SHAUKAT ALI Versus State

IJAZ AHMAD CHAUDHRY, J.--- This judgment will dispose of Criminal Appeal No.1805 of 2001 filed by Shaukat Ali appellant against the judgment dated 5-11-2001 passed by the learned Additional Sessions Judge, Lahore whereby he was convicted under section 302(b), P.P.C. and sentenced to death regarding murder of Zahid Hussain alias Labhu only with compensation of Rs.50,000 payable to the legal heirs of the said deceased under section 544-A, Cr.P.C. or in default of payment thereof to undergo S.I. for six months along with Murder Reference No.768 of 2001 sent by the learned trial Court under section 374, Cr.P.C. seeking confirmation of death sentence awarded to Shaukat Ali appellant-convict as similar questions of facts and law are involved. However, the appellant had been acquitted of the charge under section 302, P.P.C. for the murder of Arif deceased on the basis of compromise and the charge under section 324, P.P.C. while extending him the benefit of doubt. Through the same judgment Muhammad Iqbal co-accused was acquitted of the charge under section 302, P.P.C. on the basis of compromise and under section 324, P.P.C. on merits and Muhammad Ramzan co-accused was acquitted from all the charges while extending him the benefit of doubt and he was only accused of abetment.

2. The occurrence in the present case had taken place on 3-10-1997 at 1-00 p.m. at Mastt Iqbal Road, 4 kilometers from Police Station Factory Area, Lahore and statement (Exh.P.E.) of Khalid Pervaiz (P.W.8) was recorded at the Main Gate of General Hospital, Lahore, at 1-45 p.m. by Muhammad Arif S.-I. (P.W.17) on the basis of which formal F.I.R. (Exh.P.C.) was recorded at 2-05 p.m. on the same day by Abdul Hakim S.-I. (P.W.6).

3. The brief facts narrated in the F.I.R. by Khalid Pervaiz (P.W.8) are that on 3-10-1997 at about 12-20 p.m. Zahid and Asif deceased came to the house of the complainant. There Shaukat Ali appellant and Iqbal acquitted accused were playing pebbles and Zahid deceased restrained them whereupon the accused persons and his companion quarrelled with Zahid appellant and threatened him of the consequences. At about 1-00 p.m. both the deceased Asif and Zahid and injured Muhammad Amjad were called by Iqbal alias Bala acquitted accused out of the house and sat at a distance of 500/600 yards from the house upon a cot and started taking tea. In the view of the complainant Iqbal alias Bala made a signal to the appellant. Shaukat to come near the cot, who with his pistol started firing upon all the three resulting that they were injured. The complainant's side took them to the General Hospital but the victims Asif and Zahid Ali expired on the way to hospital and Muhammad Amjad was admitted to the hospital. Shaukat and Iqbal managed to run away.

4. The motive behind the occurrence was that Zahid deceased had restrained the accused persons to. play pebbles out of the house of the complainant.

5. Muhammad Arif S.-I. (P.W.17) after recording the statement of the complainant Khalid Pervaiz sent the same to the police station for registration of formal F.I.R. and went to the Emergency Ward of General Hospital, Lahore, inspected the dead bodies, prepared the inquest report of dead body of Asif Ali Exh.P.Q and injury statement Exh. P. R. , prepared the inquest report of dead body of Zahid Exh. P. S. and injury statement Exh.P.T. Amjad P.W. was admitted in the hospital as he was injured in the incident and made an application to the doctor for getting permission to record the statement of Amjad if he was fit to do so and he obtained copy of MLC issued by the doctor on examination of Amjad P.W. and sent the dead bodies to the mortuary for post-mortem examination and then he visited the spot along with the complainant and secured blood-stained earth from two places where Zahid Hussain deceased received injuries vide memo. Exh.P.K. and from the place where Asif was injured vide memo. Exh.P.L. He prepared the rough site plan Exh.P.U. and also took into possession five empties P.10/1-5 and a led bullet P.11 from the spot which were taken into possession vide recovery memo. Exh. P. M. On 4-10-1997 Muhammad ishaque and Rehmat Ali constables delivered the last-worn clothes of deceased Zahid i.e. Shalwar P.3, Vest P.4, T-Shirt P.5 stained with blood which were taken into possession vide memo. Exh. P. F. the above said constables also produced before him the last-worn clothes of deceased Asif i.e. Pent P.6, Nicker P.7, Shirt P.8 and Vest P.9 stained with blood which were taken into possession vide recovery memo. Exh. P. H. The said constables also produced before him a sealed phial containing six led bullets which were taken into possession vide recovery memo. Exh.P.G. On 5-10-1997 he had brought the Draftsman to the spot who took the rough notes and prepared the site plan Exh. P. A. and Exh. P. A. / 1. On 11-10-1997 he recorded the statement of Amjad injured P.W. On 19-10-1997 he arrested Shaukat and Iqbal accused. After disclosure by Shaukat appellant in custody on his pointation on 23-10-1997 Pistol P.1 was recovered along with three bullets P.2/1-3 after digging the ground near the electric pole in Gulistan Colony, Lahore, which was taken into possession vide memo. Exh.P.B. On 19-11-1997 Ramzan accused was arrested and he was sent to judicial lock-up.

