MALIK HAQ NAWAZ, C.J.--- Through this single judgment, we intend to dispose-of f three cases bearing Criminal Appeal No. 14/2019, Criminal Appeal No.12/2019 and Murder Reference No.02/2019 being aftermath of a single incident/occurrence.
2. Criminal Appeal No.12/2019 has been filed by the appellant/convict Sajid Hussain under section 410, Cr.P.C. against the impugned judgment/conviction dated 23.05.2019 passed by the learned Addl. Sessions Judge Gilgit in Sessions Case No.12/2018, wherein the learned Trial Judge has convicted the appellant and awarded capital punishment as under:- "1 Under section 302(b), P.P.C. for committing Qatl-i-Amd of Muhammad Sadoo r son of Juma Khan resident of Chamogarh Tehsil and District Gilgit and passed death sentence. Accused shall be hanged by neck till death.
2. Accused shall also pay Rs.500,-000/- (rupees Five Lac only) as compensa tion under section 544-A, Cr.
P.C. to the legal heirs of deceased and in case of non-payment accused shall undergo six months S.I in addition to main sentence."
Whereas, Criminal Appeal No.12/2019 has been directed by the appellant/convict against the judgment/ conviction dated 23.05.2019 passed by the learned 'Addl. Sessions Judge Gilgit in Sessions Case No.13/2018, whereby the learned Trial Judge has convicted the appellant under section 13 Arms Ordinance, 1965 for possessing unlicenced 30 bore pistol and sentenced to undergo three years rigorous imprisonment.
3. Pithily facts of the case are that on 01.01.2015, one Shafi-ur-Rehrnan, real brother of deceased 'Muhammad Sadoor , submitted a written application to SHO Police Station Airport Gilgit stating therein that his real brother Muhammad Sadoor (deceased) was working as apprentice with mechanic Shezad resident of Nagar for ten years at Suwat Workshop situated at Shaheed Millat Road and his abode was also in the said workshop with other apprentices namely Sajid son of Mohsin, Muhammad Ali son of Faqir residents of Chaparote Nagar and Ghulam Abbas son of Ghulam Raza resident of Jalalabad. On 01.01.2015 at about 5.30 a.m., one Akram son of Gohar Aman resident of Jutial Gilgit conveyed the sad message to the complainant that his brother was murdered at workshop with firearm. The complainant along with other relatives rushed to the hospital where he found his brother dead with fire injury on face. Since the deceased had no enmity with anybody and he has been murdered with deliberate conspiracy to spoil peaceful atmosphere of the locality , the complainant requested to take legal action against the above named workshop apprentices. The nominated accused have also taken away the mobile SIM having number 0312-9729810 of the deceased. On written application (Exh.PW -1/A) of Shafi-ur-Rehman (PW- 1), SI/SHO Abdul Qudoos (PW-10) of Police Station Airport Gilgit drew FIR No.01/2015 under sections 302/34, P.P.C. (Exh.PW -10/A) on the same day at 0700 hours.
4. The investigation of the case was entru sted to SI/SHO Abdul Qudoos. He commenced investigation of the case and arrested all the suspected persons namely Shehzad son of Ibrahim resident of chalt Nagar , Ghulam Abbas son of Ghulam Raza resident of Jalalabad, Muhammad All son of Faqir Ali and Sajid Hussain son of Mohsin Ali residents of Chaparote Nagar . During interrogation of above-named suspected persons, it was ascertained that in the night of occurrence accused Sajid Hussain had fired at the deceased Muhammad Sadoor with 30 bore pistol and the occurrence has been witnessed by Muhammad Ali and Ghulam Abbas (PW-12), on which the SI/I0 of the case released the suspected persons Ghulam Abbas, Muhammad Ali and Sheh zad under section 169, Cr.P.C., whereas accused Sajid Hussain, after completion of investigation, committed to judicial lock-up.
5. Brief facts of the Criminal Case No.12/ 2019 are that the appellant/convict was arrested in case FIR No.01/2015 registered under section 302, P.P.C. at Police Station Airport Gilgit for murder of one Muhammad Sadoor son of Juma Syed. During investigation of the said case, the appellant/convict disclosed the fact that he has committed murder of the deceased with 30 bore pistol and has concealed the said pistol in junk of workshop. On 06.01.2015 at about 1615 hours, the appellant/convict led the police to the place from where 30 bore pistol bearing No. NIL was recovered. The appellant/convict failed to produce valid licence of the said pistol for which IP/SHO Firdos Ahmed of Police Station Airport Gilgit registered FIR No.02/2015 (Exh.PW -11/B) under section 13 Arms Ordinance 1965 against the appellant/ convict.
