PLJ 2010 SC 388
[Appellate Jurisdiction]
Present: Raja Fayyaz Ahmed, Muhammad Qaim Jan Khan & Syed Zawwar Hussain Jaffery, JJ.
SHOUKAT ALI--Appellant
versus
STATE--Respondent
Crl. Appeal No. 12 of 2009, decided on 16.6.2009.
(On appeal from the judgment dated 11.3.2008 of the
Lahore High Court, Rawalpindi Bench,
----Ss. 302, 324, 337-F(ii) & 337-L(ii)--Conviction and sentence recorded against accused by trial Court--Challenge to--Appreciation of evidence--Recovery of churri was affected after 16 days--Looses its credence which could not have been used as a circumstantial evidence corroboratory in nature--Injured witnesses were not produced at the trial, which cast serious doubt on the prosecution story--Accused after commission of the offence had absconded and after his arrest on his pointation pursuant to his disclosure blood stained churri was recovered--Ocular witnesses--Held: Prosecution witnesses had suffered injuries caused by sharp-edged weapon on different parts of their bodies which correspond to their versions--The witnesses were which correspond to their versions--The witnesses were cross-examined by defence but their testimony remained un-shattered and could not be discredited--Version of the complainant, as to nature of the injuries suffered by PWs corresponds to one given by the complainant in her statement recorded by Police Officer pursuant to which FIR was registered--Prosecution case rested on piece of evidence, motive, ocular account, medical evidence, recovery of blood stained churri, absconsion of the accused after commission of offence coupled with the other pieces of evidence, such as, blood stained earth secured from the place of occurrence by the I.O., blood stained last worn clothes of deceased--Further held: No justification committed qatal-e-amd of deceased and caused injuries on the person of the ocular witnesses, who intervened to rescue the injuries all empty handed but successively fell prey to accused one after the other for no fault of theirs, hence, the accused was rightly found guilty on the charge and appropriately punished--Appeal was dismissed. [Pp. 393, 394 & 395] A, B & D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Pakistan Penal Code, (XLV of 1860)--Ss. 302, 324, 337-F(ii) & 337-L(ii)--Plea taken by accused in his statement u/S. 342, Cr.P.C. did not OPT to make statement on oath nor produced any witness in defence--Plea introduced was indicative of the fact--Accused did not dispute his presence at given venue of crime though he claimed that the occurrence did not take place in the manner in which it was narrated by ocular witnesses, which stand fully corroborated by other pieces of evidence concurrently believed by Courts below. [P. ] C
Mr. Arshad Ali Ch., ASC for Appellant.
Mr. Shahid Abbasi, DPG for State.
Date of hearing: 16.6.2009.
Judgment
Raja Fayyaz Ahmed, J.--This Criminal Appeal with the leave of the Court has been directed against the judgment dated 11.3.2008 passed by the learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No. 209 of 2001 filed by appellant Shoukat Ali s/o Ghakhar Khan against his conviction under Sections 302, 324, 337-F(ii) and 337-L(ii) PPC recorded by the Additional Sessions Judge, Rawalpindi sentencing him lo death, as well as; to various other terms of imprisonment has been dismissed and the Murder Reference No. 148 of 2002 forwarded to the learned High Court alongwith record of the case for confirmation of the death sentence, as required under Section 374 Cr.P.C. has been affirmed.
The appellant was found guilty by the learned trial Court for committing Qatl-e-Amd of Munir Hussain under Section 302(b) PPC and sentenced to death, as well as; directed to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. in default whereof to further undergo six months S.I. He was also convicted and sentenced as under:--
(i) Under Section 324 PPC for attempting to the life of PW Mst. Sakina Bibi and sentenced to 10 years R.I. with a fine of Rs.20,000/- or in default to payment of fine to further under go SI for six months.
(ii) Under Section 324 PPC for attempting to life of Mst. Zarina Bibi (PW-4) sentenced to 10 years RI with a fine of Rs.20,000/- or in default of payment of fine to further undergo SI for six months and further convicted under Section 337-L(ii) for causing hurt to Mst. Zarina Bibi
(PW-4) and sentenced to two years R.I
(iii) Under Section 324 PPC for making an attempt on the life of Zaheer Ahmed PW and sentenced to 10 years R.I. with a fine of Rs.20,000/- or default whereof to further SI for six months and under Section 337-L(ii) PPC sentenced to two years R.I. for causing hurt to PW Zaheer Ahmed.
