SAKHI JAN Versus State
SAYYED MAZAHAR ALI AKBAR NAQVI, J.--- Sakhi Jan son of Abdul Razzaq, caste Pathan, resident of Rahim Town, House No.5, Street No.10/11, New Shakrial Sadiqabad, Rawalpindi, appellant, was involved in case FIR No.845/2007, dated 14.12.2007, offence under section 302, P.P.C., registered with Police Station Sadiqabad, Rawalpindi and was tried by learned Additional Sessions Judge, Rawalpindi. The learned trial court seized with the matter in terms of judgment dated 30.09.2010 convicted and sentenced the appellant as under:-
> Under Section 302(b), P.P.C., sentenced to death as Ta'zir with direction to pay Rs. 2,00,000/- as compensation to legal heirs of deceased in terms of Section 544-A, Cr.P.C. and in case of default in payment thereof, to undergo S.I. for six months.
2. Feeling aggrieved by the judgment of the learned trial court, Sakhi Jan/ appellant assailed his conviction through filing Crl. Appeal No.628 of 2010, whereas the learned trial court forwarded Murder Reference No.70-RWP/2010 for confirmation or otherwise of death sentence inflicted upon the convict in terms of Section 374, Cr.P.C. The complainant also filed Crl. Revision No.320/2010 seeking enhancement in compensation amount. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.
3. Prosecution story as portrayed in the FIR (Exh.PM) lodged on the complaint (Exh.PD) of Abdul Hameed son of Abdul Azeez, caste Dhund Abbasi, (PW-4) is that he is resident of House No.SC/167, Street No.8, Shaheen Colony Shakarial, Rawalpindi, and runs a mechanic shop near Saba Masjid at Shakarial. On 14.12.2007, the complainant along with his elder brother Chan Zeb and Muhammad Zahid son of Muhammad Ilyas, resident of Shakrial handed over their private vehicle to the driver bearing registration No.6840/RIR at Chungi No.8, walked towards their house. When they reached in the Dispensary street, at about 7:45 p.m. from the opposite side, Sakhi Jan Pathan son of Razzaq Khan, resident of Shakrial, emerged there. At that time brother of the complainant Chan Zeb was ahead. Sakhi Jan accused raised lalkara to brother of the complainant asking him to make his escape if he could do it and while taking out pistol .30-bore from his dub , made a straight fire shot upon Chan Zeb, which landed at his abdomen. Second fire shot made by the accused hit brother of the complainant at his chest, who fell down on the ground. Due to fear the complainant and Muhammad Zahid stepped backward. In lying condition the accused, one after the other, made 7/8 fire shots, which landed at nose, eyebrows and different parts of body. On hearing the reports of fire shots, many persons attracted to the spot and on seeing them, the accused while brandishing pistol, fled away towards other side of the street. The complainant rushed towards his brother, however, he had already breathed his last.
Motive behind the occurrence as disclosed in the crime report was that there was dispute between Chan Zeb brother of the complainant and the accused over payment of some amount regarding the vehicles. The complainant averred that due to this grudge the accused had committed the occurrence.
4. On receipt of information regarding the occurrence, Tariq Mehmood, S.I. (PW-12) proceeded towards the place of occurrence where Abdul Hameed made his statement, which was reduced into writing (Exh.PD) and the complainant signed the same in token of its correctness. After endorsing police karvai, the complaint was transmitted to Police Station for registration of formal FIR. Thereafter, the Investigating Officer, inspected the dead body, prepared inquest report (Exh.PJ), drafted application for post mortem examination (Exh.PI) and dispatched the dead body to mortuary for autopsy under the escort of Asjid Ali 494/C (PW-10). He also recorded statements of the prosecution witnesses under Section 161, Cr.P.C. From the spot, the Investigating Officer secured blood stained earth through cotton and made into sealed parcel (Exh.PB). He also collected ten crime empties of pistol .30-bore (P-4/1-10) through recovery memo Exh. PC. The Investigating Officer prepared rough site plan of the place of occurrence (Exh.PK). After the postmortem examination last worn clothes of the deceased Shalwar, auzarband, Qameez (P-1/1-3), bunyan (P-2) and sweeter (P-3) were produced before the Investigating Officer, which he secured vide recovery memo Exh.PG. On reaching the Police Station the Investigating Officer handed over the case property to the Moharrar Malkhana for safe custody and onward transmission to the quarter concerned. On the direction of the Investigating Officer and on the pointation of the PWs, Khurram Shehzad, Draftsman, on 17.12.2007 took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PA and Exh.PA/1), which was made part of the file. On 04.01.2008, the Investigating Officer arrested the appellant and obtained his physical remand. During the course of investigation, on 06.01.2008, in pursuance of disclosure, the appellant led to the recovery of pistol .30-bore (P-1) along with two magazines (P-2/1-2), which the Investigating Officer took into possession vide recovery memo Exh.PD. The Investigating Officer also prepared rough site plan of the place of recovery (Exh.PL).