6. After fulfilling legal requirements and completion of investigation, challan of both criminal cases were submitted in the Court of Senior Civil Judge/Judicial Magistrate Gilgit on 16.02.2015 and the learned Judicial Magistrate forwarded the complete case files to the learned Sessions Judge Gilgit on 19.02.2015, which was received in the Court of Sessions Judge on 24.02.2015. The learned Sessions Judge, Gilgit assigned the case to learned Addl.
Sessions Judge Gilgit for trial and disposal and the learned Addl. Sessions Judge received the same on 25.02.2015. On the same day, the learned Addl. Sessions Judge registered the cases and issued notices to the State and accused for 02.03.2015, whereas on 25.03.2015, copies of documents of the cases were supplied to the appellant/convict free of cost under section 265-C, Cr .P.C.
7. On 13.04.2015, the learned trial Judge indicted the appellant/convict under section 302, P.P.C. and 13 A.O. separately , who denied the charge and demanded proper trial on which the learned trial Judge summoned prosecution witnesses. In order to establish its case, prosecution examined 12 witnesses out of 15 witnesses in main murder case, whereas PWs Muhammad Ali, Mir Alam and FC Sulaim an were abandoned. Similarly , prosecution examined 3 PWs out of 4 PWs, whereas one PW was abandoned in connected case registered under section 13 AO.
8. After recording evidence, the learned trial Judge on 15.11.2018 recorded statement of appellant/convict under section 342, Cr.P.C. and confronted him with all the incriminating evidence brought against him. He refuted the same and professed innocence. The appellant/convict neither opted to record his statement on oath under section 340(2), Cr .P.C. in disproof of allegations levelled against him nor examined any witness in his defence.
9. The learned trial Judge after completion of trial and hearing both the parties, awarded capital punishment to the appellant/convict under section 302(b), P.P.C. viz. death sentence and fine of Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased and in case of failure six months additional simple imprison- ment, whereas under section 13 Arms Ordinance 1965, the appellant/convict was sentenced three years R.I., however benefit of section 382-B, Cr.P.C. was afforded to the appellant/convict and the recovered 30 bore pistol was confiscated in favour of State, vide judgments dated 23.05.2019. Hence, the instant criminal appeals before this Court.
10. The learned trial Judge vide No.ADSJ-G-08/2019 dated 23.05.2019 having Murder Reference No.01/2019 of Sessions Case No.12/2018, has sent the record of murder case along with connected case under section 374, Cr.P.C. for confirmation of death sentence awarded to the appellant/convict under section 302(b), P.P.C., which was registered in this Court as Murder Reference No.02 of 2019.
11. Learned counsel for the appellant/ convict submitted that the case of prosecution is highly doubtful, but the learned trial Court has illegally extended all benefits of doubt to the prosecution, instead of appellant/convict, therefore, the impugned judgment is against the principles of criminal jurisprudence. The learned counsel for the appellant/convict contended that the conviction is based only on the statement of Judicial Magistrate Gilgit (PW-8), who has recorded the statements of alleged eye-witnesses namely Ghulam Abba s (PW-12) and Muhammad Ali.
PW Ghulam Abbas did not support the version of prosecution when deposed before the Court and was declared hostile by the prosecution. The learned trial Court has given weight to the statement of hostile witness and his statement recorded under section 164, Cr .P.C. by the Judicial Magistrate Gilgit.
