FAROOQ HAIDER, J.:- This single judgment will dispose of Crl. Appeal No.9929-J/2022 filed by Sheroz Yousaf (appellant) against his "convictions & sentences" and Murder Reference No.13/2022 sent by trial court under Section: 374 Cr.P.C. for confirmation of death sentence awarded to appellant as both the matters have arisen out of one and the same judgment dated: 23.12.2021 passed by learned Additional Sessions Judge, Gujranwala/trial court.
2. Sheroz Yousaf (appellant) along with his co-accused person namely Samar Masih was tried in case arising out of F.I.R. No.1134, dated 16.08.2020, registered under Sections 302, 324, 452, 337F(iii), 34, PPC at Police Station: Satellite Town, Gujranwala and after conclusion of trial, the trial Court vide impugned judgment dated 23.12.2021, while acquitting co-accused Samar Masih has convicted and sentenced the appellant as under: i) Under Section 302 (b) PPC: 'Death' as Ta'zir for committing Qatl-e-amd of Sarafeen Javed with payment of compensation Rs.5,00,000/- under section 544-A(1), Cr.P.C. to the legal heirs of deceased and in default thereof to further suffer S.I. for six months. The compensation so awarded was ordered to be recovered as arrears of land revenue as enshrined under Section 544-A(2)
Cr.P.C. ii) Under Section 324, PPC: Ten years R.I. for causing murderous assault upon injured Sheroz Javed with fine of Rs.50,000/- and in default thereof to further suffer S.I. for six months. iii) Under Section 324, PPC: Ten years R.I. for causing murderous assault upon injured Komal Javed with fine of Rs.50,000/- and in default thereof to further suffer S.I. for six months. iv) Under Section 337F(iii) PPC: Daman worth Rs.50,000/- for each injury to each injured. v) Under Section 452, PPC: Two years R.I. with fine of Rs.10,000/- and in default thereof to further suffer S.I. for three months.
3. Primarily, Javed Josaf (complainant/PW-3) set the machinery of law into motion by moving application (Ex.PB) regarding commission of murder of Sarafeen Javed and causing injuries to Sheroz Javed and Komal Javed against appellant and his co-accused to Luqman Ayyub, ASI (PW- 6) at Police Station mentioning therein that he is employee in Income Tax; on 16.08.2020 at 3.15 p.m., the complainant (PW-3) alongwith his wife Mst. Sarafeen Javed (deceased of the case), Sheroz Javed (PW-4) Komal Javed (PW-5) and Asim Perviaz (given up PW) was present in his house; Sheroz Yousaf (appellant) and Samar Yousaf (acquitted co-accused) who are neighboures of complainant were making firing in street who were forbidden, they became furious and forcibly entered into the house of complainant and with intention to kill started firing upon complainant party, Sheroz (mentioned above) fired a straight shot with his pistol hitting Mst. Sarafeen Javed on her aorta ( )due to which she fell down on ground; son of the complainant namely Sheroz Javed came forward then Sheroz Yousaf fired a straight shot which landed on his chest who also fell down, daughter of the complainant namely Komal Javed also step forward and Sheroz Yousaf fired a straight shot hitting her on her right thigh who also fell down on the ground in an injured condition; complainant and Asim Pervaiz luckily remained safe/unscathed. The accused persons while raising lalkara and brandishing pistols escaped from the scene of the crime. Wife of complainant succumbed to the injury at the spot. Complainant shifted deceased and both the injured to Civil Hospital, Gujranwala.
4. After completion of investigation, challan report under Section: 173 Cr.P.C. was submitted against the appellant and his co-accused; he was formally charge sheeted but he pleaded not guilty and claimed trial whereupon prosecution evidence was summoned; after recording of prosecution evidence, he was examined under Section: 342 Cr.P.C. but he refuted the allegations levelled against him; he neither opted to produce defence evidence nor opted to appear as his own witness under Section: 340(2) Cr.P.C.
Trial Court after conclusion of trial has convicted and sentenced the appellant as mentioned above through impugned judgment dated: 23.12.2021.
5. Learned counsel for the appellant has submitted that conviction recorded and sentence awarded to the appellant through impugned judgment are against the 'law and facts' of the case; ocular account is neither trustworthy nor corroborated by any other independent evidence; as per ocular account only one injury was caused to the deceased but medical evidence shows availability of four injuries on her body; prosecution has remained unable to prove its case. Learned counsel for the appellant finally prayed for acquittal of the appellant.
6. Learned Deputy Prosecutor General while supporting the impugned judgment submit that prosecution has proved its case beyond shadow of doubt against the appellant through cogent and reliable evidence and prayed for dismissal of appeal.