5. During the course of investigation having found the appellant guilty, the Investigating Officer while placing his name in column No.3 prepared report under Section 173, Cr.P.C. and sent the same to the Court of Sessions en-routed through Illaqa Magistrate as provided under Section 190(2), Cr.P.C. The learned Additional Sessions Judge, vide order dated 25.06.2008, formally charge sheeted the appellant to which he pleaded not guilty and claimed trial.
6. Prosecution in order to substantiate its case produced as many as thirteen (13) prosecution witnesses. Abdul Hameed (PW-4) is the complainant of the case while Muhammad Zahid (PW-5) is the witness of occular account. On presentation of complaint, Rahat Nawaz, S.I. (PW-13) had chalked out formal FIR while Khurram Shehzad, Draftsman (PW-2) had prepared scaled site plan of the place of occurrence. Asjid Ali 494/C (PW-10) had escorted dead body to mortuary while investigation in this case was conducted by Tariq Mehmood, S.I. (PW-12).
Dr. Manzoor Ahmed Sahi (PW-11), on 14.12.2007, had conducted post mortem examination on the dead body of Chanzeb deceased and observed following injuries on his person:--
1. A lacerated wound of entry 4 x 2 cm started from left side of nose to right side bridge of nose through and through.
2. A lacerated wound of entry 0.5 x 0.5 cm on left side of eyebrow 1.5 cm on the left side of bridge of nose.
3. A lacerated wound of entry on left eyebrow on left side of injury No.2 is 4 cm.
4. A lacerated wound of entry on the right side below the chin.
5. A lacerated wound of entry 1 x 1 cm left side of sternal notch with blackening.
6. An entry wound 1 x 1 cm left side of upper lip.
7. An exit wound 6 x 4 cm on right parietal area with brain matter was coming out 8 cm above the ear.
8. An entry wound 1 x 1 cm on the right occipital area.
9. An entry wound with blackening 1.5 x 1 cm, 6 cm below the left nipple.
10. An entry wound 0.5 x 0.5 cm, 7 cm below the left nipple.
11. An entry wound 0.5 x 0.5 cm above the umbilicus.
12. An entry wound 0.5 x 0.5 cm on the upper part of the abdomen 16 cm above the umbilicus.
13. An exit wound 2 x 2 cm right scapular area.
14. An exit wound 2 x 2 cm on left occipital area.
15. An exit wound 1 x 1 cm on right lumber area 5 cm above the right iliac R/T.
16. An exit wound 2 x 1 cm on lower border of right side of chest. On the back 13 cm above the injury No.15.
17. An exit wound 1 x 1 cm right side back of chest.
18. A lacerated wound 1 x 1 cm right side of back of neck.
19. A lacerated wound 1 x 1 cm on back of neck."
After conducting the postmortem examination the doctor rendered the following opinion:-
"In my opinion, deceased was died due to injury Nos.1 to 19 collectively which damaged the brain, heart, liver, both lungs. These injuries led to severe haemorrhage, hypovolimic shock and ultimately death. All the injuries were caused by fire arm and were ante-mortem in nature. Such injuries are sufficient to cause death in ordinary course of nature.
Time between injury and death was immediate while between death and post mortem was within four hours."
Statements of rest of the prosecution witnesses are formal in nature.