The learned counsel for the appellant/ convict further argued that the impugned judgment is result of wrong conclusion, misreading and non-reading of evidence available on record. The learned counsel for the appellant/convict while continuing his arguments submitted that the prosecution has miserably failed to substantiate its story and contents of FIR through any independent reliable and corroborative evidence, but the learned trial Judge passed the impugned judgment on the basis of self-made presumptions. The learned counsel for the appellant/ convict further argued that prosecution has badly failed to prove the allegations levelled against the appellant/convict. The prosecution eviden ce is not worth credence and believable, but the learned trial Court has misread evidence and based its judgment on flimsy grounds. The learned counsel for the appellant/ convict contended that the trial Court has made wrong appraisal of evidence and has considered the evidence which is not admissible under Qanun-e-Shahadat, 1984. Learned counsel for the appellant/ convict submitted that the prosecution has failed to comply the mandatory provisions of section 103, Cr.P.C. during recovery of alleged weapon, as the recovery has been allegedly effected from Shaheed Millat Road Gilgit, whereas the PWs of the alleged recovery belongs to Chamogarh Gilgit, which is situated almost 20km away from the place of occurrence, which is a serious doubt but the learned trial Judge ignored this fact and extended benefit to prosecution instead of appellant/convict. Concluding his argum ents, the learned counsel for the appellant/convict submitted that the impugned judgment is result of ignorance of law, misunderstanding of principles of the criminal justice system and against the basic principles of natural as well as criminal law, hence he prayed that the impugned judgment/conviction passed by the learned trial Court may be set aside and the appellant/convict may be acquitted from all the charges in the interest of justice. The learned counsel for the appellant/convict vehemently contended that the alleged two eye-witnesses of the occurrence, who were allegedly living with the deceased, were arrested by the police on 01.01.2015 and remained in police custody till 06.01.2015. On 06.01.2015, their statements favouring the prosecution were extracted, which are not admissible under law. The learned counsel relied on 2015 YLR 327 [Sindh], 2007 PCr.LJ 675 [Karachi], 2000 SCMR 785 [Supreme Court of Pakistan], PLD 1983 Supreme Court 197, PLD 1989 Supreme Court 20, PLD 2011 Supreme Court 554 and Judgment dated 09.8.2017 passed by Supreme Appellate Court Gilgit-Baltistan in 2018 YLR 1547 , in support of his contentions.
12. Contrary to the submissions made by the learned counsel for the appellant/convict, the learned Dy. Advocate General opposed the contentions with passion and supported the impugned judgm ent/ conviction by arguing that the appellant/ convict is nominated in the FIR and the appellant/convict and the deceased were living in one room where the deceased has been murdered. Two witnesses who were apprentice in the same workshop and were living with the deceased and appellant/co nvict in the workshop have got recorded their statements under section 164 Cr.P.C. in the Court of Judicial Magis trate Gilgit as eye-witness and the Judicial Magistrate Gilgit has deposed before the trial Court as PW-8 and authenticated the statements recorded by him under section 164, Cr.P.C. i.e. Exh.PW -8/A and Exh.PW -8/B. The learned Dy. Advocate General contended that all the PWs are reliable and trustworthy and are in line with each other. He further argued that prosecution has established its case beyond any doubt and every piece of evidence connects the appellant/ convict with the commission of offence. The learned Dy.
Advocate General submitted that the 30 bore pistol which was used in crime has been recovered on pointation of appellant/ convict and the report of National Forensic Science Agency confirms that the said pistol has been used as crime weapon. The learned Dy. Advocate General argued that the postmortem report (Exh.PW -7/A) also supports the prosecution's version and Dr. Mushtaq Ahmed (PW-7) who has conducted the postmortem of the deceased, has stated before the Court that the death of deceased was due to firearm injury . The learned Dy.
Advocate General argued that the appellant/convict after committing murder , had fled away from the scene in a vehicle and filled petrol in the vehicle at a Petrol Pump situated at Sultanabad and sold the mobile phone of deceased to the employee of Petrol Pump namely Nawaz Khan (PW-9). PW-9 Nawaz Khan stated the above facts in his statement recorded in the trial Court and the recovery of vehicle and mobile phone from PW-9 shows that the appellant/convict has committed murder of the deceased. With these submissi ons, the learned Dy. Advocate General requested that the learned trial Judge has rightly awarded capital punishment to the appellant/ convict which may be maintained to meet the ends of justice.
13. We have given our judicious mind to the contentions of the learned counsel for the parties and perused the record of the case with due care.
14. As evident from the record, the deceased was living in a room of a workshop along with his companion Ghulam Abbas and Muhammad Ali were also living. The evidence reveals that immediately after commission of offence, the present appellant fled away from the place of occurrence in a vehicle and his companions when failed to establish a contract with PW-2 Shehzad Khan, rushed to his house to inform him about this unfortunate incident. Both these PWs as r statement of PW-2 Shahzad Khan formed him that the appellant has committed the murder of deceased and escaped in a car, which was later on recovered and taken into possession by the local police, vide recovery memo Exh.PW -4/B. The statement of PW-2 regarding the occurrence remained consistent and could not be shattered by the defence. The statement of any witness soon after the occurrence is admissible in evidence under Article 19 of Qanun-e-Shahadat Order . Appellant soon after the occurrence, left the place of occurrence in a car bearing No.APL-2014, which was taken into possession vide recovery memo Etch. PW -4/B.