7. Arguments heard. Record perused.
8. It has been noticed that as per case of prosecution, occurrence took place on 16.08.2020 at 3.15 p.m. in which Sarafeen Javaid (wife of the complainant), Sheroz Javaid (son of the complainant) and Komal Javed (daughter of the complainant) received firearm injuries, Sarafeen Javed died and after leaving deceased and aforementioned injured persons/PWs in the hospital, Javed Josaf (complainant/PW-3) went to Police Station where he submitted application for registration of case (Exh.PB) and on the basis of the same, F.I.R. (Exh.PB/1) was recorded at 6.00 p.m. on 16.8.2020 at Police Station Satellite Town, District Gujranwala, therefore, there is no undue delay in the registration of the case. Post-Mortem Examination Report (Exh.PE) over dead of Sarafeen Javed (deceased of the case) was conducted at 10.45 p.m., so same is also not unduly delayed. Similarly, both the eye witnesses i.e. Sheroz Javed (PW-4) and Komal Javed (PW-5) were got medically examined after the occurrence vide MLCs Exh.PC and Exh.PF respectively.
9. Ocular account furnished by prosecution in this case comprises of statement of Javed Josaf (complainant/eye-witness/PW-3), Sheroz Javed (injured eye-witness/PW-4) and Komal Javed (injured eyewitness/PW-5). All the said witnesses deposed about details of the occurrence in straight forward manner. Evidentiary value of their testimony could not be diminished/minimized and their credibility also could not be impeached in spite of searching cross-examination made over them. The complainant was natural witness whose presence at the spot was quite natural as in his house occurrence took place. Similarly, Sheroz Javed (PW-4) and Komal Javed (PW-5) were also residents of the place of occurrence who received injuries during occurrence, therefore, they were also the natural and star witnesses. It is also relevant to mention here that it was Sunday on the day of occurrence, therefore, presence of the complainant Javed Josaf (PW-3) in his house was also quite natural on the holiday and relevant portion of his statement in this regard is hereby reproduced:- "On the day of occurrence, it was Sunday and we reached back our house after coming from the church."
Admittedly, parties were known to each other and residents of the same vicinity, therefore, there was no question of mistaken identity, particularly, when occurrence took place in broad day light.
Even otherwise, any cogent and plausible reason to falsely implicate the appellant could not come on the record. Substitution of the real culprit is rare phenomenon in our society; in this regard, case of "IRSHAD AHMAD and others versus The STATE and others" (PLD 1996 Supreme Court 138) can be advantageously referred, relevant portion from page No.143 of the same is as under:- "Undoubtedly, the substitution is a phenomenon of rare occurrence, because even the interested witnesses would not normally allow the real murderers of their relation to escape by involving innocent persons."
Guidance on the subject has also been sought from the cases of "MUHAMMAD AKHTAR versus THE STATE" (2007 SCMR 876), "SHERAZ KHAN versus THE STAE" (2010 SCMAR 1772), "NASIR AHMED versus The STATE" (2023 SCMR 478), "ALI ASGHAR alias AKSAR versus The STATE" (2023 SCMR 596) and "AMAN ULLAH and another versus The STATE and others" (2023 SCMR 723).
Minor inconsistencies and discrepancies do occur/appear in the statements of witnesses with the passage of time, since it is natural that memory of any person with the afflux of time may fade, therefore, such inconsistencies/discrepancies cannot destroy the case of prosecution when same are not hitting vital aspects of the case. Ocular account has been found as confidence inspiring and trustworthy.
Medical evidence produced by prosecution in the case comprises of statement of doctor Nasir Farooq (PW-7) who conducted medical examination of Sheroz (injured witness/PW-4), statement of doctor Memoona Bukhari (PW-9) who conducted post-mortem examination over dead-body of Sarafeen Javed (deceased of the case) and statement of doctor Naheed Akhtar (PW-10) who conducted medical examination of Komal Javed (injured witness/PW-5). Medical evidence has duly supported/confirmed the ocular account. As per application for registration of the case (Exh.PB), dead body of the deceased was shifted by complainant in the hospital alongwith his injured children and then he came to the Police Station for registration of the case and perusal of first column of inquest report (Exh.PM) reveals that dead body of the deceased was available in the dead house of the hospital which also supports ocular version in this regard.