(iv) Under Section 324 PPC for attempting on the life of Tanvir Ahmed PW sentenced to 10 years R.I. with a fine of Rs.20,000 and in default whereof to further undergo six months S.I. Also sentenced to two years R.I. under Section 337-L (ii) for causing hurt to PW Tanvir Ahmed.
(v) Under Section 324 PPC for attempting on the life of PW Wahid Mehmood and sentenced as above. He was further sentenced to pay Daman of Rs.20,000/- to injured PW Wahid Mahmood under Section 337-F (iv) PPC in default whereof to further undergo SI for six months.
2. The appellant was sent-up for trial in case FIR No. 356 dated 24.7.1996 registered at Police Station Gujar Khan, District Rawalpindi (Exh-PA) initially under Section 324 PPC and subsequently when Munir Hussain succumbed to the injuries Section 302 PPC besides Section 337 PPC was added to the charge consequent upon receipt of the medical examination reports of the injured PWs.
FIR in the case was registered on the basis of written complaint made by Safina Bibi (PW-2). In her complaint, it was alleged by Safina Bibi PW/complainant that on the above said date at about 9.00 a.m. when she was present in front of her house, appellant Shoukat committed a mischief with her, which she rebuked and remarked that he (appellant) should have first taken care of his sister (Mst. Zahida Parveen), who was abducted by a co-villager Tariq. She further alleged that on the same day at about 5.00 p.m. she alongwith Munir Hussain younger brother of her husband, Mst. Zarina Begum wife of elder brother of her husband and Sakina Bibi were present in the lane in front of her house when accused Shoukat (appellant) armed with a churri by exhorting lalkara came there and in a loud voice asked her that he would teach lesson for the sarcastic remarks, whereupon Munir Hussain attempted to save her, to whom accused Shoukat inflicted churri blow on the right side of his abdomen and he fell down. Mst. Zarina came ahead to intervene and she was also stabbed on the left of her back by Shoukat and she fell down on which Mst. Sakina attempted to rescue her who was also subjected to churri blow by accused Shoukat on her right calf. According to the complainant, on her hue and cry PWs Zaheer Ahmed and Tanvir Ahmed, the sons of her sister came to the spot to rescue them on which Shoukat accused stabbed Zaheer Ahmed on the left side of his back, as well as; inflicted churri blow on the back of Tanvir Ahmed. In the meanwhile, PW Wahid Muhammad son of Muhammad Banaras nephew of her husband reached on the spot to rescue them on which Shoukat stabbed Wahid at his left buttock and left elbow.
3. The appellant was indicted in view of the accusation and the incriminating material submitted before the learned trial Court with the report filed under Section 173 Cr.P.C. for causing Qatl-e-Amd of Munir Hussain deceased, attempted murderous assault and causing injuries to the PWs to which he did not plead guilty. The prosecution in order to substantiate the accusation produced 15 witnesses. Ghulam Murtaza, constable was examined as Court witness.
4. Muhammad Ashraf SI (PW-13) was entrusted with the investigation of the case. He received information that the accused was apprehended by Police of P.S. Dhumman, Chakwal, so he proceeded to Chakwal on 15.1.1998 for obtaining his custody but on the said date the District Magistrate was not available and on the following day, custody of the accused was handed over to him under orders of the District Magistrate from District Jail, Jhelum and was formally arrested in the instant case.
During interrogation, Shoukat Ali on 19.1.1998 disclosed that he can effect the recovery of churri (P-1) used by him in the commission of reported crime pursuant to which blood stained churri in the presence of Tanvir Ahmed (PW-5) and Saeed Ahmed (PW-6) was recovered on his pointation from his house concealed in a box.
5. The accused after close of prosecution evidence was examined under Section 342 Cr.P.C. In his said statement, in answer to Question No. 17, the accused responded as under:--
"Babar, Saeed,
The accused did not opt to make his statement in disproof of charge within the meaning of Section 340(2) Cr.P.C. nor produced any witness in defence.
6. The learned
7. As injured PWs namely, Zaheer and Abdul Wahid were not produced at the trial by the prosecution, therefore, for the reasons recorded in the impugned judgment convictions and the punishments awarded to the appellant for attempting murderous assault and causing injuries to these PWs were set aside.
8. The learned ASC for the appellant and Mr. Shahid Mahmood Abbasi, learned DPG for the State have been heard. The impugned judgment, as well as; the one passed by the learned trial Court have been perused and considered in the light of the entire evidence available on record with their assistance.
