SANAULLAH Versus State

ORDER

MALIK HAQ NAWAZ, J.--- The convict/appellant stood trial on the basis of FIR No. 36/2011, initially lodged under sections 337/341/34, P.P.C. but later on due to the demise of injured Durash Khan, the same was converted into section 302, P.P.C.

2. Four accused who were charged in the FIR for pelting stones on the deceased, the other co-accused namely Satbar, Irshad and Sartaj were arrested but were released under section 169, Cr.P.C. for want of sufficient evidence. It is pertinent to mention here that when the above co-accused were released under section 169, Cr.P.C., the complainant Sadar Khan moved an application to IGP Gilgit-Baltistan for transfer of investigation, which was transferred to IP Abdul Samad who again found the above named three accused innocent and submitted challan of the case against the present appellant.

3. In order to prove the case against the accused, prosecution examined 10 PWs and closed its case on 01-04-2014. The statement of the accused was recorded on 11-04-2014 and he did not opt to be examined on Oath under section 340(2), Cr.P.C. The arguments of the parties were heard on 06-11-2014 and the case was posted to 20-11-2014 for announcement of judgment.

4. On 20-11-2014 the trial Court rendered verdict of guilt against the accused, whereby he was awarded life imprisonment under section 302(b), P.P.C. and a fine of Rs.2,00,000/-(two lac) was imposed under section 544-A, Cr.P.C. to be paid to the legal heirs of the deceased" Durash Khan, however the benefits of section 382-B, Cr.P.C. were extended to the accused. The operative part is contained in Para 7 of the impugned judgment which is re-produced for ready reference:-

7. On the question of punishment this Court is of the opinion that since the occurrence was in a sudden fight and occurrence was not a result of pre-planning therefore in view of the principle laid down by the Hon'ble Supreme Court in case cited "Allah Dawaya v. The State" (PLD 1993 SC page 35) and Supreme Court Azad Jammu and Kahmir in the case cited "Raja Sarfraz Azam Khan's case (2005 YLR page 584) accused Sanaullah son of Kamal resident of Juglote Tangir District Diamer is convicted under section 302(b), P.P.C. and is sentenced to life imprisonment. Benefit of section 382-B, Cr.P.C. shall be given to him. He shall pay Rs.200000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased Durash Khan son of Lashkar Khan, In default of payment of compensation he shall undergo further simple imprisonment of six months.

5. The appellant being dissatisfied from the judgment of the learned trial Court filed Criminal Appeal No.46/2014, which was heard on 03-04-2017 by this bench.

6. The learned counsel for the convict/appellant contended that the order/judgment of learned trial Court is devoid of any legal justification and the basic principles governing dispensation of criminal justice. The learned counsel for the appellant further contended that 4 persons were equally charged for pelting stones on the deceased without any specification and later on a tailored story was woven to tight the rope around the neck of present appellant. Per learned counsel the evidence of the witnesses is not divisible and either it has to be believed or not to be believed in its entirety. The investigation of the case was conducted dishonestly and the real facts of the case have been intentionally twisted. There is no postmortem report of the deceased available on record and only an injury sheet Exh. PW-9/A is available on the file, which does not qualify to be termed as corroboratory piece of evidence, as it is short in standard and does not specify which of the injury contributed towards death of deceased. The learned counsel lastly submitted that the stone, which was taken into possession by the I.O. vide Exh. PW-6/B was not sent to chemical expert for expert opinion, neither the same was identified by the appellant. Moreover, almost all the PWs are closely related to the deceased and their evidence should not be believed without corroboration, which is lacking in the case. The appellant be acquitted from the charges honourably to meet the ends of justice.