7. On 17.10.2009, learned DDPP gave up Abdul Aziz, PW, being unnecessary. Vide his statement recorded on 27.10.2009 learned ADPP further gave up Ishtiaq Ahmed Abbasi, PW, again being unnecessary. On 26.07.2010, after tendering in evidence the report of Chemical Examiner (Exh.PN) and report of Forensic Science Agency (Exh.PO), learned ADPP closed the prosecution evidence.
8. The appellant was also examined under Section 342, Cr. P.C, wherein he opted neither to adduce evidence in his defence nor opted to appear as his own witness in terms of Section 340(2), Cr.P.C. in disproof of the allegations levelled against him in the prosecution evidence. While replying to the question why this case against him and why the PWs deposed against him, the appellant made the following deposition:--
"I am totally innocent. In fact the deceased was involved in a number of cases and he had enmity with a number of people. He was murdered by unknown assailants. Since I was at friendly terms with the deceased, therefore, I was falsely involved in this case."
9. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt, resulting into conviction of the appellant in the above stated terms.
10. Learned counsel for the appellant while advancing his arguments submitted that the impugned judgment has been recorded by the learned trial court in a slipshod manner without adverting to real facts of the case. Learned counsel vigorously argued that the occurrence in the instant case had taken place on 14.12.2007 at 7:45 p.m. while the matter was reported to the police after due deliberations and consultation with a delay of more than two hours at 9:50 pm, whereas, inter se distance between the place of occurrence and the Police Station was hardly 1-1/2. KMs. It was argued that the story narrated by the complainant in the crime report does not seem plausible. Learned counsel also raised serious questions about the presence of the prosecution witnesses at the place of occurrence at the relevant time particularly when the place of occurrence was not their usual passage. Learned counsel agitated that as a matter of fact the deceased was having enmity with different persons and he was also involved in 2/3 criminal cases. Further submitted that it was a blind murder having been committed by unknown accused, however, the appellant was made scapegoat by way of substitution. Learned counsel submitted that PWs of the occular account contradicted each other on salient features, hence they cannot be termed as truthful witnesses. Argued that even otherwise, the PWs, are closely related to the deceased, who made statement being interested witnesses. Learned counsel next argued that the medical evidence does not corroborate the prosecution version of occular account stricto sensu. It was contended on behalf of the appellant that as crime empties were transmitted to the office of Forensic Science Laboratory after arrest of the appellant, therefore, the positive report of the concerned quarter is inconsequential. Learned counsel finally contended that although the prosecution had set up a very specific motive, however, no evidence whatsoever was adduced to prove the same, hence at the most it is not a case of capital punishment and the learned counsel prayed for infliction of alternative sentence provided under the statute. In support of his contentions, learned counsel for the appellant placed reliance on the dictum of law laid down in the cases of Mirza ZAHEER AHMAD v. THE STATE (2003 SCMR 1164), ZULFIQAR HUSSAIN and another v. THE STATE (2011 SCMR 379) and IFTIKHAR MEHMOOD and another v. QAISER IFTIKHAR and others (2011 SCMR 1165).
11. Learned DDPP assisted by learned counsel for the complainant, on the other hand, vehemently opposed the contentions raised by learned counsel for the appellant with the submissions that the appellant was duly named in the promptly lodged FIR with specific role. Contended that according to averments of the crime report the appellant is sole proprietor of the occurrence, which was witnessed by Abdul Hameed, complainant/PW-4 and Muhammad Zahid (PW-5) and while appearing in the witness box both the prosecution witnesses substantiated the prosecution case with minute details. They remained coherent/consistent on salient features of the prosecution version and nevertheless they were tested on the touchstone of lengthy cross-examination but nothing contrary to the prosecution version could be brought on record. Learned Law Officer submitted that the medical evidence fully corroborates the prosecution case. Further argued that at the time of spot inspection, the Investigating Officer had collected ten crime empties which were dispatched to the office of Forensic Science Laboratory and after arrest of the appellant, pistol .30-bore was also recovered and report of the concerned quarter being positive, the same fully substantiates the prosecution case. It was next argued that during the course of investigation the appellant was found guilty and such findings of the Investigating Officer were never challenged before any higher forum. Moreover, the complainant and PW/4 had no ill-will to falsely substitute the appellant in place of real culprit(s). Regarding motive, learned counsel for the complainant stated that where the prosecution case is proved through direct evidence, the weakness/absence of motive cannot be termed as a ground for lesser punishment. While summing up his arguments, learned counsel argued that the appellant took the life of an innocent person by making repeated fire shots, therefore, in view of evidence adduced by the prosecution, the learned trial court rightly inflicted normal penalty of death provided under the statute.
