to nothing. Reference in this case can be placed on the case of Mushtaq v. The State (PLD 1995 SC 46). Circumstantial evidence corroborates the medical evidence, forensic expert's report as well as chemical examiner's report. Complainant and the witnesses fully supported the case or prosecution while deposing that they saw the accused holding official SMG in his hand near PC Faheem Akthar lying in injured condition on floor.
19. Charge against the accused has been proved against the appellant beyond any shadow of doubt, however, the motive could not be proved by the prosecution during trial, through reliable evidence. A rigorous scrutiny of prosecution evidence suggests that something happened all of sudden that ignited a situation ultimately leading to the homicidal death of the deceased. Therefore, such being the mitigating circumstance makes out a case to convert appellant's conviction from 302.(b), P.P.C. to section 302(c), P.P.C. with reduction to sentence from life imprisonment to 10 years' R.I. The sentence of fine is not provided in section 302(b) or (c), P.P.C., therefore instead of fine of Rs.100,000/-, the appellant is directed to pay Rs.50,000/- as compensation under section 544- A, Cr.P.C. to the legal heirs of the appellant. In case of default, he shall suffer 03 months' S.I. Benefit of section 382-B, Cr.P.C. is also extended to the appellant.
With the above modification, the appeal stands dismissed.