6. After the completion of the investigation report under section 173, Cr.P.C. was submitted in the Court. Then copies of the documents required under section 265-C, Cr.P.C. were supplied to the appellant and the co-accused, the charge was framed which was denied by them and they claimed to be tried. The prosecution in order to prove its case produced as many as 17 witnesses. The ocular account was furnished by Khalid Pervaiz (P.W.8), Amjad Pervaiz (P.W.9) and Farzand Ali (P.W.10). The medical evidence had been produced through the statements of Dr. Shakil Ahmad (P.W.7) who conducted the post-mortem examination of Zahid Hussain on 4-10-1997 at 11-30 a.m. and Dr. Muhammad Khalil (P.W.13) who conducted the post-mortem examination on the same day and same time on the dead body of Muhammad Asif, and Dr. Capt. Munir Hussain (P.W. 16) who medically examined Amjad Ali on 3-10-1997 at 2-30 p.m. The investigation had been conducted by Muhammad Arif S.-I. (P.W.17). The remaining witnesses are of formal nature.

7. After the close of the prosecution evidence the statements of the appellants along with the co-accused were recorded under section 342, Cr.P.C. in which they denied the allegations and professed their innocence. However, to a question that "why this case is against you and why the P.Ws. have deposed against you?" Shaukat Ali appellant made the following reply which is reproduced as under:--

"The P.Ws. are not present and have deposed falsely being closerelatives of the deceased and due to previous grudge. The deceased and other vagabonds of the area used to gamble behind the tailoring shop of my brother who used to object to it and the complainant party nourished grudge against us and for this reason I and my brother Muhammad Ramzan have been falsely implicated. In fact the quarrel took place between the gamblers and as per reality two boys resorted to firing on account of which Zahid Hussain alias Labhu and Atif Ali suffered injuries. The occurrence was an unwitnessed incident and subsequently the police summoned close relatives of the deceased and a false story was concocted and I was victimized due to the reason stated above."

None of the accused had opted to make statement under section 340(2), Cr.P.C. or produced any defence evidence

8. The learned trial Court after hearing the arguments of both the parties has convicted the appellant. In the meantime on 30-5-2001. before the announcement of the present judgment the legal heirs of the deceased Asif Ali and Zahid Ali alias Labhu made statements before the learned trial Court that they had no objection if Muhammad Iqbal co-accused was acquitted as they had entered into compromise with him. Legal heirs of deceased Muhammad Asif also appeared in the Court on 25-9-2001 and also made statements that they had forgiven Iqbal co-accused along with Shaukat appellant and both of them were acquitted by the learned trial Court as a result of the effecting of compromise between them and the heirs of the respective deceased.

9. Learned counsel for the appellant contends that the complainant and other eye-witnesses were not present at the spot and they had contradicted each other on material points; that as per complainant the occurrence had taken place at 1-00 p.m. while according to the record of the General Hospital and dead bodies were received at 12-55 p.m. in the Emergency; that the complainant also failed to show any reason for his presence at the spot; that Farzand Ali (P.W.10) was also resident of two streets away from the place of incident and he also could not disclose any reason for his presence at the spot; that Amjad Pervaiz (P.W.9) only received simple injuries and he was not an eye-witness, but the injuries had been manipulated in order to make him an injured eye-witness; that Dr. Capt. Munir Hussain (P.W.16) during cross-examination admitted that the possibility of causing the said injuries by friendly hand could not be ruled out; that the said injuries cannot be declared as caused by bullets; that from the charge of causing injuries to Amjad Ali (P.W.9), the appellant had been acquitted and in such circumstances the injured P.W. was not a reliable witness, whose statement even otherwise had been recorded on 11-10-1997 after eight days of the occurrence without any explanation; that the eye-witnesses were not worthy of reliance and the prosecution had failed to prove the case against the appellant; that the post-mortem examination of both the deceased had been conducted after 24 hours which creates doubt that the case was get registered immediately after the incident at 2-05 p.m. when the dead bodies were already sent to the mortuary for post-mortem examination why the post-mortem examination was not conducted immediately but the time was consumed in concocting the story, manipulating the police papers and summoning the close relatives of the victims; that the recovery of weapon from the appellant had not been witnessed by the independent persons and only police constable had been produced to prove the same; that the report of the Forensic Science Laboratory in such circumstances when the recovery had been effected in violation of section 103, Cr.P.C. was not worthy of reliance; that nobody had witnessed the occurrence and the prosecution had miserably failed to prove the case against the appellant beyond any shadow of doubt, who may be acquitted.

