PLJ 2022 Cr.C. 1091
[Lahore High Court, Multan Bench]
Present:
Sohail Nasir, J.
MUHAMMAD
NAWAZ alias NAZI & another--Appellants
versus
STATE--Respondent
Crl. A.
No. 1577 of 2019, heard on 20.1.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S.
302--Appellant who fired a shot on the head of deceased which went through and
through; died at the spot--As a Court of appeal or revision can interfere only
if it is found that by such error or omission appellants were misled in their
defence--FIR was chalked out--Complete details and manners of occurrence are recorded which includes names
of appellants and their co-accused, weapons they were carrying, names of complainant
and witnesses and the role assigned to every accused--Complainant of the case,
before could attend the witness box had taken his last breath therefore
appellants cannot take any benefit of the act of GOD in particular when two
eyewitnesses PW-7 and PW-8 are still in the credit of prosecution--Prosecution is not bound to
produce each and every witness of the case--It is not only a case of prompt
information to police but prompt postmortem examination of the body--Negative
report shall have no adverse impact on the testimony of two eyewitnesses--Both
appellants could not explain their long disappearance after the
occurrence--Plea of alibi raised by appellant is of no worth at all--Appeal has
no merit and dismissed.
[Pp. 1093, 1098, 1099, 1100, 1101 & 1102] A, D, E, F, G, H, I & J
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 221/222/223 & 225--Charge--A charge under the
settled principles of law is precise
information of specific accusation and
its purpose is to tell an accused as precisely and concisely what the
prosecution intends to prove against him during trial. [P. 1097] B
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 221/232 & 239--It was an omission on the part of
trial court which can be fatal to prosecution only if the appellants are
succeeded to show that because of such omission in fact they were misled that
it had occasioned a failure of justice. [P.
1098] C
Mr. Qasim Ali Advocate for
Appellants.
Ms. Asmat Parveen Deputy
District Public Prosecutor for State.
Date of hearing 20.1.2022.
Judgment
This criminal appeal filed through
Superintendent Central Jail, Multan by Muhammad Nawaz alias Nazi and
Muhammad Yasin alias Cheehma/both real brothers (appellants) is directed
against judgment dated 30.10.2019 passed by the learned Additional Sessions Judge,
Khanewal on the basis of which they were convicted under Section 302(b), PPC[1]
and sentenced to life imprisonment each with direction to pay an amount of Rs.
100000/- (one lac) each as compensation in terms of Section 544-A, Cr.P.C.[2]
to the legal heirs of deceased. Benefit of Section 382-B[3],
Cr.P.C. was extended to both the appellants.
2. The convictions are outcome of case
FIR4[4]
No. 94 (PA/1) recorded on 15.03.2016 under Sections 302/148/149, PPC at Police
Station Kohna district Khanewal on the complaint of Furqan (not produced being
died).
3. Facts of the case are that on
15.03.2016 while appearing in Police Station, Furqan/complainant submitted an
application (PA), where he maintained that on 15.03.2016 at about 05:15 pm,
Nasir Ali (deceased) while standing in front of his house situated at Lakkar
Mandi Khanewal, was busy in conversation on his mobile; he/complainant along
with Ghulam Farid (Pw-8) and Musharraf Ali (Pw-7) were also present there and
busy in discussion; all of a sudden there emerged Muhammad Yasin alias
Cheehma, Muhammad Nawaz alias Nazi (appellants), Raees alias
Billa (PO)[5]
and two unknown persons; all assailants were armed with 30-bore pistols;
Muhammad Yasin alias Cheehma made a fire which hit on the left arm of
Nasir Ali and went through and through; he fired second shot that hit on the
left side of chest of Nasir and he fell down on the ground; thereafter,
Muhammad Nawaz alias Nazi pressed the trigger and fire hit on the right
hand of Nasir Ali that too went through and through; fourth fire in series came
out from the pistol of Muhammad Nawaz and hit on the fingers of right hand of
Nasir Ali; next fire from the weapon of Muhammad Nawaz alias Nazi caused
an injury in between the chest of Nasir Ali; subsequent thereto, two bullets
from the firearm of Raees alias Billa (PO) resulted into injuries on the
right side of chest and testicles of Nasir Ali; final action was by Muhammad
Yasin alias Cheehma (appellant) who fired a shot on the head of Nasir
Ali which went through and through; Nasir Ali died at the spot; unknown persons
while standing had been extending threats to kill any one if came forward; all
the assailants were succeeded to escape from crime scene; occurrence was also
witnessed by Sabira Bibi (not produced) and residents of locality; motive was
that assailants were drug peddlers and Muhammad Yasin alias Cheehma got
registered a case for the murder of his brother Haq Nawaz against Nasir Ali
(deceased), Sultan and Irfan.