9. According to the learned counsel for the appellant, recovery of churri was affected after 16 days of the alleged occurrence, which in the circumstances of the case, looses its credence which could not have been used as a circumstantial evidence corroboratory in nature, moreover; injured PWs Zahid and Wahid were not produced at the trial by the prosecution, which cast serious doubt on the prosecution story. According to the learned counsel, had the prosecution evidence been appraised in its true perspective, it would not have resulted in the conviction of the appellant on the charge, which the prosecution failed to establish beyond shadow of any reasonable doubt.
10. Controverting the above noted arguments, the learned DPG vehemently contended that the presence of the ocular witnesses namely, Mst. Safina Bibi (PW-2) complainant and the injured PWs Sakina Bibi, Mst. Zarina Bibi and Tanvir Ahmed at the place of occurrence i.e. the lane in front of their house was quite natural and their presence at the given time and venue of the offence could not be doubted out of whom the above mentioned PWs even suffered injuries caused by the sharp-edged weapon fully corroborated by medical evidence. The prosecution case, as reflected from the report lodged by PW Safina Bibi, finds support from the evidence of the above said PWs coupled with- the statement of the second I.O. who found the complainant and the other injured PWs on their way to the hospital in the given conditions. The learned State counsel pointed out that the accused after commission of the offence had absconded and after his arrest on his pointation pursuant to his disclosure blood stained churri in presence of the PWs was recovered by the I.O. and as per report of the Serologist, the same was stained with blood including the clothes of the deceased taken into possession by the Investigating Officer. He maintained that evidence on all material particulars led by the prosecution was consistent, straightforward and reliable. Similarly, the ocular account of the PWs despite lengthy cross-examination remained firm, natural and convincing duly corroborated from the other pieces of circumstantial evidence, which the defence failed to impeach or discredit, hence; the impugned judgment is unexceptionable.
11. The contentions put forth on behalf of the parties by their learned counsel have been considered and the record of this case, as above noted, perused minutely and carefully.
12. It is an undisputed feature of the case that the complainant Safina Bibi, (Zaheer and Abdul Wahid injured PWs not produced) and all the PWs including the injured witnesses, who appeared at the trial were empty handed. The site-map prepared by the Investigating Officer on his first visit to the place of occurrence lend further support to the version of the complainant with regard to the venue of the alleged offence being the lane in front of her house. The injured PWs are related to the complainant, as disclosed by her in her statement recorded by the police officer on the basis of which formal FIR was registered, hence; presence of these PWs in the lane could not be doubted. These PWs undisputedly had no ill-will, malice or any animosity to falsely depose against the appellant. Dr. Muhammad Ilyas (PW-10) on the date of occurrence i.e. 24.7.1996 at about 7.10 p.m. examined Sakina Bibi
(PW-3) and thereafter examined Mst. Zarina Begum (PW-4), Tanvir Ahmed (PW-5), Zaheer Ahmed PW and Wahid Mahmood PWs one by one, who issued their respective MLRs, tendered in evidence by the said medical officer. According to which, these PWs had suffered injuries caused by sharp-edged weapon on different parts of their bodies mentioned in such reports which correspond to their versions. These witnesses were cross-examined by the defence but their testimony remained un-shattered and could not be discredited. The version of the complainant, as to the nature of the injuries suffered by the PWs corresponds to the one given by the complainant in her statement recorded by the police officer pursuant to which formal FIR was registered.
The deceased Munir Hussain was also examined by Dr.
Muhammad Ilyas (PW-10) on 24.7.1996 at about 7.00 p.m. when he was brought to
him in
13. Despite as noted above in support of the plea taken by the accused in his statement under Section 342 Cr.P.C, he did not opt to make statement on oath nor produced any witness in defence, inasmuch as; the plea so introduced is indicative of the fact that the accused did not dispute his presence at the given venue of the crime though he claimed that the occurrence did not take place in the manner in which it was narrated by the ocular witnesses, which stand fully corroborated by the other pieces of circumstantial evidence concurrently believed by both the learned Courts i.e. the learned trial Court and the High Court. The findings of the guilt recorded by the learned Courts; on appraisal of evidence made by us have been found to be perfectly in accordance with the principles laid down by this Court for the safe administration of criminal justice which thus, is not open to any interference. The appellant in the circumstances of the case, for no justification committed Qatal-e-Amd of deceased Munir Hussain and caused injuries on the person of the ocular witnesses, who intervened to rescue the injureds all empty handed but successively fell prey to the accused one after the other for no fault of theirs, hence; in our considered opinion, the appellant was rightly found guilty on the charge and appropriately punished.
14. Thus; for the foregoing reasons, this appeal having no merits, is dismissed.
(R.A.) Appeal dismissed.