10. Learned counsel for the State on the other hand have opposed the appeal on the ground that Amjad Pervaiz (P.W.9) was an independent witness, who had received the injuries during the incident; that the appellant had committed a heinous offence, he was named in the promptly lodged F.I.R. as a single accused who made firing and the witnesses had no enmity or grudge to falsely implicate the appellant in the present case; that there was no question of misidentity of the appellant as it was a broad-daylight occurrence and that the appellant had acted in a brutal manner, whose conviction and sentence may be maintained.

11. We have heard the arguments of the learned counsel for the parties and also perused the record with the due care and caution.

12. The occurrence in the present case according to the prosecution had taken place at 1-00 p.m. and the matter was reported to the police on the same day at 1-45 p.m. by Khalid Pervaiz complainant (P.W.8) through statement (Exh.P.E.) recorded by Muhammad Arif S.-I. (P.W.17) at Main Gate of General Hospital on the basis of which F.I.R. was drafted at the police station the same day at 2-05 p.m. In the statement under section 154, Cr.P.C. the complainant had given the details of the incident and also explained that he was resident of Usaama Block, Nishter Colony and driver by profession, who on the day of incident had come to the house of his sister situated at Masat Iqbal Road. According to the complainant when his nephew (sister's son) Zahid alias Labhu and his friend Asif Ali had come to the house, he was also standing in front of the house whereas Shaukat Ali appellant and Muhammad Iqbal acquitted accused were playing pebbles in the street, who were restrained by Zahid deceased from doing so and due to this reason Shaukat Ali left for their house while threatening to teach a lesson for forbidding them to play pebbles. At about 1-00 p.m. they were present in the house of Saleem Zargar when Iqbal acquitted accused took along with him both the deceased Muhammad Amjad injured also accompanied them. They sat on a cot at a distance of 500/600 yards and started taking tea. The place of occurrence was a plot. All of a sudden the appellant came and went near the cot and then fired repeatedly at Zahid alias Labhu, Asif and Amjad, who became injured and two of them namely Zahid and Asif afterwards died.