7. On the other hand the learned Dy. Advocate General vehemently contended that FIR lodger was not an eye-witness and he received information from a boy of 12 years. The accused Sanaullah is directly charged in the promptly lodged FIR and PW-7 Aslam Khan and PW-8 Nisar Ahmad have specifically charged the convict/ appellant for fatal injury caused near occipital region. The presence of deceased, PWs and the accused at the place of occurrence is admitted by defence by putting various incriminatory questions. The learned Dy. Advocate General further contended there was no previous enmity between the parties as such question of substitution does not arise. The learned Dy. Advocated General lastly submitted that the learned trial Court has already taken a lenient view while awarding punishment to the accused and the same may be maintained.

8. We have heard counsel for both the parties at a considerable length. The learned counsel for appellant was provided another opportunity to rebut the arguments raised by the prosecution and shatter the evidence of PW-7 Aslam Khan and PW-8 Nisar Ahmad, who in unequivocal terms charged the appellant for causing fatal injury to deceased near his ear. The learned defence counsel tried his level best but could not succeed to convince the Court. For the purpose of convenience, the Court statements of PW-7 and PW-8 are reproduced to depict a clean picture of occurrence.

PW-7 Aslam Khan:

Aslam Khan son of Abdul Satar aged about 22 years resident of Muhallah Pathan Juglote Tangir.

Stated that on 12-11-2011, about 50/60 persons of Muhallah Pathan had gathered in the Muhallah/ village for appointing members to Zakat and Usher committee. Two persons namely Nisar Ahmed and Abdullah Jan were contesting candidates for the committee members. For settlement of the issue, Jirga proceeding was continue. In the meantime, one Sher Jamee uttered hot words to us and then there he pelted stone towards us and due to the reason quarrel between the two group started. During the quarrel, accused Sanaullah made a stone below just behind the right ear of deceased Durash Khan. Due to stone below, deceased Durash Khan fell to the ground. In the meantime, Satber Khan, Irshad and Sartaj also pelted stones at the deceased who was then in injured condition. In the meantime, the people present there came between and separated the aggressive persons from each others. Deceased Durash Khan who was then in injured condition was shifted to Tangir Hospital for treatment by me, Nisar Ahmed, Wali and Sadar Khan. From the hospital PW Sadar Khan went to police station for lodging FIR Exh. PW-2/A. The medical authorities of Civil Hospital Tangir referred injured Durash Khan to DHQ Hospital Chilas for specialized treatment but at about 1:30 a.m. (midnight) the dead body of deceased Durash Khan was brought at Tangir in his house. Next day at about 10:00 a.m. police came there and took the dead body in possession under memo of Exh.PW-7/A. The dead body was examined by the police and handed over the same to LRs for burial. Me and PW Nisar Ahmed put thumbed impression on the memo. The police then went to the site of the occurrence and took stone in possession and secured the same under memo Exh. PW-7/B. Me and PW Nisar Ahmed put thumb impression on the said memo. The stone produced before Court in sealed parcel is the same by which accused made a stone below to the deceased. The police carried site proceeding on my pointation. Thereafter police recorded my statement and the statement of PW Nisar Ahmed under section 161, Cr.P.C.

PW-8 Nisar Ahmed:

Nisar Ahmed son of Umur aged about 23 years resident of Muhallah Pathan Juglote Tangir.

Stated that on 12-11-2011, at Asar prayer time the people of village Pathan Muhallah were gathered in the field owned by one Dara Khan for electing members to the Zakat and Usher committee. During this time one Sher Jamee used filth language and pelted stone towards us and by this fighting was started between two rival groups. In the meantime, accused Sanaullah made a stone blow which landed behind the right ear of deceased Durah Khan who then and there fell to the ground. Satbar, Sartaj and Irshad were also present and took part in the fight. We shifted Durah Khan to hospital who was then unconscious. In Civil Hospital Tangir a dispenser was available there who checked Durash Khan and referred to DHQ Hospital Chilas for treatment but the death body of the deceased was brought back to his house at midnight. On next day at about noon time police came there and took the dead body in possession and then visited the site of occurrence wherefrom the police took in possession one stone as crime article and secured the same under memo. and packed the same in a sealed back. P.W. Aslam was also with me at the time site inspection. The stone was secured under memo Exh. PW-7/A the thumb impressions appearing on the memo are mime and correct. Thereafter the dead body was handed over to the LRs vide memo Exh. PW-8/A. I put my signature a report prepared by the police showing that deceased had received 04 injuries. Thereafter the police recorded statements of mine and PW Aslam under section 161, Cr.P.C.

