ASJAD JAVAID GHURAL, J. Through this criminal appeal under Section 410, Cr.P.C., appellants Muhammad Kashif and Nazar Iqbal have challenged the vires of judgment dated 31.03.2018 passed by the learned Addl. Sessions Judge, Faisalabad case FIR No.550/15, dated 11.09.2015 in respect of offence under Sections 302, 324, 337-A (i), 337-F (iii), 148 and 149, P.P.C. registered at Police Station, D-Type Colony District Faisalabad whereby they were convicted and sentenced as under:-- i) Appellant Kashif.
Under Section 302(b), P.P.C.
Imprisonment for life as Tazir along with compensation of Rs.500,000/- to the legal heirs of deceased Anwar Butt and in default thereof, to further undergo simple imprisonment for six months. ii) Appellant Nazar lqbal, Under Section 324, P.P.C.
Imprisonment for ten years as Tazir along with fine of Rs.30,000/- and in default thereof, to further undergo simple imprisorment for fifteen days.
Under Section 337-A (i), P.P.C.
Imprisonment for two years as Tazir and Daman amounting to Rs. 20,000/-.
Under Section 337-F(iii), Imprisonment for three years as Tazir and Daman amounting to Rs.30,000/- only.
All the sentences were ordered to run concurrently. They were held entitled to the benefit of Section 382-B, Cr.P.C.
2. Complainant Ghulam Sarwar Butt has filed Criminal Revision No.205520/18 seeking enhancement of sentence of respondents Nos. 2 and 3 (appellants), which shall be decided through this common judgment.
3. The prosecution story unfolded in the crime report (Ex.PE/1) registered on the complaint of Ghulam Sarwar (PW-7) is that on 11.09.2015 at about 07:15 p.m. his brother Anwar Butt along with Rana Liaqat and Abdul Jabbar was going towards the house of Rana Liaqat on foot and also for the milk-shop of Rana Liaqat at Service Road, Samundari. When they reached near the milk-shop of Kashif alias Kashi (appellant), one of the accused namely, Ghulam Rasool alias Tinda (since acquitted) raised lalkara to teach them a lesson for quarreling with Kashif whereupon co-accused Asif and Yasin (since acquitted), while armed with clubs, attacked upon Anwar Butt whereas, appellant Nazar lqbal started making straight firing resulting into fire arm injuries to Anwar Butt and Rana Liaqat. Anwar Butt succumbed to the injuries at the spot whereas Rana Liaqat was shifted to the hospital. On raising their hue and cry and report of firing, PWs attracted at the place of occurrence and on seeing them, the accused while making aerial firing fled away. Motive behind the occurrence was that a few days before Rana Liaqat forbade Kashif for making aerial firing and due to that grudge, Kashif in onnivance of his co-accused committed the murder of Anwar Butt.
4. Muhammad Aslam, S.I. / Investigating Officer visited the place of occurrence on the same day and took all necessary steps of investigation. He prepared injury statement, inquest report of deceased Anwar Butt and escorted the dead body to the mortuary. He secured blood stained earth and prepared unsealed site plan of the place of occurrence. He also took into possession three crime empties of pistol 30-bore vide recovery memo. Ex. PG. On 12.09.2015 he recorded the statements of Rana Liaqat injured in the hospital under Section 161, Cr.P.C. On 07.10.2015 he arrested accused Kashif and Nazar Muhammad. On disclosure of accused persons, he got recovered pistol (P-3) along with four live bullets from Kashif and pistol (P-4) from Nazar Iqbal. After completion of investigation, the investigating officer got prepared report under Section 173, Cr.P.C.
5. Dr. Ijaz Hussain, (PW-4) held autopsy on the dead body of deceased Anwar Butt on 12.09.2015 at about 3.20 p.m. and observed following injuries on his person: "1-A. A firearm wound of entry 1.5 x 01 cm, it is 13 cm from right nipple on the right side of chest. It fractured fourth rib.
1-B. A firearm wound of exit 01x01cm, it is just below the lower end of left scapula on the left side of back of chest, it fractured sixth and seventh rib on the back."