4.
On the basis of above application FIR (PA/1) was recorded by Muhammad Ajmal HC
(Pw-1).
5. During investigation all accused
including appellants were declared as Proclaimed Offenders. However, on
27.12.2016, Muhammad Yasin alias Cheehma and on 18.12.2018 Muhammad
Nawaz alias Nazi was arrested in this case.
6. Primarily a report under Section
173, Cr.P.C. (Challan) was submitted to the extent of Muhammad Yasin alias
Cheehma and remaining accused were declared as Proclaimed Offenders. A charge
was framed against him on 20.02.2017 for which he pleaded not guilty and
demanded his trial. After certain witnesses were examined, Muhammad Nawaz alias
Nazi (appellant) was also arrested therefore, a supplementary report under
Section 173, Cr.P.C. was also submitted against him. He too was charged on
30.01.2019 under Sections 302/148/149, PPC and pleaded not guilty.
7. It appears that earlier
proceedings with regard to recording of statements of certain witnesses were
impliedly declared as de novo[6]
and fresh evidence was started.
8. In order to prove its' case
prosecution had produced Muhammad Ajmal Head Constable/author of FIR (PW-1),
Abdul Majeed Constable (PW-2), Sajid Ali Constable/witness to arrest of
Muhammad Yasin (PW-3), Dr. Ghulam Abbas (PW-4), Raja Muhammad Iqbal
Janjua/draftsman (Pw-5), Abid Mehmood HC/Moharrar (PW-6), Musharraf
Ali/eyewitness (PW-7), Ghulam Farid/eyewitness (PW-8), Muhammad Azhar Sub
Inspector/Investigating Officer (PW-9), Malik Husnain SI/I.O (PW-10), Sajid Ali
SI/IO (PW-11) and Muhammad Sajid (PW-12).
9. Sabira Bibi, Azhar Abbas and Muhammad Asif were given up
being unnecessary. After producing the expert reports (PV and PW),
prosecution's evidence was closed by the learned DDPP.[7]
10. In their examinations made under Section 342, Cr.P.C.
versions of both the appellants were as under: -
Muhammad Yasin alias Cheema
"This case is
false and fabricated, PWs are interse related and interested witnesses and are
inimical towards me and my co-accused, they have deposed falsely. The PWs are
not natural witnesses, they are not residents of near the place of occurrence
nor they witnessed the occurrence. The deceased and his family had inimical
towards many other persons who were criminal persons and many other criminal
cases registered against the deceased and his brothers and their father complainant
namely Furqan. Some unknown persons murdered the deceased Nasir and the
complainant party after consultation and due deliberation after spot inspection
lodged this false FIR against me and my co-accused because on 06.07.2015 the
deceased Nasir Ali and his brothers Sultan alias Tani, Irfan alias Fana since
P.O and father complainant namely Furqan since died and other accused committed
the murder of my real brother Haq Nawaz and I lodged the case FIR No. 211/15
u/S. 302/449/148/149, PPC Police Station Kohna Khanewal against them and due to
that grudge the complainant party lodged this false case against me and my
co-accused Nawaz as he was also witness of the abovesaid case. The police did
not investigate the matter fairly and due to influence of complainant party
they falsely challan me and my co-accused. Nothing was recovered from me and if
something is shown fake and planted one"
Muhammad Nawaz alias Nazxi
"This case is
false and fabricated, PWs are interse related and interested and inimical
towards me and my co-accused, they have deposed falsely. The PWs are not
natural witnesses, they are not residents of near the place of occurrence nor
they witnessed the occurrence. The deceased and his family had inimical towards
many other persons who were criminal persons and many other criminal cases
registered against the deceased and his brothers and their father complainant
namely Furqan. Some unknown persons murdered the deceased Nasir and the
complainant party after consultation and due deliberation after spot inspection
lodged this false FIR against me and my co-accused because on 06.07.2015 the
deceased Nasir Ali and his brothers Sultan alias Tani, Irfan alias Fana since
P.O and father complainant namely Furqan since died and other accused committed
the murder of my real brother Haq Nawaz and my brother/co-accused Yaseen lodged
the case FIR No. 211/15 u/S. 302/449/148/ 149, PPC P.S Kohna Khanewal against
them and due to that grudge the complainant party lodged this false case
against me and my co-accused Yaseen as I was witness of the above said case.
