MUHAMMAD IMRAN Versus State
This criminal appeal arises from a judgment of the Additional Sessions Judge, Sheikhupura, convicting the appellant under Section 302(b) of the Pakistan Penal Code 1860 and sentencing him to life imprisonment with compensation and default terms, alongside benefits under Section 382-B of the Code of Criminal Procedure 1898. The prosecution alleged that the appellant, along with co-accused, fired at the deceased resulting in his death. The core legal questions involved whether the ocular testimony was corroborated by medical evidence, whether the conviction could be sustained on the same evidence upon which co-accused were acquitted, and whether the prosecution proved its case beyond reasonable doubt. The Lahore High Court held that the medical evidence contradicted the ocular account regarding the nature of the weapon and injuries, that independent corroboration was lacking particularly given the acquittal of co-accused on the same evidence, and that the eyewitnesses were unreliable. Consequently, the Court allowed the appeal, set aside the conviction, acquitted the appellant, and dismissed the connected revision petition.
- Whether a conviction for murder can be sustained when the ocular account is contradicted by medical evidence regarding the weapon used?
- Can a conviction be maintained against an appellant on the same set of evidence that led to the acquittal of co-accused?
- Whether the testimony of closely related and interested witnesses requires independent corroboration to sustain a conviction?
- What is the legal effect of a negative firearms expert report on the recovery of the weapon alleged to have been used in the crime?
- Section 302(b), Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
KHAWAJA MUHAMMAD SHARIF, J.--- This judgment shall dispose of Criminal Appeal No.835 of 2002 and Criminal Revision No.657 of 2002 as they arise out of the same judgment, dated 23-4-2002, passed by the learned Additional Sessions Judge, Sheikhupura, whereby, after having tried the appellant and others, convicted him under section 302(b), P.P.C. and sentenced to imprisonment for life with a further direction to pay a compensation of Rs.1,00,000 as provided under section 544-A, Cr.P.C. in default whereof to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C. was extended to the appellant. However, benefit of doubt was extended to three acquitted accused, namely, Nishat Anjum, Farrukh Nadeem and Ghulam Ashraf and Criminal Appeal No.874 of 2002 filed against their acquittal was dismissed on 31-10-2002 by a learned Division Bench, of this Court for non-prosecution and no application for restoration was filed.
2. Brief facts of the case, as explained by Muhammad Nawaz complainant (P.W.5) in the F.I.R. (Exh.P.A./1) are that on 18-7-1998 at 3-30 p.m. his deceased son Afraz was coming from his land on a motorcycle towards Narang while the complainant along with Shahbaz and Ikraam were following him on a car, Afraz stopped his motorcycle at Narang More where appellant along with three acquitted accused and absconding accused Javed Akhtar armed with .30 bore pistols were already present, all of them started firing at Afraz with their respective weapons which hit on his left flank and right lower leg who fell down and succumbed to the injuries in Health Centre Narang. The motive was a dispute of land.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial where the prosecution in order to prove its case against the accused, produced nine prosecution witnesses during the trial.
4. Learned counsel for the appellant in support of this appeal submits that no specific injury was attributed to any of the accused; that injury No.1, which is attributed to the appellant by the P.Ws., could not have been caused by a .30 bore pistol because ten crime-empties of .30 bore were recovered from the spot and the said injury could not have been caused by a single shot and it seems it was caused either by a kalashnikov or a carbine or gun; that the. P.Ws. are chance witnesses, were not residents of the place of occurrence and are closely related to the deceased; that the F.I.R. was recorded after due deliberation and fabrication; that no independent witness was produced although place of occurrence was a thoroughfare; that the ocular account in this case is not corroborated by the medical evidence; that report of the Fire-arm Expert is negative so recovery of pistol is of no avail to the prosecution; that as far as motive is concerned neither the said Naziran from whom the complainant had allegedly purchased the land in question nor any sale-deed qua the same sale or power of attorney, which was allegedly given by the complainant to the deceased qua the land in question, was brought on record. Even the complainant admitted this fact that he did not produce any evidence to the said effect during the course of investigation which fact was further admitted by the Investigating Officer; that as far as injuries are concerned, the remaining injuries are on the right thigh and leg of the deceased; that it was a case of two fires and not bulk of fires as alleged; that on the same set of evidence conviction of the appellant cannot be maintained or awarded as three co-accused were acquitted by discarding the same evidence; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court.
5. On the other hand, learned counsel for the complainant assisted by the learned Additional Advocate-General Punjab Ch. Muhammad Hanif Khatana and Mr. Amjad Hussain, the learned Deputy Prosecutor-General submits that the appellant was convicted on the basis of injury No.1. which fact was even admitted by the learned defence counsel during the trial; that the P.Ws. are residents of the same vicinity and their movement in the same town is not unnatural; that merely on the basis of relationship their testimony cannot be discarded; that substitution is a rare phenomenon as there was no deep-rooted enmity between the parties; that the ocular account in this case is corroborated by the medical evidence; that it is not humanly possible to specify injuries in such-like circumstances; that the doctor has denied the suggestion that the injuries were caused by a .12 bore gun; that appellant's abscondence is deliberate; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that this appeal is liable to be dismissed.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. The occurrence in this case , had taken place on 18-7-1998 at 3-30 p.m. the matter was reported to the police on the same day at Markaz-e-Sehat Narang at 4-10 p.m. while the formal F.I.R. was recorded at 4-20 p.m.