12. While arguing Crl. Revision No.320/2010, learned counsel for the complainant/petitioner argued that the accused/respondent took life of a young guy, hence the amount of compensation is liable to be enhanced.
13. Arguments advanced pro and contra have been heard. We have also minutely gone through the record available on file with the able assistance of learned counsel for the parties.
14. There is no cavil to this proposition that as per prosecution version the occurrence in the instant case had taken place on 14.12.2007 at 7:45 p.m. in the presence of the complainant and Muhammad Zahid (PW-5) where-after the appellant made his good escape. On receipt of information regarding the occurrence, Tariq Mehmood, S.1 (PW-12) proceeded there while covering a distance of 1-1/2 KMs where he recorded statement of the complainant and after endorsing police karvai thereupon, transmitted it to Police Station on the basis of which formal FIR was chalked out at 9:50 p.m. hence the delay of two hours, in peculiar circumstances of the case, does not imprint any negative inference on the prosecution version.
15. In order to substantiate its version the prosecution has led evidence qua (i) occular account, (ii) medical evidence, (iii) recovery of pistol and positive report of the office of Forensic Science Laboratory, as well as, (iv) investigation.
16. Occular account in this case is coming from the mouth of Abdul Hameed (PW-4) and Muhammad Zahid (PW-5). As far as Abdul Hameed is concerned, he is real brother of Chan Zeb deceased while Muhammad Zahid (PW-5) happens to be his close friend, who was accompanying them on the fateful day at the relevant time on way to their house. As far as identity of the appellant is concerned, it is an admitted fact that the parties were previously known to each other since years. Even it is not defence version that the appellant was not previously known to the PWs prior to the occurrence. While appearing in the witness box, both the complainant, as well as, Muhammad Zahid (PW-5) fully substantiated the prosecution case by giving minute details with regard to mode and manner of occurrence that when they were proceeding to their house on the fateful day in Dispensary Street how the appellant had emerged there and after raising lalkara made repeated fire shots upon Chan Zeb, which resulted into his instantaneous death. They were put to test of lengthy cross-examination, however, they remained coherent/consistent with each other on salient features of the prosecution version. The detailed cross-examination conducted during the course of trial has been minutely evaluated by this Court, which has compelled us to form a unanimous opinion that their deposition is quite natural and even slightest doubt does not arise that they were not present at the place of occurrence at the relevant time. Their deposition is straight forward and seems to be truthful and in no way it can be imagined that they had made any sort of attempt to exaggerate the prosecution story in any manner whatsoever. They had seen the appellant while making firing and named him as sole perpetrator of the occurrence.
As far as contention of learned counsel for the appellant that both the prosecution witnesses, one way or the other, are related to the deceased is concerned, it is manifest to mention here that it has been the consistent view of the superior courts of the country that mere close relationship of the prosecution witnesses with deceased or the complainant could not discard their testimony if otherwise the same is trust worthy, appealing to reason and corroborated by any independent circumstance, which has happened in the case in hand. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of ljaz Ahmad v. The State (2009 SCMR 99) and Talib Hussain and others v. The State and others (2009 SCMR 825).