According to the opinion of Medical Officer death occurred due to injury No.1-A, caused by fire arm which damaged both the lungs lead to hemorrhagic shock and asphyxia and death. Injury No.1 was sufficient to cause death in ordinary course of nature. The duration between injuries and death was immediate whereas between death and postmortem examination 18 to 24 hours.
Dr. Asif Shebzad, (PW-13), medically examined injured Liaqat Ali on 11.09.2015 at about 7.50 p.m. and observed two laceraied wound and two firearm injuries incluing an exit wound. Injuries Nos.3 and 4 were declared as Jurah Ghair Jaifa Marlama caused by firearm.
6. The prosecution examined13-witnesses in all. The appellants in their statements recorded under Section 342, Cr.P.C. had denied and controverted all the allegations levelled against them.
However, they neither opted to make statements under Section 340(2), Cr.P.C. nor produced any evidence in defence.
7. Learned trial Court, upon conclusion of the trial, acquitted the co-accused Ghulam Rasool and Muhammad Yasin, whereas, convicted and sentenced the appellants, as stated above. Hence, this criminal appeal.
8. Learned counsel for the appellants submits that the appellants are quite innocent and have falsely been implicated in the alleged occurrence; that this incident took place at night time and as such identity of real culprits in the darkness of night was highly improbable; that even the electric bulb/tube light shown in the site plan was not taken into possession during investigation; that name of the complainant does not find mentioned in the scale/unsealed site plan as an eye- witness, which belies his presence at the venue of occurrence at the relevant time; that the ocular account is in contradiction with the medical evidence, inasmuch as the injured claimed to have sustained two fire arm injuries, whereas, according to MLC, he sustained only one fire shot on his person; that there was unexplained delay of more than 18 to 24 hours in conducting post mortem examination, which is sufficient to believe that the time was consumed in order to procure and plant the eye-witnesses for cooking up a false story; that the learned trial Court has already acquitted two co-accused of the appellants by disbelieving prosecution evidence to their extent and as such the same cannot be believed against the appellant as well; that the crime empties secured from the spot were not found wedded with the weapons alleged to have been recovered at the instance of the appellants and as such the same remains inconsequential; that the motive behind the occurrence remained unproved before the learned trial Court. At the end, he has prayed for acquittal of the appellants.
9. Conversely, learned Law Officer appearing for the State assisted by learned counsel for the complainant has contended that this incident took place in front of milk shop of appellant Kashif where sufficient source of light was available; that admittedly, the parties were previously known to each other and as such possibility of mis-identification or non-identification of the actual culprit is out of question; that the incident took place in a busy Bazar and as such the same cannot be considered as an unseen and unwitnessed occurrence in any eventuality; that non-mentioning of the complainant's name in the site plan is not fatal; that the witnesses of ocular account were quite natural and consistent inter-se coupled with the medical evidence; that the dead body was shifted to the hospital soon after the occurrence but the post mortem examination could not be conducted well in time due to non-availability of the doctor, as such benefit of delay in conducting such post mortem cannot be attributed to the appellants; that no doubt the trial Court has disbelieved motive part of the occurrence yet at the most, the same can be considered as a mitigating factor for quantum of sentence for which the appellants have already been benefited; that there was no occasion for the complainant, being real brother of the deceased to falsely implicate the appellants in this case as a substitution while letting off real culprit; that the prosecution has successfully proved the charge against the appellants beyond shadow of reasonable doubt. In the end, a prayer has been made for dismissal of the appeal.
10. I have heard learned, counsel for the appellants, learned Law Officer appearing for the state assisted by learned counsel for the complainant and perused the record with their able assistance.
11. This unfortunate incident took place on 11.09.2015 at about 07:15 p.m., which was reported to the police promptly at 09:10 p.m. keeping in view the 'inter-se distance between the place of occurrence and the police station as 2-1/2 kilometers. The promptness in lodging the crime report not only confirms the presence of eye-witnesses at the spot but also excludes every hypothesis of deliberation, consultation and fabrication prior to the registration of the case.