So far as contention of learned counsel for the appellant that as per application for registration of the case (Exh.PB), Sarafeen (deceased of the case) only received injury at her aorta (Sha Rugg) whereas post mortem examination report (Exh.PE) of the deceased reveals that four injuries were noted on her body at the time of her autopsy is concerned, it is relevant to mention that though doctor Memoona Bukhari (PW-9) in her statement before court stated availability of four injures on the body of Sarafeen (deceased of the case) and in this regard, relevant portion of her statement is as follows:- "IV. DETAIL OF INJURIES.
On examination following injures were observed:- i) A lacerated wound of entry 1 x 1 cm in circular shape, going deep on right side of upper part of neck margins are inverted. ii) A lacerated would 0.5 x 0.5 cm x skin deep on upper part of right axilla. iii) A lacerated wound of 3/4 x 3/4 cm skin deep on upper and inner part of right arm. iv) A lacerated wound of 0.5 x 0.5 cm x skin deep on upper part of right arm 3.0 cm below and lateral to injury No.3.
V. DISECTION.
Under injury No.1. Skin, soft tissue, muscle and major blood vessels shattered; bullet recovered from upper part of back of chest on right side." yet close scrutiny of aforementioned detail of injuries reveals that injury No.1 was a lacerated entry wound having inverted margins and dissection reveals that under said injury, skin, soft tissue, muscle and major blood vessels were shattered and bullet was recovered from upper part of back of chest on right side which was opined by the doctor as ante-mortem in nature and sufficient to cause death in ordinary course of nature. This was the firearm injury mentioned in application for registration of the case (Exh.PB). So far as remaining injuries i.e. injuries No.ii, iii and iv are concerned, these were neither having any inverted nor everted margins or having any characteristic of firearm wound rather were simply skin deep which could be a result of falling on the ground after receiving of firearm injury No.1 and it finds support/favour from the contents of application for registration of the case (Exh.PB) wherein it has been mentioned that Mst. Sarafeen Javed after receiving injury fell on the ground, hence, there is no contradiction between ocular account and medical evidence and aforementioned contention advanced/raised by learned counsel for the appellant in this regard is without any force, thus, the same is hereby repelled.
10. Appellant made disclosure and in pursuance of the same got recovered pistol .30 bore (P-1) alongwith two live bullets (P-1/1-2) on 25.08.2020, its sealed parcel was prepared, taken into possession by Ashfaq Ahmad, SI/I.O. (PW-16) vide recovery memo (Exh.PD) attested by Javaid Iqbal 1440/C (PW-8) and Muhammad Aslam 1250/C (given up PW being unnecessary) and sent the same to Punjab Forensic Science Agency, Lahore for comparison/examination; blood was obtained through cotton from the place of murder of Mst. Sarafeen Javed (deceased of the case), secured through sealed parcel and taken into possession vide recovery memo (Exh.PH), blood secured through cotton from the place where Sheroz Javed received injuries, was sealed into parcel and taken into possession vide recovery memo (Exh.PI) whereas blood secured through cotton from the place where Mst. Komal Javed became injured, was sealed into parcel and taken into possession vide recovery memo (Exh.PJ). As per report of Punjab Forensic Science Agency with respect of parcel of blood of Sarafeen Javed (Exh.PT), the same was identified as human blood which confirms the place of occurrence. One projectile of bullet secured during autopsy of Sarafeen Javed was also taken into possession alongwith her clothes vide recovery memo (Exh.PB).
Muhammad Bilal, JFS secured one bullet projectile and four cartridge cases from the place of occurrence and sealed the same into two separate parcels vide recovery memo which was attested by witnesses. Last worn clothes of the deceased and one bullet core/led bullet ( 4V^X-V ) contained in bottle/phial taken out from dead body of the deceased during autopsy, were hand over by doctor to Farida Nazir, 2643/LC (PW-15) who handed over the same to Ashfaq Ahmad, SI/I.O (PW-16) who secured the same vide recovery memo (Exh.PK). Sealed parcel containing one bullet projectile, sealed parcel containing empty cartridge cases, sealed plastic bottle/phial containing one bullet core were also sent to Punjab Forensic Science Agency, Lahore for comparison.
As per report of Punjab Forensic Science Agency (Exh.PU), pistol (P-1) recovered from the appellant was found in mechanical operation condition, three cartridge cases, out of four mentioned above were identified as having been fired from the pistol (P-1) recovered from the appellant, however, 4th empty cartridge case due to lack of sufficient suitable corresponding microscopic markings was not found as fit for comparison to identify or eliminate that it was fired from pistol (P-1) or not; projectile bullet was identified as having been fired from the pistol recovered from the appellant, however, bullet core was found as not suitable for comparison, therefore, said recovery has provided corroboration to the ocular account.
