Ashfaque alias Shaka vs The State
This jail petition before the Supreme Court of Pakistan arose out of the petitioner's conviction under Section 302(b) of the Pakistan Penal Code 1860, where the trial court awarded a death sentence that was subsequently commuted to imprisonment for life by the High Court. The primary legal questions centered on whether the defection of an injured prosecution witness dismantled the prosecution's case, whether the acquittal of co-accused required independent corroboration, and whether a purported delay in conducting the autopsy damaged the prosecution's narrative. The Supreme Court dismissed the petition and declined leave to appeal. The Court held that the subsequent departure of an injured witness, who had earlier supported the case during initial investigation, does not by itself destroy the prosecution case when other ocular witnesses named in the crime report provide consistent and unblemished testimony. Furthermore, the petitioner was specifically assigned the solitary fatal shot, corroborated by forensic ballistic matching, and the timing of the autopsy was justified as the deceased had survived for a period after the assault.
- Does the subsequent defection of an injured witness alone destroy the prosecution's case when other reliable eyewitnesses consistently support the charge?
- Whether the conduct of an autopsy on the day following an occurrence can be treated as fatal prosecution delay where the injured victim survived for a period before succumbing to injuries?
- Can a conviction under Section 302(b) of the Pakistan Penal Code 1860 be maintained on the consistent ocular account of eyewitnesses corroboratively supported by a matched weapon recovery despite the acquittal of co-accused?
- Section 302(b), Pakistan Penal Code 1860
ORDER
QAZI MUHAMMAD AMIN AHMED, J.---Indicted for homicide and murderous assault alongside co-accused, since acquitted, the petitioner was returned a guilty verdict by a learned Addl. Sessions Judge at Kasur; vide judgment dated 30.05.2013, convicted under clause (b) of section, 302 of the Pakistan Penal Code, 1860, he was sentenced to death with a direction to pay compensa tion, altered into imprisonment for life by a Division Bench of the Lahore High Court Lahore vide impugned judgment dated 29.11.2016, vires whereof, are being assailed through jail petition, argued by Mian Liaqat Ali, ASC.
2. According to the prosecution, on the fateful day, i.e. 18.6.2010, at 5:30 p.m., the petitioner armed with .a .12 caliber short-gun accompanied by ,acquitted co-accused, differently armed, fatally shot Khurshid Bibi, 50/55, in the backdrop of a minor altercation of even date; Ejaz co-accused, assigned a shot to Shahid Maseeh PW, was acquitted as the latter did not support the prosecution case. Incident was reported at 7:00 p.m. same day; the injured were medically examined under a police docket 7:30 p.m the deceased, after struggling for life, later succumbed to the injury; her autopsy was conducted following day at 3:00 p.m. Arrested on 11.7.2010, pursuant to a disclosure, the petitioner led to recovery of short gun (C-1), founded wedded with the casings, secured from the spot. Dissatisfied with police investigation, the complainant preferred to prosecute his case through a private complaint with the assistance of eye-witnesses, namely , Hanif Mashi (PW-1) and Shoukat Maseeh .(PW -2); Shahzad alias Shahid Maseeh (CW -1), injured defected from the scene.
3. Learned counsel for the petitioner contends that desertion of Shahzad alias Shahid Maseeh (CW-1) raised the entire edifice of prosecution case to the ground, inasmuch as, being an injured and close relative, he furnished details diametrically different than the case set up in the crime report and as such there was no occasion for the trial Court to return a guilty verdict on the strength of evidence inherently flawed, a circumstance that escaped High Court's notice in concurrence of error. It is next argued that evidence disbelieved qua majority of the accused cannot be pressed into service to maintain petitioner's conviction without independent corroboration, lacking hopelessly . A delayed autopsy heavily reflected upon the prosecution case, concluded the learned counsel. The learned Law Of ficer has faithfully defended the impugned judgment.
4. Heard. Record perused.
5. Despite setbacks, usual more often than not, prosecution case vis--vis the petitioner is firmly structured on the foundations un-trembled by the defection of an injured witness; he was medically examined under a police docket even before the autopsy was conducted; in those agonizing moments, he supported the prosecution case in his statement recorded by the Investigating Officer; it was much late in the day that he opted to part ways with the prosecution for reasons best known to him and, thus, his mysterious departure, though embarrassing to the prosecution, nonetheless, by itself, does not cast away its case in the presence of witnesses named in the crime report faithfully supporting their case.
Learned counsel for the petitioner despite detailed survey of the evidence has not been able to point out any flaw or infirmity in the statements of the witne sses that may reflect upon their presence at the spot having seen the solitary fatal shot singularly assigned to the petitioner costing the deceased her life in broad daylight. Investigation though somewhat controversial, nonetheless, is pointed towards petitioner's culpability , further supported by recovery of weapon matched with the casing. The autopsy cannot be viewed as delayed as after initially gasping for life, the deceased breathed her last later and it is for this reason, autopsy was conducted the following day. The Courts below having rightly assessed the evidence, no interference is called for Petition fails. Leave declined.