12. Ghulam Sarwar (PW-7)/complainant and Khursheed Ahmad (PW-9), both brothers of deceased Anwar Butt, while appearing in the dock of the court room deposed in unison that on the fateful day at about 07:15 p.m. they along with Abdul Jabbar, Liaqat Ali (injured) and Anwar Butt (deceased) were going towards the shop of Rana Liaqat situated in St. no.2, Mohallah Fateh Abad on foot. When they reached in front of the shop of appellant Kashif, they saw Ghulam Rasool alias Tindha empty handed, Yasin and Asif armed with Sotas (all since acquitted), Nazar Iqbal and Muhammad Kashif.
(Appellants) armed with pistols along with two unknown accused were present there. Ghulam Rasool raised a lalkara that Liaqat Ali etc. be taught a lesson for quarreling with his son Kashif, upon which accused Asif and Yaseen started beating them with their sotas. Appellant Kashif shot dead Anwar Butt with his pistol. Appellant Nazar Iqbal made a straight fire upon Liaqat Ali. Anwar Butt succumbed to the injured at the spot. Rana Liaqat Ali (PW-8)/injured deposed exactly in line with the aforesaid eye-witness while giving minute details of the incident and raised accusing fingers towards the appellants deposing that appellant Kashif made a straight fire upon deceased Anwar Butt, whereas, appellant Nazar Iqbal made a fire with his pistol 30-bore upon him. They were subjected to exhaustive cross-examination but they remained firm and consistent on all material aspects of the case qua the date, time, place, mode and manner of the occurrence, names of the appellants with their specific role and the weapons of offence used in the occurrence and the defence could not shatter their credibility in any eventuality.
13. Learned counsel for the appellant laid much emphasis that name of Ghulam Sarwar, (PW- 7)/complainant does not find mentioned in the scaled site plan (Ex.PH). As has been observed supra, crime report at the instance of said witness was registered promptly, which fact alone is sufficient to believe that the said witness was present at the spot. Had he been not present at the venue of occurrence at the relevant time, it was highly improbable for the prosecution 'to report the matter to the police station in such a shortest possible time. Even otherwise, Muhammad Aslam, SI, (PW-11), who prepared the scaled site plan denied the suggestion in his cross-examination qua non-availability of the complainant at the spot at the relevant time. In the given circumstances, mere omission for not mentioning the complainant's name in the site plan cannot be considered as a sole reason to believe that he was not present at the spot at the relevant time. Even otherwise, if for the sake of arguments, testimony of said witness is excluded from consideration, it would not helpful for the defence in any manner. In the matter of appreciation of the evidence the requirement of law is quality of a witness not the quantity. There is also no requirement of law that a particular number of witnesses are necessary to prove/disprove a fact. It is time honoured principle that the evidence must be weighed not counted. Here in the instant case, Rana Liaqat Ali (PW-8), sustained injuries during the occurrence at the hands of the accused persons and as such his presence at the place of occurrence at the relevant time cannot be questioned in any manner.
Rana Liaqat Ali categorically deposed against the appellants before the learned trial Court raising accusing finger towards none else but the appellants being responsible for the murder in issue and also causing fire arm injuries to him. He faced the test of cross-examination with full confidence and his sole statement in the facts and circumstances of the case is sufficient to bring home guilt of the appellants.
Learned defence counsel has referred cross-examination portion of Rana Liaqat Ali. (PW-8) i.e. "1 sustained firearm injury from the distance of 05/06 feet, whereas second injury was sustained by me from the distance of 02-02-1/2 feet" and argued that testimony of said witness is in contradiction with the medical evidence whereas he has received single injury on his person. I do not agree with this convention for the reasons that the said witness, in his statement recorded under Section 161, Cr.P.C. before the police as well as examination-in-chief before the learned trial court simply deposed sustaining of single fire arm injury at the hands of appellant Nazar lqbal. This unfortunate incident took place in the month of September, 2015, whereas, evidence of said witness was recorded in March, 2018 i.e. after elapse of delay of 31-months. He was subjected to grueling and taxing cross-examination. The first and foremost impression which gathers from the testimony of said witness is that he is a rustic witness. Such witness who was subjected to cross-examination at such a length is bound to get confused and made some inconsistent statement. In that backdrop discrepency pointed out by the learned defence counsel cannot be blown out of proportion. The basic principle of appreciating the evidence of a witness is that the Court should examine the statement of such a witness in its entirety and if the same rings truth any variation/deviation, which might have been occurred due to certain reasons, should be ignored. I am of the considered view that the discrepancy pointed out by the learned defence counsel is not of such a vital nature, on the basis of which entire testimony of a star witness is discarded.