8. In all there are five accused in the F.I.R., namely, Gulfam Ashraf, Imran (appellant), Farrukh Nadeem, Nishat Anjum and Javed (proclaimed Offender). Three acquitted accused are real brothers inter se.
9. The deceased in this case is Afraz, complainant is Nawaz who is real father of the deceased and appeared as P.W.S. P.W.6 is Shahbaz who is real brother of the complainant while Akram, brother-in-law of the deceased, was given up by the prosecution.
10. Appellant was arrested on 5-6-1999. He got recovered a pistol. From the place of occurrence ten crime-empties of pistol were recovered and report of the Fire-arm Expert is negative in this regard which negates the prosecution case.
11. P.W.4 conducted the post-mortem examination on 19-7-1998 at 9-30 a.m., there are eight fire-arm injuries on the person of the deceased, some of them are exit wounds, the probable time between injuries and death was immediate and the time between death and the post-mortem examination was about 18 to 20 hours. The injuries are as under: --
(i) Multiple 7 in numbers fire-arm lacerated wound in an area of 15 c.m. x 4 c.m. x going deep on the left lateral wall of abdomen on the mid axillary line 2 c.m. above the iliac crest. The each wound was 1 c.m. x 1 c.m. x going deep and the margins were inverted.
(ii) A fire-arm lacerated wound 1 c.m. x 1/2 c.m. x going deep on the back of right thigh upper part 6 c.m. below the right buttock. The margins were inverted.
(iii) A fire-arm lacerated wound 1 c.m. x 1 c.m. x going deep on back of right thigh lower part 15 c.m. below injury No.2.
(iv) A fire-arm lacerated wound 3 c.m. x 1 c.m. on back of right thigh lower part 5 c.m. injury No.3, wound of exit, it corresponds to injury No.3.
(v) A fire-arm lacerated wound of entry 2 c.m. x 1 c.m. x going deep on the back of right leg upper part 4 c.m. from popliteal fossa. The margins inverted.
(vi) A fire-arm lacerated wound of exit 2-1/2 c.m. x 1-1/2 c.m. on back of right leg upper part 3 c.m. from and corresponds to injury No.5. The margins averted.
(vii) A fire-arm lacerated wound of entry 1 c.m. x 1 c.m. x going deep on the back of right leg middle part 15 c.m. below injury No:6. The margins were inverted.
(viii) A fire-arm lacerated wound of exit 2 c.m. x 1 c.m. on the outer aspect of right leg 7 c.m. from and corresponds to injury No.7. The margins were averted."
Injury No.1 shows that it was multiple. 7 in numbers fire-arm lacerated wound in an area of 15 c.m. x 4 c.m. This injury with no stretch of imagination could have been caused by a pistol and could have only been caused by a burst of a kalashnikov or .244 bore gun or a pump action or a carbine.
12. Although learned counsel for the defence, during trial, has brought on record qua attribution of injury No.1 to the appellant but the 1B ocular account in this case is not corroborated by the medical evidence and no other injury is attributed to him.
13. In the F.I.R. the case of the prosecution was that five accused persons, including the appellant, while armed with pistols fired simultaneously at the deceased.
14. Apart from above, benefit of doubt was extended to three acquitted accused, namely, Nishat Anjum, Farrukh Nadeem and Ghulam Ashraf and Criminal Appeal No.874 of 2002 filed against their acquittal was dismissed on 31-10-2002 by a learned Division Bench of this Court for non-prosecution and no effort was made since then for its restoration meaning thereby that the complainant was satisfied with their acquittal and he had no grievance against those acquitted accused. How this Court, on the same set of evidence, can maintain or award conviction to the appellant. For maintaining a conviction, independent corroboration is required which is very much lacking in this case. Merely by stating that the appellant was declared Proclaimed Offender and it was a big circumstances against the appellant to 'maintain his conviction, cannot be taken into consideration for the reason that the ocular account in this case is not corroborated by the medical evidence, as mentioned above.
15. In my considered opinion, both the eye-witnesses, namely, Nawaz and Shahbaz, who are real father and real uncle of the deceased, were not present at the spot and did not witness the occurrence, so, their testimony is discarded from the evidence. This Court is of the view that, they, to become witnesses, they concocted the story (as per F.I.R.) that they were following the deceased on a car who was going on a motorcycle.
16. As far as motive part of the prosecution case is concerned, neither the said Naziran, from whom the complainant had allegedly purchased the land in question nor any sale-deed qua the same sale or power of attorney, which was allegedly given by the complainant to the deceased qua the land in question, was brought on record. Even the complainant admitted this fact that he did not produce any evidence to the said effect during the course of investigation.
17. It has also come on record that the first Investigating Officer, namely, Faqirullah, belonged to the complainant party, although he had denied the suggestion by stating that marriage took place between his daughter and one of the relation of the complainant after the occurrence.
18. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt to sustain conviction. The prosecution case is full of doubts and on the basis of such a shaky evidence, the conviction and sentence awarded to the appellant cannot be maintained because the same has not come through unimpeachable sources, is untrustworthy, unreliable and cannot stand the test of judicial scrutiny. Resultantly, this appeal is allowed, the impugned judgment is set aside, the appellant is acquitted from the case and shall be released forthwith if not required to be detained in any other case. For afore-referred reasons, the concerned revision petition i.e. Criminal Revision No.657 of 2000 is dismissed having no merit.
N.H.Q./M-10/L Appeal allowed.