9. The reproduction of the above statements of two eye-witnesses shows that the eye-witnesses remained consistent almost on all the vital points of occurrence. As observed by the trial Court that not a single suggestion has been put to these PWs regarding their presence at the place of occurrence or the manner of occurrence. The relationship of the witnesses with the deceased is not a disqualification, as section 17 of Qanun-e-Shahadat does not impose any such restriction. Now with the passage of time the view of the superior Courts has become unanimous that mere relationship of witnesses is no ground to discard his evidence, however, if deemed necessary the Court can ask for corroboration, if there are some lacunas in the prosecution evidence. As evident from the contents of FIR and the statements of prosecution witnesses, there was no previous enmity between the parties and the occurrence was a sudden affair in which deceased Durash Khan lost his life. The narration contained in FIR (Exh. PW-1/A) corroborates the statements of eye-witnesses. Furthermore the cause of death has not been challenged/ disputed by the defence. PW-9 SIP Jamaluddin got exhibited the injury sheet as Exh. PW-9/A and deposed in Court accordingly. Even otherwise medical evidence is only an expert opinion, which cannot always be accepted with mathematical precision and alternatively its absence will not effect on the merits of the case if the evidence is straight forward and reliable. There is another factor which runs counter to the innocence of the accused. The occurrence took place on 12-11-2011. The accused was charged directly in the FIR. Proclamation under section 204, Cr.P.C. was issued against him and his co-accused but the appellant and co-accused went underground and were arrested on 05.03.2013 and such long abscondence remained unexplained. Abscondence of an accused can never remedy the defects in the prosecution case neither it is necessarily indicative of guilt, but when it is long and unjustified, without any explanation, it could be taken as a corroboratory evidence and cannot be termed as "mere abscondence".

10. The longstanding unexplained abscondence of the appellant is a corroboratory evidence for the prosecution case. The reasons given by the learned counsel for the appellant are not appealing one. Relevance and the corroborative evolution of abscondence cannot be denied on any interpretation of law. Reliance is placed in this regard in a case titled "Ali Khan v. The State" reported in 1980 SCMR 474. The relevant paragraph is reproduced as under:

"11. ...His sudden disappearance for a short while could possibly by explained as an impulsive act of "sheer timidity", aimed at avoiding "risk of disgrace", torture of police, or the "ordeal of a criminal trial". Such a long absence, in this case of over a year, could not possible be explained by reference to an ephenmeral emotional reaction when the parties were already accustomed to serious criminal litigation. He turned or was apprehended only after his property was attached and was in the process of being auction. The reason given for such a prolonged abscondence have not satisfied any of the Courts, dealing with the matter. The relevance and the corroborative value of abscondence cannot be denied on any interpretation of law applicable to it. Its strength of weakness, sufficiency or otherwise can be matter of debate in a given case. It is therefore, the facts of each case which will finally determine the place and the weight to be given abscondence for proving a case beyond reasonable doubt. In evaluating the factors, the antecedents of the absconder, his occupational habits and limitations, the period of abscondence, the specific explanation for it have all to be considered in juxtaposition with the other evidence on the record. ..."

11. In view of above discussion, we are of the view that the prosecution has succeeded to establish the guilt of the accused, through material, convincing and reliable evidence. The appellant has been rightly convicted by the trial Court and has been shown leniency in matter of sentence. We do not find any infirmity in the well reasoned judgment of the trial Court, which is upheld in toto.

12. The appeal is dismissed being meritless.

WA/146/GB Appeal dismissed.