SAIF-UR-REHMAN Versus State
MUHAMMAD ALAM KHAN, J.--- This is jail criminal appeal filed by the convict-appellant Saif-ur-Rehman through the Superintendent Central Prison D.I. Khan against the judgment, dated 25-10-2005 passed by the learned Sessions Judge-I, D.I. Khan, whereby he has been convicted under section 302(b), P.P.C., and sentenced to life imprisonment, and to pay fine of Rs.1,00,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., in default to suffer further one year simple imprisonment, vide case F.I.R. No.37, dated 18-3-2003 registered under section 302, P.P.C. at Police Station Kulachi. The complainant, Muhammad Aslam, is also aggrieved from the said judgment of the learned trial Judge and has challenged it through Criminal Revision 39 of 2005. Since both the appeal and revision are the outcome of one and the same occurrence and common judgment, these are being disposed off by this single judgment.
2. The prosecution story as narrated by the complainant Muhammad Aslam in his first information report is to the effect that on the eventual day he was present in his house when at about 0900 hours Mureed Hussain (P.W.) informed him that his father was done to death at 0800 hours by Saif-ur-Rehman son of Imam Bakhsh with Kalashnikov in the fields of Aziz-ur-Rahman situated in the limits of village Maddi whose dead body was lying on the spot. On this information, the complainant along with co-villagers and relatives rushed there and found his father killed. The occurrence was stated to had been witnessed by Mureed Hussain, Fatehullah (abandoned P.W.) and Suleman (P.W.7) and motive for the offence was disclosed to be dispute over women folk.
3. The accused remained absconder when he was arrested on 25-6-2003 after about three months of the occurrence. On completion of investigation challan was put in Court against the accused where he was formally charge-sheeted but he pleaded innocence. Therefore, in order to prove its case, the prosecution examined twelve witnesses whereafter statement of the accused was recorded under section 342, Cr.P.C. but neither he wished to be examined on oath under section 340(2), Cr.P.C. nor produced any defence evidence. The learned trial Judge after evaluating the materials brought on record in light of the arguments advanced at the bar by the learned counsel for the parties found the accused guilty of the offence charged with and thus on conviction sentenced him as mentioned above. Hence these appeal and revision.
4. Mr. Muhammad Iqbal Khan Kundi, learned counsel for the appellant, vociferously contended that the F.I.R. was lodged with a considerable delay, as the occurrence had allegedly taken place at 0800 hours which was reported to the police at 1030 hours. The delay has not been plausibly explained by the complainant neither in his initial report nor in the evidence recorded during trial of the case. He submitted that this aspect of the case was overlooked by the trial Court. It was next urged that the medical evidence is in conflict with the ocular account given by the prosecution witnesses. Insofar as the assertion of P.W.7 Suleman and P.W.8 Mureed Hussain is concerned, they have categorically stated that the deceased was hit from the front side although the post-mortem report and inquest report of the deceased proves the entrance of wounds on the back and right side of the deceased which have been further highlighted in the pictorial attached with the medico-legal report. It was also submitted that it is discernible from the evidence of the P.Ws. that at the relevant time the deceased was riding on a bicycle and the same has not been taken into possession by the Investigating Officer.
5. Elaborating his arguments, the learned counsel submitted that the scene of occurrence is located in a trench on two sides of the water channel and the accused was not visible to the alleged witnesses of the prosecution. Thus, the learned trial Court has fallen into an error in awarding the punishment of life imprisonment to the convict/appellant. He urged that the occurrence is not supported by a strong motive nor the motive alleged has been proved by the prosecution. Reliance in this respect was placed on the cases of Yaqoob Shah v. The State PLD 1976 SC 53, Muhammad Hanif v. The State PLD 1993 SC 895, Ghulamullah and another v. The State 1996 SCMR 187, Abdur Rehman v. The State 1998 SCMR 1778 and Wahid v. The State PLD 2002 SC 62.
6. Learned counsel for the complainant and State vehemently argued that the keeping in view of distance between the place of occurrence and the police station as well as the fact that the occurrence was witnessed by two independent witnesses, namely, P.W.7 Suleman and P.W.8 Mureed Hussain and then the information was conveyed to the complainant who is the son of the deceased and the distance between the place of occurrence and police station being 12/13 kilometers if calculated will prove that the F.I.R was lodged with all reasonable promptitude. It was next contended that the two witnesses are fully independent, totally disinterested and their statements recorded by the trial Court could not be shattered in cross-examination by the defence. The statements of the eye-witnesses are in line with the prosecution story, they are consistent and without any motive to falsely implicate the convict in the case. It was also submitted that if the evidence in the shape of ocular account is confidence inspiring and not based on malice or grudge, then even if the conflicting medical evidence which is in the shape of corroborative piece of evidence, will not diminish the reliability of ocular evidence. They prayed for the dismissal of the appeal as well as for enhancement of the sentence from life imprisonment to the normal penalty of death. It was further urged that once it was proved on the record that the prosecution had proved the case beyond any shadow of doubt, then there were no mitigating circumstances for lesser punishment.