The police did not investigate the matter fairly and due to influence of
complainant party they falsely challan me and my co-accused. I joined the
investigation of this case and got recorded my first version to Muhammad Azhar
S.I/I.O that I was working in Sadiq Poultry Private Ltd. in Rawalpindi as a
welder with Muhammad Mukhtiar contractor and on the day of occurrence I was
present in the Rawalpindi in above said factory. Muhammad Mukhtiar also
submitted his affidavit during investigation to I.O in which he fully supported
my version. Muhammad Mukhtiar also produced my attendance certificate in
factory on the day of occurrence but the I.O with malafide intention did not
make the same part of file and falsely challaned me in this case on the asking
of complainant party. Nothing was recovered from me and if something is shown
fake and planted one"
11. Appellants in their defence evidence produced copies of FIR
and other proceedings (DA to DD) however they did not opt to appear in terms of
Section 340(2), Cr.P.C.
12. Learned counsel for appellants
contended that the charge against Muhammad Yasin alias Cheehma framed by
the learned trial Court was defective where Section 302, PPC was not recorded;
after the arrest of Muhammad Nawaz alias Nazi and submission of
supplementary report under Section 173, Cr.P.C., it was the duty of learned
trial Court to charge both the appellants jointly which was an illegality;
under all circumstances, it is the duty of prosecution to prove its' case
beyond reasonable doubt and if said assignment is not discharged, the
consequences shall be in favour of accused and none else; complainant Furqan
did not appear in witness box which is fatal to prosecution; Sabira Bibi
daughter of complainant was also stated to be present at crime scene, but she
was given up being unnecessary and as she could be the best witness therefore
not to bring her in witness box has invited many challenges for prosecution
which remained unanswered; statements of two eye witnesses are suffering from
contradictions and infirmities hence they cannot be relied upon; information to
police even if it was without delay, cannot be considered a good reason to
record the conviction and to sustain thereof; the medical evidence does not
support ocular account; Muhammad Nawaz (appellant) had taken the plea of alibi
which was not investigated deliberately by the Investigating Officers hence it
is a case of defective investigation; on behalf of Muhammad Nawaz (appellant) a
certificate was produced showing that on the relevant day he was present on his
duty at Rawalpindi, therefore, he could not be convicted; enmity between the
parties is not under dispute so without any corroboration statements of
eyewitnesses cannot be given stamp of truth; absconding of both the appellants
cannot stand in their way if it is found that prosecution could not establish
its' case against them. Learned counsel finally argued that no good reason has
been assigned by the learned trial Court while convicting the appellants.
13. Appeal has been opposed by
learned DDPP.
14. HEARD.
15. It is a matter of record that
primarily he was Muhammad Yasin alias Cheehma (appellant) against whom
on 20.02.2017 a charge under two heads was framed by the learned trial Court
and that was as under:
"That
on 15.3.2016 at 5:15 pm in the area of Lakkar Mandi Basti Chan Shah P.S, Kohna
you while armed with firearm weapon along with your co-accused (since P.O)
formed an unlawful assembly in furtherance of your common object with the
intention to commit Qatl-i-Amd of Nasir Ali s/o complainant Furqan, thus you
committed an offence punishable u/S. 149, PPC which is within the cognizance of
this Court.
That
on the above said date, time and place you while armed with pistol 30 bore
alongwith your co accused caused injuries on the person of Nasir Ali, as a
result of which he succumbed to the injuries, thus you committed his Qatl-i-Amd
which is within the cognizance of this Court"
16. Undoubtedly there is no mention
of Section 302, PPC in the above charge so the question before this Court is
that whether such mistake on the part of learned trial Court can be a reason to
vitiate the trial?