17. As far as medical evidence in this case is concerned, Dr. Manzoor Ahmed Sahi (PW-11) had conducted post-mortem examination on the dead body of Chan Zeb deceased. While conducting post mortem examination the doctor had observed nineteen firearm injuries in all including injury No.1 through and through, whereas there were ten entry wounds and eight exit wounds. Perusal of statement of the doctor also reflects that the post mortem examination in this case was conducted within a time span of four hours, which further rules out any possibility of fabrication. Although the doctor had observed that possibility cannot be ruled out that the injuries were caused by different weapons, however, this part of statement of the doctor cannot be given any weight for the reason that first two fire shots were made when Chan Zeb was in standing condition and thereafter he fell down and in that condition further firing was made by the accused, hence it could be quite natural that the injuries were of different dimension. Even otherwise, while forming such opinion the doctor failed to take into consideration that dimension of injuries always rests upon area of body, body structure, age of the victim and its built, hence fire shots made on different parts of the body react with different magnitude. Hence, in these circumstances the statement of the doctor on this score, does not imprint any negative inference on the prosecution version.
18. Perusal of record also reveals that at the time of spot inspection, the Investigating Officer had collected ten crime empties (P-4/1-10), which were dispatched to the office of Forensic Science Laboratory. After arrest of the appellant, he had led to the recovery of pistol .30-bore (P-1), which was also transmitted to the concerned quarter and report of Forensic Science Laboratory (Exh.PO) in this regard is positive, which further substantiates the prosecution against the appellant.
19. The contention of learned counsel for the appellant that it is a case of substitution and the appellant was made scapegoat while leaving roam for the real culprits is not tenable as brother of the complainant was done to death in a very brutal manner while inflicting as many as nineteen injuries, which is reflected from the post mortem examination report of the deceased. The defence has failed to bring on record any sort of evidence qua previous enmity or ill-will of that gravity which could result into false implication of the appellant while substituting the real culprits, therefore, in all eventualities the chance of substitution, which otherwise is a very rare phenomenon, does not inspire confidence in any manner whatsoever.
20. Now we take up the contention raised by learned counsel for the appellant with regard to motive of the occurrence. During the course of arguments learned counsel for the appellant had emphasized that as motive set up in the crime report could not be proved/established; therefore, the case falls within the ambit of mitigation as such normal penalty of death is not warranted in this case. To evaluate the contention raised by learned counsel for the appellant, we have examined the material available on record on the touchstone of pronouncements set forth by the superior courts of the country on the subject from time-to-time.
As far as motive set up by the prosecution in this case is concerned, it has been advanced by the prosecution witnesses, which fact has also been verified by the Investigating Officer during the course of cross-examination while appearing in the witness box. We have examined the argument of learned counsel for the appellant but fail to understand that what sort of proof is required with reference to eliminating the element of motive to shatter the prosecution case to that extent and whether the same falls within the ambit of mitigation. Guidance in this regard is sought from the ratio decidendi of august Supreme Court of Pakistan reported as PLD 1976 Supreme Court 452 ( MUHAMMAD SHARIF's case; wherein following principle was laid down:--
"---S. 302---[Murder case]---Sentence---Extenuating circumstances---[Sentence]. There may be a host of extenuating and mitigating circumstances such as extreme youth, sudden provocation, influence of an elder, question of family honour etc. justifying the award of the lesser penalty of life imprisonment based on a chain of judicial pronouncements offering useful guidelines."
Similarly contention of learned counsel for the appellant that the absence/weakness of motive is also to be taken as mitigating circumstance, is rebutted by law laid down by august Supreme Court of Pakistan in a salutary judgment in the case of IMTAIZ AHMAD v. THE STATE (2001 SCMR 1334); wherein it was held as under:--
"---S. 302---Appreciation of evidence---Sentence--Motive---Allegations and proof of motive are not legal requirements for awarding maximum penalty of death in a murder case when the prosecution has proved the guilt of the accused beyond reasonable doubt---Decision of the case must not be taken in relation to case of accused, but must rest on the examination of entire evidence."
Moreover, in the case of Musa v. The State (2008 SCMR 997); their Lordships in the august Supreme Court of Pakistan had been further pleased to hold as under:--
----Reappraisal of evidence----Absence of motive----Not a mitigating circumstance----Motive, proved or otherwise, is immaterial in presence of ocular evidence and murder may be committed even for no motive or on a minor pretext; what to speak of proving motive, in certain cases where the motive was shrouded in mystery or was not alleged, conviction was maintained and absence of motive was not taken as a mitigating circumstance."