7. We have carefully scanned the entire record and anxiously considered the valuable arguments of the leaned counsel for the parties.
8. Perusal of the record reveals that the sad occurrence in this case as described in the F.I.R. (Exh.P.A.) occurred at 0800 hours and the report was lodged' at 1030 hours on the same day, i.e. 18-3-2003. It is also on the record that the report was lodged by Muhammad Aslam son of the deceased Ghulam Sultan who was not present on the spot but the witness Mureed Hussain informed him about the occurrence. The record further reveals that Mureed Hussain came from the scene of occurrence to the place where the complainant was residing and on this information the complainant along with his relatives went to the scene of occurrence which must have consumed sufficient time. Besides, the distance between the scene of occurrence and the police station is shown to, be 12/13 kilometers and thus, in such-like situation, the delay is a natural consequence which has been sufficiently explained by the prosecution in the evidence.
9. As far as the reliability of the eye-witnesses is concerned, we have noted that neither of them is related to either party or have got any cordial relation to any one of them. They were cross-examined at length, but nothing was brought on the record to show their interest with the deceased party or any motive to falsely charge the convict/appellant. Therefore, we have come to conclusion that their testimony is confidence inspiring and no inherent flaw is found therein. The presence on the spot of the examined eye-witnesses, namely, Mureed Hussain (P.W.7) and Suleman (P.W.8) cannot be doubted as at the relevant time they were present in the lands in vicinity of their village.
10. The objection of the learned counsel for the appellant was that the testimony of these two eye-witnesses is not corroborated by the medical evidence because the left side of the deceased being exposed to accused, there should have been all entrance wounds on the left side of the deceased, but the same is negated by the post-mortem report which shows that almost all the entrance wounds are on the right side of the deceased. This point is not tenable as entry wound No.11 was received by the deceased at his buttock and it was on the left side. So obviously, after receipt of this entrance wound, the deceased could not balance himself and he must have fallen down whereafter his right side could have been exposed towards the accused due to which he received all the remaining entrance wounds on his right side. Therefore, the eye-witness account is not in conflict with the medical evidence. The eye-witnesses have seen the occurrence from a distance of about 45 paces and they are not expected to give microscopic description in this regard.
11. Even if the eye-witness account is in conflict with medical evidence, the confidence-inspiring ocular account cannot be overlooked. Reliance in this respect is placed on the cases of Saeedullah Khan v. The State 1986 SCMR 1027, Muhammad Khan and another v. The State 1999 SCMR 1220, Muhammad Ilyas and another v. The State 1993 SCMR 1602, Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 and Qurdarullah v. The State and Hussain v. The State 2006 PCr.LJ 934.
12. The argument of the learned counsel for the appellant that the accused was in the trench and not visible to the eye-witnesses is also without force, because when a person starts firing on another, he rises naturally and once a person rises, he becomes visible to very one and thus, the accused was, duly visible to the eye-witnesses. Further more there was no obstacle between the eye-witnesses and the accused. The authorities cited by the learned counsel for the appellant mentioned above being distinguishable from the facts and circumstances of the case in hand are thus of no help to him.
13. Strong stress was laid by the learned defence counsel on the motive that there were strained relations between the wife and the accused who is the daughter of the deceased and that the motive has not been proved on the record. In this respect, the prosecution has produced Mst. Haseena Bibi, daughter of Ghulam Sultan 'deceased as P. W.11, who is the wife of the convict/appellant and she has confirmed the strained relations with her husband/appellant and due to his cruelty she was not living with him. She is further supported by her neighbour P.W.9 Ghulam Hashim who is also a disinterested witness having knowledge and he has categorically stated that there used to be quarrel between the convict/appellant and his wife Mst. Haseena Bibi and consequently she was taken out of the house and sent to her parents house which is the natural consequence that the accused was annoyed with the act of his wife Mst. Haseena Bibi which has resulted in the present occurrence and thus the prosecution has proved its case beyond any shadow of ? reasonable doubt.
14. With regard to the abscondence of the appellant, it is on the record that the reply of the accused with regard to the question of his abscondence was in negative and also denied the proceedings under sections 204/87, P.P.C. which is not the correct picture of the case. The guilt of the convict/appellant has been proved by the testimony of two disinterested eye-witness whose statements could not be shattered in cross-examination. Thus, he was rightly held guilty of the offence charged with.
14-A. With regard to the quantum of sentence, the evidence brought on record commensurate with the sentences awarded to the convict-appellant because the family dispute exists in the background of the occurrence and the exact cause of the offence is shrouded in mystery and it is not discernible from the record of the case. This is also not visible from the record that what passed between the accused and the deceased in relation to the matrimonial tie of Mst. Haseena Bibi with the convict/appellant. There is no ground for enhancement of the sentence awarded to the convict-appellant.
15. Consequently, both the appeal and the criminal revision being without merits are dismissed.
H.B.T./57/P ???????????????????????????? ??????????????????????????????????????????????????????????? Appeal dismissed.