17. A charge has been defined under
Section 4 (C) Cr.PC which says as under: -
"Charge
includes any head of the charge, when the charge contains more than one "
18.
A charge under the settled principles of law is precise information of specific
accusation and its purpose is to tell an accused as precisely and concisely
what the prosecution intends to prove against him during trial. Purpose of
framing of charge is also to offer an opportunity to accused to focus and
concentrate his attention on the allegations he has to face.
19. Chapter XIX (Ss 221 to 240)
deals with Form of Charge' 'Alteration of Charge' 'Joinder
of Offences' and 'Joinder of Accused'. Under Sections 221
to 223 Cr.PC, the components of a charge are as under:
i. Name, parentage, caste, age and address of accused.
ii. The offence.
iii. If offence is named specifically by law, which creates offence,
the offence may be described in the charge by that name only.
iv. The Law and Section of Law.
v. In case of previous conviction of the accused for affecting
the sentence, the fact and date, place of the previous conviction are to be
stated.
vi. Particulars to the time, place and the offence and the person
against whom or thing in respect of which it is committed.
vii. In case of criminal breach of trust or dishonest
misappropriation of money, it is sufficient to specify the gross sum in respect
of which the offence is committed and the dates between which it is committed
provided the time between first and last date does not exceed one year. viii.
When the particulars mentioned in Sections 221 and 222 of Cr.PC are
insufficient to notify the accused with the matter, which he is charged, the
charge should also contain such particulars and the manners in which alleged
offence was committed"
20. In the above said charge the
date (15.03.2016), time (05:15 pm), place of occurrence (Lakkar Mandi Basti
Chan Shah), offences (forming of an unlawful assembly and firing),
name of offence (Qatl-e-Amd) and law (PPC) were notified to Muhammad
Yasin. Only one component that is Section of Law (302, PPC) could not be recorded
therein. To come out from the effect of this wrong, the provision of Section
225 Cr.PC is quite relevant and reproduced as under: -
"No error
in stating either the offence or the particulars required to be stated in the
charge, and no omission to state the offence or those
particulars, shall be regarded at any stage of the case as material, unless the
accused was in fact misled by such error or omission, and it has occasioned a
failure of justice" (Emphasized applied)
21. The significant words used in the above provision 'error'
or 'omission'. These two words have not been defined under
relevant Chapter (ibid) or under any of the provisions of Cr.PC. The ordinary
dictionary meanings of 'error' and 'omission' are
as under:
"ERROR
"An act involving an unintentional deviation from accuracy; an act that
through ignorance, deficiency or accident departs from or fails to achieve or
should be done".[8]
OMISSION
"Something neglected or left undone; a failure to do something".[9]
22.
In the referred charge against Muhammad Yasin alias Cheehma it was an omission
on the part of learned trial Court which can be fatal to prosecution only if
the appellants are succeeded to show that because of such omission in fact they
were misled and it had occasioned a failure of justice.) Under Section 232
Cr.PC, this Court, in the given circumstances, as a Court of appeal or revision
can interfere only if it is found that by such error or omission appellants
were misled in their defence. The said provision for better understanding is as
under:
"232.
Effect of material error: (1) If any Appellate Court, or the
High Court [or the Court of Session] in the exercise of its powers of revision
or of its powers under Chapter XXVII is of opinion that any person convicted of
an offence was misled in his defence by the absence of a charge or by an error
in the charge, it shall direct a new trial to be had upon a charge framed in
whatever manner it thinks fit.
(2) If the Court is
of opinion that the facts of the case are such that no valid charge could be
preferred against the accused in respect of the facts proved, it shall quash
the, conviction "
23. Learned counsel for appellants is unable to convince this
Court that because of omission made by the learned trial Court, what prejudice
has been caused to appellants or how his clients were misled in their defence
or how there was a failure of justice? Therefore, no benefit can be extended to
appellants because of said omission in the charge.
24. After the submission of supplementary report under Section
of 173, Cr.P.C. (Challan), no doubt that a joint charge was required to
be framed against both the appellants in terms of Section 239 Cr.PC but as it
was a procedural irregularity causing no injustice to appellants so cannot be a
reason to reverse the proceedings conducted by the learned trial Court.