Similarly, in the case of NAWAZ ALI and another v. THE STATE (2001 SCMR 726) the deceased had received eight injuries and while taking into consideration recklessness of the act of the accused notwithstanding the fact that no motive was set up/proved by the prosecution, the august Supreme Court of Pakistan had maintained the sentence of death while holding as under:-
---S.302/34---Appraisal of evidence---Sentence--Legality of---Deceased had suffered eight injuries caused by "Chhura" and revolver and he according to medial evidnce had died on account of the injuries caused to the vital organ (heart), shock and haemorrhage-- Injuries had suggested that the deceased was done to death in a very brutal manner---Lack of motive altogether or inability of prosecution to prove motive for the murder did not affect the imposition of normal penalty of death where the prosecution had otherwise proved its case against the accused beyond reasonable doubt---Absence of motive and the fact of the accused being brothers inter se were no grounds in law for awarding lesser punishment---Sentence of death awarded to accused was upheld."
In the same judgment it was further held that if otherwise the prosecution successfully proves its case against the accused, the absence of motive would not come in way of normal penalty of sentence of death to the offender. Moreover, in the case of NAZIR AHMED v. THE STATE (2009 SCMR 523), while dealing the issue, their Lordships in the august Supreme Court had held as under:--
"---S. 302(b)---Appreciation of evidence---Absence of motive---Effect---Absence of motive or failure on the part of prosecution to prove the same, does not adversely affect the testimony of the eye-witnesses, if they are otherwise reliable."
Similar view was held in the cases of TALIB HUSSAIN and others v. THE STATE (1995 SCMR 1776), MUKHTAR AHMED and others v. THE STATE (PLD 2004 Supreme Court 563), and KHALID MEHMOOD and others v. THE STATE (2011 SCMR 664).
It is also very relevant to mention here that in the case of MOAZAM SHAH v. MOHSAN SHAH and another (PLD 2001 Supreme Court 458), the august Supreme Court of Pakistan was pleased to enhance the sentence of imprisonment for life to normal penalty of death mainly on the ground that lack of motive was no ground for lesser sentence.
21. As far as case law cited by learned counsel for the appellant is concerned, it is well settled by now that it is consistent view of the superior courts of the country that each criminal case has to be decided on its own peculiar facts and circumstances and rule laid down in the earlier cases cannot be applied in the subsequent cases in an anthology manner. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of IMTAIZ AHMAD v. THE STATE (2001 SCMR 1334); wherein it was held as under:--
"Each criminal case is to be decided on its own peculiar facts and circumstances---Rule laid down in the earlier cases cannot be applied in subsequent cases in the omnibus manner."
The case law cited by learned counsel for the appellant, thus, being distinguishable from the facts of the case in hand, lends no support to the case of the appellant.
22. No doubt the pistol is a lethal weapon and the appellant had made repeated fire shots on vital part of the body of the deceased, which imprint the intent of the assailant and unveil his reckless conduct, who had conducted murder of young man without his fault. The normal sentence for culpable homicide amounting to murder is death. The prosecution witnesses were not tested on the touchstone of Tazkia-tul-shahood , therefore, the learned trial court was justified to convict the appellant under Section 302(b), P.P.C., and sentence him to death as To'zir. Resultantly, Criminal Appeal No.628 of 2010 filed by Sakhi Jan/appellant is DISMISSED IN TOTO , as a consequence whereof the impugned judgment passed by learned trial court on 30.09.2010 is maintained/upheld.
23. Murder Reference No.70/RWP of 2010 forwarded by the learned trial court in terms of Section 374, Cr.P.C, for confirmation of sentence of death inflicted upon Sakhi Jan/convict succeeds, which is answered in AFFIRMATIVE . Death sentence is CONFIRMED .
24. As far as Crl. Revision No.320 of 2010 filed by the complainant seeking enhancement in compensation is concerned, we are of the considered view that the verdict ordained in the judgment of the learned trial Court is well justified and we are not persuaded to take a contrary view. Hence, the same being devoid of legal justification hereby stands dismissed .
HBT/S-129/L Appeal dismissed.