4. So far as the objection of the learned defence counsel that it was a dark-night occurrence and the source of light i.e. bulb/tube-light was not taken into possession during investigation, suffice it to say that the occurrence took place on 11th of September, 2015 at 07:15 p.m. and normally during these days, sun sets about the said time and at the most it was a Maghrab prayer time, therefore, it was quite easy for the witnesses to identify the real culprits even without any artificial source of light. Furthermore, source of light i.e. electric bulb/tube light was well mentioned in the site plan (Ex.PI) and not taking the same into possession during investigation has no legal backing. Reliance is placed on case reported as Shamsher Ahmad and another v. The State and another (2022 SCMR 1931) wherein it has been laid down as under:-- "Although it has been argued that tube-light, which has been shown as source of the light was not taken into possession and as such it hampers the prosecution case. However, this aspect of the argument has no legal foundation. Firstly, it depends upon the ownership of the article, which ultimately provided the source of identification, and secondly it is for the Investigating Officer either he deems it essential or otherwise."
Apart from this, the parties are previously known to each other and the incident took place in front of a milk-shop where generally the shopkeeper switched on lights prior to dawn of darkness and as such, the question of mis-identification or non-identification of the actual culprit is highly improbable.
15. Dr. Ijaz Hussain, (PW-4) held autopsy on the dead body of deceased Anwar Butt on 12.09.2015 at about 03:20 p.m. and observed firearm wound of entry 1.5 x 01 cm,. from right nipple on the right side of chest, which fractured fourth rib 1-B. A firearm wound of exit 01 x 01 cm, just below the lower end of left scapula on the left side of back of chest, which fractured sixth and seventh rib on the back. According to the opinion of Medical Officer death of the deceased occurred due to injury No.1-A, caused by fire arm, which damaged both the lungs leading to hemorrhagic shock and asphyxia and death. Injury No.1 was sufficient to cause death in ordinary course of nature. The duration between injuries and death was immediate whereas between death and postmortem examination 18 to 24 hours. The locale, number, nature and duration of injuries and weapon of offence used for causing these injuries is exactly in line with the ocular account and as such the medical evidence lends full support to the ocular account. Learned counsel for the appellants laid much emphasis that there was unexplained delay of 18 to 24 hours in conducting post mortem examination, which is sufficient to believe that such long time had been consumed in order to procure and plant the eye-witnesses for cooking up a false story. No doubt, delay in conducting post mortem examination has always seen critically by the Courts but here in the instant case the situation is entirely different. Kasuar Raza, 3513/C (PW-2) deposed in cross-examination that he escorted the dead body along with police papers to the, hospital and reached there at about 9:15 p.m. Similarly. Maroon Rasheed, (PW-10), who identified the dead body deposed in cross- examination that they reached the hospital at about 9/9.30 p.m. but the doctor was not available.
From the testimonies of these witnesses, it was established on record that the dead body of the deceased along with police papers was dispatched to the hospital within two hours. After dispatching the dead body to the hospital, the prosecution has fulfilled his duty and if due to non- availability of the doctor the post mortem examination was not conducted well in time, its benefit cannot be extended to the defence. Reliance is placed on case reported as Ghulam Rasool v. The State (2010 SCMR 1579), wherein it has been laid down as under:- "the dead body was brought to the hospital at 9.45 a.m. and if, for some reason may be administrative or due to the lack of the Doctors/Staff, the postmortem was conducted later, it would not render the case of doubtful in nature, so as to ignore the strong ocular evidence."
Dr. Asif Shehzad, (PW-13), medically examined injured Liaqat Ali on 11.09.2015 at about 7.50 p.m. and observed two lacerated wound and two firearm injuries including an exit wound. The medical evidence 15 exactly in line with the ocular account and lends full support thereto.