25.
Coming to the merits of the case, I have gone through the record of learned
trial Court with the valuable assistance of both the sides. Occurrence had
taken place at 05:15 pm. Police Station was at a short distance where Furqan
immediately appeared and submitted an application and within next 15 minutes
that was at 05:30 pm, the FIR was chalked out. In this document (PA) complete
details and manners of occurrence are recorded which includes names of
appellants and their co-accused, weapons they were carrying, names of
complainant and witnesses and the role assigned to every accused. The defence
during cross-examination to the witnesses was completely failed to shatter the
genuineness of this document. Even by imaginations there is nothing to hold
that FIR was not recorded at the given date and time or in the manners as
prosecution claimed. In these circumstances, the most promptly lodged FIR has
ruled out the question of false involvement of the appellants in this case.
26.
Furqan, the complainant of the case, before could attend the witness box had
taken his last breath therefore appellants cannot take any benefit of the act
of GOD in particular when two eyewitnesses Musharraf Ali (Pw-7)
and Ghulam Farid (Pw-8) are still in the credit of prosecution.
27. These are the recognized principles of law that prosecution
is not bound to produce each and every witness of the case[10]
and that it is the quality and not the quantity that has to prevail for the
purpose of arriving at a just decision of the case.[11]
If Sabira Bibi, the daughter of complainant, was not produced, that by no means
can be stated as a damaging factor for the prosecution.
28. No doubt that prior to the occurrence there was an enmity
in existence between the parties but the eyewitnesses Musharraf Ali and Ghulam
Farid produced by the prosecution in this case were proved to be independent
having no relations with complainant or enmity with appellants. Musharraf Ali
was although residing at a distance of about half kilometer but in the same
vicinity where both the parties were living. He categorically stated that he
came there to see one Kamran who was the owner of the shop where he/Musharraf
Ali used to work. Similarly Ghulam Farid (Pw-8) was residing quite close to the
house of complainant which fact too could not be disputed by defence. Keeping
in view the time of occurrence 05:15 pm in the month of March, presence of both
the witness has also been proved to be natural.
29. The cross-examination conducted on both the eyewitnesses
makes it clear that defence was unable to smash or destroy their reliability.
Even by presumptions or imaginations there is nothing to suggest that they had
any reason or grudge or motive to depose falsely against appellants while
appearing in Court.
30.
As mentioned earlier FIR was recorded at 05:30 pm. It was thereafter when Sajid
Ali S.I (Pw-11) arrived at crime scene where he prepared injuries statement
(PE) and inquest report (PF) and send the dead body for postmortem examination
under the escort of Abdul Majeed/Constable (PW-2). The dead body was ultimately
in hospital at 06:30 pm as admitted by Doctor Ghulam Abbas (PW-4) who, then,
conducted the postmortem examination at midnight that was 12:05 am. In these
circumstances it is not only a case of prompt information to police but prompt
postmortem examination of the body of Nasir Ali.
31. Learned counsel for appellants
although claimed contradictions and infirmities in the statements of witnesses
but during course of arguments he could not refer any portion of
cross-examination to substantiate such contention. It is needless to observe
that eyewitnesses came in witness box after about three years and four months
of the occurrence because appellants were absconders so the minor lapses, if
any, in the statements of witnesses were quite natural and cannot be a reason
for acquittal on the strength of golden principle that doubt arising out from
the statements of witnesses must be genuine and not artificial.
32. Reverting to medical evidence, he
was Doctor Ghulam Abbas who, on 16.03.2016 at about 12:05 am (midnight)
conducted the postmortem examination of Nasir Ali and observed as under:
Injury No. 1.
Firearm entry wound 1x1 cm left side of skull 4cm above left ear. No blackening
and burning present. Fire arm exit wound 3X3 cm right side of skull 7 cm above
right ear. Brain matter out.
Injury No. 2. Firearm
entry wound 1x1 cm at back of chest. 2 cm lateral to vertebral column 4cm away
from medial border of right scapula. No blackening, no burning present. Fire
arm exit wound 2x2 cm right side of anterior of chest 2 cm below right clavicle
and 8 cm above right nipple.