15. Worth mentioning here that the appellant obtained petrol from a Petrol Pump of Sultanabad and instead of payment of Rs.500/- i.e. the cost of petrol, he handed over his nokia mobile phone to one of employee of Petrol Pump namely Nawaz Khan, with the condition that the appellant will come back and after payment of Rs.500/- will get back the mobile, which was, taken into possession by the I.O. of the case during investigation, vide Exh.PW - 4/A. The accused was arrested on 01.01.2015 and weapon of offence i.e. 30 bore pistol was recovered from him on his pointation on 06.01.2015. The I.O. of the case on the day of occurrence has taken into possession one spent bullet of a 30 bore pistol, which was sent to National Forensic Science Agency and a positive report has been received there from, which has been exhibited in the trial Court as Exh.P/1 on 17.08/2015. Likewise, the report of Chemical Examiner regarding the last worn vest (bunyan) of the deceased and the blood stained earth is also in affirmative. The site plan/site inspection reports, which were prepared immediately after the occurrence carries the name of the convict/appellant as the sole culprit and murderer of deceased Muhammad Sadoor .
16. Statements of two companions, the inmates of the room i.e. Ghulam Abbas and Muhammad Ali were also recorded under section 164, Cr.P.C. after fulfillment of all the legal formalities. Although the makers of statement namely Ghulam Abbas went underground and was arrested after hectic efforts and the result was obvious, as he resiled from his statement recorded by the learned Judicial Magistrate under section 164, Cr.P.C. Likewise another witness namely Muhammad Ali, also could not be traced till conclusion of trial. The learned Judicial Magistrate Mr. Khurshid Ahmed, appeared in the trial Court as PW-8 and got exhibited the statements as Exh.PW -8/A and Exh.PW -8/B. A perusal of the above statements shows that these statements were recorded after fulfillment of all the legal and codal formalities. The accused was given prior notice under section 265-J, Cr.P.C. and the accused was also asked to engage a counsel, but he did not do so. Although PW Ghulam Abbas, when appeared in witness box as PW-12 resiled from his statement recorded under section 161, Cr.P.C. as well as under section 164, Cr.P.C., but during cross-examination the PW admitted almost all the material events. This PW during cross-examination admitted his presence with deceased Muhammad Sadoor and Muhammad All in the same room at the night of occurrence. He also admitted hearing of fire shot in the room. This PW candidly admitted during cross-examination the recording of his statement under sections 161 and 164, Cr.P.C. and admitted that he has now resiled from these statements. Now all most all it is a settled principle of criminal law that statement of a hostile witness is not to be discarded as whole, but where some portion of his statement, support the case of prosecution, the same could be used in support or corroboration of prosecution. An another prosecution witness namely Muhammad Ali as discussed earlier could not be traced and if a person is dead or could not be found, his statement recorded under section 164, Cr .P.C. could be brought on record as a piece of evidence, as done in the present case.
17. The ocular evidence is quite in line with the medical evidence, which fully lends support to the case of prosecution in addition to the reports of Forensic and Chemical Expert. The place of occurrence, the manner of occurrence, the arrest of the accused, recoveries of incriminating articles have not been seriously challenged by the defence. The benefit of some technical lapse cannot be extended to the convict / appellant, when abundant evidence is available on record, which leaves no doubt in one's mind that it was the accused alone who committed the of fence.
18. We are of the considered view that prosecution proved the guilt of the accused /appellant upto the' hilt. We see eye to eye with the findings of guilt recorded by the learned trial Court. The convictions recorded by the trial Court vide judgments dated 23.05.2019 passed in Sessions Case No.12/2018 and Sessions Case No.13/2018 are maintained. Criminal Appeal No.14 of 2019 and Criminal Appeal No.12 of 2019 are dismissed accordingly . Murder Reference No.02 of 2019 is answered in "Affirmative".
19. Criminal Appeal No.14 of 19, Criminal Appeal No.12 of 19 and Murder Reference No.02/2019 are disposed-of f.
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