16. The motive behind the occurrence as ascribed by the prosecution was a quarrel earlier taken place between appellant Kashif and injured Rana Liaqat Ali, a few days before but neither any date, time and place of such occurrence was given nor any of the eye-witnesses claimed that such incident took place in his presence. The aforesaid matter was neither reported to the police nor any Panchyat was convened to resolve the same. In such circumstances, I am constrained to hold that the motive, as set out by the prosecution, is nothing except the words of mouth.
17. Muhammad Aslam, SI/(PW-11) transmitted pistols 30-bore allegedly recovered at the instance of the appellants to the office of Punjab Forensic Science Agency, Lahore for comparison with the crime empties already secured from the spot but no report from the said office is available on record. Both learned counsel for the parties were unison on the point that according to the report of said office crime empties secured from the spot were not found wedded with the pistols shown to have been recovered at the instance of the appellants. The same fact has also been observed by the learned trial Court in its impugned judgment, therefore, it can safely be said that the recovery of weapons of offence from the appellants remained inconsequential.
18. The acquittal of co-accused Ghulam Rasool and Muhammad Yaseen has no bearing upon the fate of the appellants for the reasons that their role was quite distinguishable because no injury was attributed to them on the person of the deceased or the injured witness. Ghulam Rasool Tinda was attributed the role of raising Lalkara whereas Muhammad Yaseen was assigned to the role of causing injury with his Danda but to whom he caused the said injury remained mysterious throughout the investigation and the trial. There was no blunt injury on the person of deceased, whereas, according to the opinion of medical officer two blunt injuries sustained by the injured PW can be a result of falling on hard and solid material. In the given circumstances, acquittal of co- accused, out of abundant caution does not adversely impact upon prosecution case. Reliance is placed on case reported as Muhammad Rafique alias Neela and another v. The State and others (2020 SCMR 664) wherein it has been laid down as under.
"Doctrine of abundant caution is a silver lining in our jurisprudence to ensure safe administration of criminal justice and application thereof does not necessarily imply destruction of entire volume of evidence, if otherwise found sufficient to sustain the centrality of the charge." Similar view has been taken in case reported as Muhammad Sharif and others v. The State and others (2019 SCMR 1368).
19. Gathering all these facts and circumstances of the case, I am of the considered view that the prosecution has successfully proved the charge against the appellants by producing cogent, reliable and confidence inspiring evidence. The matter was reported to the police promptly which not only establish the presence of witnesses of ocular account but also rules out every possibility of fabrication and consultation. The duration between injuries and death as well as death and post mortem examination are synchronized with the time of occurrence mentioned in the crime report.
The delay in conducting the post mortem examination is not fatal to the prosecution case for the reasons enumerated above. Acquittal of two of the nominated accused by the learned trial Court has no bearing upon the fate of the appellants. It is inconceivable for the complainant to substitute the assassin of his real brother with innocent person and that too without any rhyme or reason. I have no legitimate exception to differ with the conclusion arrived at by the trial Court qua the conviction and sentence of the appellants.
20. However, so far as quantum of sentence awarded to appellant Nazar lqbal in offence under Section 324, P.P.C. is concerned, there are certain circumstances, such as his young age, acquittal of two co-accused and non-repetition of fire shot by him, warrant lessor punishment under this section. Statedly, the appellant has already served out morethan three years of his substantive-, sentence, which in my considered view, is sufficient to meet the ends of justice. However, his sentence in offence under Section 337-A(i) and 337-F(iii) along with Daman amount shall remain intact. All the sentences are ordered to run concurrently. He is on bail, present before the Court is directed to pay the fine as well as amount of Daman within one month, otherwise, he shall be taken into custody till realization of said amount. Conviction and sentence awarded to appellant Kashif shall remain intact in toto. With the above modification, the appeal stands dismissed.
Criminal Revision No.205520/2018
21. For the reasons enumerated hereinabove, instant petition seeking enhancement of sentence, being devoid of any force, the same stands dismissed.