13. To prove the ocular account the prosecution produced three witnesses namely Khalid Pervaiz (P.W.8), Amjad Pervaiz (P.W.9) and Farzand Ali (P.W.10). Though P.W.8 was a chance witness yet he had explained that he had come to see the house of his sister, when the instant incident had taken place. He successfully faced the test of cross-examination regarding his presence at the place of incident. All the three witnesses remained consistent on material points regarding the place of incident, time of incident and the manner in which the incident had taken place with some minor variations which could occur with the elapse of time as their statement had been recorded on 22-4-2000 after about 2-1/2 years of the incident. It is an admitted fact that all the three eye-witnesses had no previous enmity or grudge to falsely implicate the appellant in the present case, who was known to the witnesses previously and the appellant was running a shop. Muhammad Arshad brother of the appellant was a tailor master and his shop was adjacent to the place of incident. During cross-examination the question of misidentity of the appellant had never been raised. All the three witnesses had given the minute details of the incident. The site plan was prepared on 7-10-1997 on the pointing out of the witnesses and a perusal of the same shows that the occurrence had taken place in the Bazar. It was a daylight occurrence and people were present in the Bazar at the said time, the shops were opened and in such circumstances the occurrence could not be unwitnessed. Even otherwise all the three eye-witnesses were not related inter se. Only complainant Khalid Pervaiz was the paternal-uncle of the deceased Zahid Ali alias Labhu. Amjad Pervaiz (P.W.9) and Farzand Ali (P.W.10) were not related to the deceased or inter se. The appellant was a single accused who was alleged to have fired at both the deceased namely Zahid alias Labhu and Asif Ali and the injured P.W. Amjad Pervaiz. The eye-witnesses cannot be declared as false witnesses. They had not widened the net to involve the other persons by attributing the other injuries and if there was any mala fide on the part of the witnesses they could easily involve the other persons in the present case inimical to them but the witness had only attributed all the fires to the appellant. There was no question of substitution of the appellant by letting off the real culprit when the witnesses were not inimical towards him. Learned counsel for the appellant has mainly contended that the eye-witnesses were not present at the spot on the sole ground that they were only chance witnesses. The chance witness can also be relied upon if he proves that he was present with some explanation. The complainant Khalid Pervaiz explained that he had come to the house of his sister and admittedly the deceased Zahid was his nephew (sister's son) and coming to the house of the relative was not an improbable story. He was subjected to lengthy cross-examination but nothing could be brought on the record about the duty hours or his hobbies to doubt his presence at the place of incident and that normally he could be present there. Amjad Pervaiz (P.W.9) was resident of the same vicinity and his house was about 400/500 yards from the place of incident. Similarly Farzand Ali (P. W.10) also resided two streets away at a distance of 200 yards from the house of Amjad Pervaiz. It is not denied that the two eye-witnesses namely Amjad Pervaiz and Farzand Ali resided in the same vicinity. At the time of occurrence the Bazar was opened and their presence at the spot was also not improbable. Nothing had been brought on the record by the defence about their place of business and possibility of their presence at any other place in connection with their usual business or service. On the other hand they claimed them to be eye-witnesses, who were residents of the same locality and we have no reason to disbelieve their version. Even otherwise Amjad Pervaiz (P.W.9) had received fire-arm injuries and he was medically examined by Dr. Capt. Munir Hussain (P.W.16) on 3-10-1997 i.e. the day of incident at 2-30 p.m. and the doctor observed that Amjad Pervaiz (P.W.9) had received two fire-arm injuries on his left foot and the injuries were fresh. In such circumstances the receiving of injuries by Amjad Pervaiz during the incident cannot be ruled out and his presence at the spot is not at all doubtful. Amjad Pervaiz had no grudge or enmity with the appellant or any relationship with both the deceased. We do not find any force in the argument of the learned counsel for the appellant that the said fire-arm injuries were manipulated as in the absence of previous enmity or grudge between the appellant Shaukat Ali and the said Amjad Pervaiz, he could not taken the risk of manipulating the fire-arm injuries on his foot merely to become a witness in a double murder case, when he had also no relationship with the said deceased persons. The other contention of the learned counsel for the appellant is that his statement was recorded on 11-10-1997 after about eight days of the incident. We have noticed that P. W.9 was a young boy and aged about twenty years. The allegation against them was that they were playing pebbles before the occurrence and due to the fear of the police he might have avoided to join the investigation immediately happened due to the fear of the police. It is also note able that this witness had no interest in the prosecution case being not related to the deceased and he was a young boy, who would have been avoiding to appear before the police and become a witness to avoid enmity with the accused party who also belonged to the same vicinity merely because of some delay in recording the statement of an injured witness under section 161, Cr.P.C. he cannot be out rightly disbelieved. The possibility of running from the hospital after getting discharged himself from the hospital could be due to the fear of the police as he would have avoided to make the statement in a prosecution case which is not an easy task and it is becoming very difficult for the witness to make the statement in the Courts as it causes inconvenience to the witnesses as well specially when a witness has no interest in the case. We find that the ocular account furnished .by the three witnesses was confidence-inspiring and . the matter was reported to the police immediately.

14. The next argument of the learned counsel for the appellant is that the post-mortem had been conducted on the next day after 24 hours due to the non-availability of the police papers. If the police had failed to produce the papers after sending the dead bodies to the mortuary it alone is not sufficient to cause any dent in the present case as the prosecution had not consumed any time for involving number of persons in the present case by widening the net and by attributing every injury to their enemies. There is no question of mis-identity of the appellant, who had been attributed all the injuries and there was no enmity or motive with the P.Ws. to falsely implicate the appellant in the present case. We find c that the story narrated by the eye-witnesses was quite natural and no exaggeration was made. Though Amjad Peryaiz injured P.W. had not mentioned the names of the other witnesses yet we have found that Amjad Pervaiz had made a natural statement without any tutoring and it cannot be expected from a boy of 21/22 years of age that he could cover all the aspects of the case while making the statement in the Court when he was not habitual to make such statements in the Courts. The ocular account furnished by the prosecution had fully established that it was the appellant Shaukat who had fired with his pistol at the place of incident resulting into causing of injuries to Zahid alias Labhu and Asif Ali deceased and Amjad Pervaiz (P.W.9) as well.