11. Now, coming to the defence version, Sheroz Yousaf (appellant) in reply to the question No.6 that "why this case against you and why the PWs have deposed against you? made following reply:- "The false case has been fabricated and concocted by the complainant party in league with the police. According to both the MLCs of Komal and Sheroz, the occurrence took place in the street as stated by the alleged injured Komal and Shoraz, the occurrence has taken place in the street at about 3.00 PM, by neighbours whereas Shahzad Bhatti PW-5 a nearby neighbourers and close relative of the complainant came to know about the occurrence at about 05:40 PM. Similarly Qasim Pervaiz PW brother of Asim, the given up eye witness of the case came to know about the occurrence at 05.00 pm. He lives adjacent to the house of complainant and he has stated that he left his house at 04.00 pm for drinking juice in satellite town market alongwith his friends and all the PWs tell different location about occurrence and take it 4/5 feet away from the northern wall of the house. According to MLCs the firing took place in the street and according to the history of MLCs the alleged injured do not nominate me as per history mentioned in MLRs and no one has been mentioned regarding firing in the street. Some unknown persons made firing at a quite distance from the house of the complainant and fire hit Sarafeen deceased at about 06:00 PM as the lady Doctor who had conducted the post mortem has given the time of death as 06.00 pm.
Later on, by getting false MLRs I have been falsely roped in this case as she has also mentioned that the time between injury and death about 45 minutes. So, the story narrated by the complainant party becomes totally false. I have been falsely roped in this case due to enmity as the complainant party suspect that whenever a raid regarding recovery of Narcotics Substance was conducted on their house by the police, I always pass information to the police. All the PWs being closely related to the complainant and the police officials have falsely deposed against me to strengthen the prosecution case."
Aforementioned version of the appellant is a bald denial, neither he opted to appear under Section 340(2) Cr.P.C. as his own witnesses in support of his defence version as well as in disproof of allegation levelled against him nor he opted to produce defence evidence in support of his version.
Furthermore, nothing could be found from the record in support of version of the accused. When defence version and prosecution version have been kept in juxtaposition, then defence version is of no avail to the appellant whereas prosecution case has been found as fully established against the appellant beyond shadow of doubt, therefore, convictions recorded against the appellant are upheld and maintained in toto.
However, as far as sentence awarded to the appellant under section 302(b), PPC is concerned, it is relevant to mention here that motive alleged by the complainant in application for registration of the case (Exh.PB) was that accused persons were making firing in the street who were refrained/forbidden due to which they became furious, entered into house of complainant, made firing and committed occurrence, however, it is nowhere mentioned in said application that complainant or deceased of the case or injured witnesses or other eyewitnesses/inmates of the house went into street, refrained the accused there from firing and came back into house; furthermore, any empty shell/cartridge case was not found from the street and any other resident of the street was not produced in support of said motive. It is also relevant to mention that in the scaled site-plan (Exh.PA) though street has been shown but the place where accused persons were making firing in the street has not been mentioned, so much so, any separate site plan of the street where accused persons were making firing has not been prepared. It also goes without saying that if complainant refrained accused persons from making firing, and accused persons became exasperated/infuriated and committed the occurrence, even then possibility of sudden flare up in the heat of passion and committing the occurrence cannot outrightly be ruled out.
When all these factors are taken into consideration in totality then it constitutes mitigating factor for reduction in quantum of sentence. So, we while exercising caution in the matter of sentence of "death" awarded to Sheroz Yousaf (appellant) by the trial court under Section: 302 (b) PPC for committing Qatl-e-amd of Sarafeen Javed, convert the same to "Imprisonment for Life" under Section: 302 (b) PPC, however, order passed by trial court regarding payment of compensation Rs.5,00,000/- under Section: 544-A(1) Cr.P.C. by appellant to the legal heirs of the deceased and recovery of compensation as arrears of land revenue under section 544-A(2) Cr.P.C. as well as in default thereof, to undergo S.I. for six months and remaining sentences under section 324 for causing murderous assault upon injured Sheroz Javed (PW-4), under section 324, PPC, for causing murderous assault upon injured Komal Javed (PW-5), under section 337F(iii), PPC and 452, PPC (as mentioned supra) recorded through impugned judgment are maintained/upheld. However, his all sentences of imprisonment shall run concurrently and he is also extended the benefit of Section: 382-B Cr.P.C.
12. In view of above, Criminal Appeal No.9929-J/2022 is dismissed with partial modification/reduction in sentence of the appellant as mentioned above.
13. Resultantly, death sentence awarded to appellant namely Sheorz Yousaf is NOT CONFIRMED and Murder Reference (M.R. No.13 of 2022) is answered in NEGATIVE.