Injury No. 3. A
firearm entry wound 1x1 cm lateral to vertebral column 5 cm away from medial border
of right scapulae. No burning, no blackening present. Firearm exit wound 2x2 cm
right side of anterior of chest 2 cm lateral to sternum, 6 cm away from right
nipple.
Injury No. 4. Fire
arm entry wound 1x1 cm of left nipple areola of left side anterior chest. No
blackening, no burning present. One bullet removed from chest.
Injury No. 5. Firearm
entry 1x1 cm right side anterior lower abdomen, right iliac fossa, 7 cm away
from right anterior superior iliac supine. No blackening, no burning present.
Fire arm exit wound 2x2 cm at back of trunk 3 cm away from vertebral column of
right side.
Injury No. 6. A fire
arm entry wound 1x1 cm on left forearm posterior medially 2 cm above ulna head.
No blackening, no burning present. Exit wound 2x2 anterior of forearm 2 cm
above lower border of ulna. Entry exit wound inter distance of
3 cm.
Injury No. 7. Firearm
entry wound 1x1 cm of palm of right hand anteriorly at third metatarsal bone.
No burning, no blackening present. Exit wound 2x2 cm at back of right hand at third
metatarsal bone.
Injury No. 8. Firearm entry wound 1x1 cm
right hand ring finger anteriorly at second phalangeal bone. No blackening, no
burning present. Exit wound 1x1 cm posteriorly ring finger of right hand at
second phalangeal bone."
33. According to Doctor all the
injuries were fatal and ante mortem in nature and caused by firearm weapons.
34. It was contended that the
medical evidence does not support the direct evidence, but learned counsel for
appellants has been completely failed to refer any such contradiction between
two sets of witnesses. Therefore medical evidence of this case is a strong
corroboration to the ocular account.
35.
The report of PFSA (PV) with regard to matching of empties with the pistols
recovered at the instances of appellants is inconsequential, therefore, it
requires no discussion. However, the negative report shall have no adverse
impact on the testimony of two eyewitnesses for the reason that at the most it
is a corroborative and not conclusive piece of evidence.
36.
It is the prosecution case that after the occurrence, appellants and their
co-accused had disappeared and was declared as Proclaimed Offenders. Muhammad
Yasin alias Cheehma was arrested on 27.12.2016 whereas, Muhammad Nawaz alias
Nazi was apprehended on 18.12.2018. Raees alias Billa who is their real
brother is still wanted. Even if it is presumed that the absconding of
appellants has not been proved in accordance with law, even then their long
disappearance and avoidance from process of justice is a hurdle in their way
and can be used as corroboration to the ocular account. Both appellants could
not explain their long disappearance after the occurrence, and they also could
not dispute their dates of arrest as stated by the investigating officers.
37.
Muhammad Nawaz (appellant) had taken the plea of alibi[12]
but after two years and nine months of the occurrence when he was arrested. It
is settled principle of law that the plea of alibi being special plea must be
taken at first available opportunity and being a distinct plea is required to
be substantiated by adducing cogent and concrete evidence. Muhammad Nawaz,
before he was arrested by the police, never agitated anywhere even by moving
any application to any authority that he was not present at crime scene.
Although in cross-examination he suggested to the Investigating Officer about
such plea and the person with whom he was present but that person was not
produced by him in his defence. He submitted a photocopy of letter dated
19.04.2016 (Mark-A) issued by a Private Department that was 'Sadiq Poultry
(Pvt.) Ltd.' where it was maintained that Muhammad Nawaz had been working at
the said poultry farm, from 02.01.2016 to 21.03.2016. This document which could
not be marked by the learned trial Court is having no evidentiary value. Even
if it's original was brought on record that could not be exhibited without
appearance of the person who had issued the same. Therefore, plea of alibi
raised by Muhammad Nawaz is of no worth at all.
38. Learned trial Court while taking
into consideration the evidence from all possible angles rightly proceeded to
convict the appellants hence this Court finds no justification to interfere in
the well-reasoned impugned judgment.
39. Summing up the
deliberations made above this appeal has no merit hence it is dismissed.
(K.Q.B.) Appeal
dismissed