15. The next contention of the learned counsel for the appellant is that the evidence of Amjad Ali has been wrongly relied upon by the learned trial Court, when it has not convicted and sentenced the appellant for causing the injuries upon his person. We have perused the said portion of the judgment. Though the doctor had not ruled out the possibility of manipulating of the said injuries yet he had not made definite opinion with the reasons in this regard. Mere opinion of the doctor made during cross-examination by the defence side without any material to support the same cannot be preferred over the ocular account furnished by the eye-witnesses, who had proved their presence at the spot. It has been proved on the record that P.W.9 had received the fire-arm injuries in the same occurrence, who was medically examined immediately thereafter and the finding of the learned trial Court for his acquittal under section 324, P.P.C. is not based on cogent reason but as no appeal has been filed against the acquittal of the appellant under section 324, P.P.C., we cannot convict the appellant under section 324, P.P.C. in an appeal filed by him against his conviction. We fully disagree with the learned trial Court with its finding declaring the injuries received by Amjad Pervaiz to be doubtful, which is not binding upon us while deciding the appeal.

16. The appellant was arrested by Muhammad Arif S.-I. (P.W.17) on 19-10-1997 and he led to the recovery of pistol through memo. Exh.P.B., which was witnessed by Farzand Ali (P.W.10) and Ghulam Rasool constable (P.W.5). The objection taken by the learned counsel for the appellant is that the witnesses of recovery did not belong to locality of the place of recovery and the recovery proceedings had been conducted in violation of section 103, Cr.P.C. It has been repeatedly held by this Court and the Honourable Supreme Court of Pakistan that the police officials are as good and bad witnesses as public witnesses can be and it is being generally noticed that in the society the public witnesses feel reluctance to join the investigation to avoid enmity with the criminals and the police has no option except to join in the investigation the persons available at the time of effecting of recovery. Both these recovery witnesses remained consistent regarding the place of recovery and the manner in which the recovery had been effected after digging out the land, which also means that the said place of recovery was in the exclusive knowledge of the appellant. On the other hand five empties were recovered from the spot on 3-10-1997 vide memo. Exh.P.M. and the said empties were kept in Malkhana by P.W.3 Aftab Pervaiz on 3-10-1997 and then were sent to 'the office of Forensic Science Laboratory on 6-10-1997 through Rehmat Ali constable (P.W.12) and the pistol was also kept in Malkhana by P.W. 1 Muhammad Siddique constable on 23-10-1997 and it was sent to the office of Forensic Science Laboratory on 29-10-1997 through Muhammad Ashiq constable P.W.2. The empties according to the report (Exh.P.Z.) of F.S.L. were received there on 7-10-1997 and the weapon of offence was received on 28-10-1997 it is proved that the recovery of pistol was effected on 19-10-1997 after about 12 days of receiving the empties in the office of F.S.L. and according to the F.S.L. report empties C.1 to C.5 were declared to have been fired with the pistol .30 bore which was recovered from the appellant. So the recovery of weapon and the report of F.S.L. (Exh.P.Z.) provide independent corroboration to the ocular account. ?????????

17. In view of the above discussion we have no hesitation in holding that the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt and thus, his conviction under section 302(b), P.P.C. for causing the murder of Zahid Ali alias Labhu deceased is maintained. So far as quantum of sentence is concerned, we do not find any mitigating circumstances for awarding lesser punishment to the appellant. as the appellant had committed the offence in a brutal manner, who fired repeated shot at the place of occurrence resulting into death of two innocent persons, though in the case of Asif Ali deceased he has been acquitted on the basis of compromise. Five empties were recovered from the spot. P.W.9 also received injuries. The age of the appellant at the time of incident was more than 19 years as per his narration made in the statement recorded under section 342, Cr.P.C. on 7-9-2001 wherein his age was mentioned 23 years and the occurrence had taken place on 3-10-1997. We feel that the learned trial Court was quite justified in awarding normal penalty of death to the appellant, which is maintained and this appeal having no merit is dismissed. ?????????

18. The death sentence awarded to Shaukat Ali appellant-convict by the learned trial Court is confirmed and Murder Reference No.768 of 2001 is replied in the affirmative.

H.B.T./S-113/L ??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.