PLJ 2013 Cr.C.
(Peshawar) 601
(DB)
[Bannu Bench]
[Bannu Bench]
Present: Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ.
RAZAULLAH--Appellant
versus
STATE
etc.--Respondents
Crl. A. No. 11-B of
2010, decided on 14.3.2013.
Contradictions--
----It is
settled law, that those contradictions in the prosecution evidence are
considered as fatal, which totally negate the prosecution case--Mere cosmetic
discrepancies, occurring in the statements of the PWs, which are otherwise
natural one would not be considered as fatal--Rather, such like discrepancies
in the statements of the PWs are inbuilt proof of their truthfulness that they
have come forward with natural account of the events, without being tutored or
fabrication. [P. 611] A
Pakistan Penal Code,
1860 (XLV of 1860)--
----S.
302(b)--Conviction and sentence--Challenge to--Cosmetic discrepancies in
statements of PWs--When witnesses were subjected to lengthy and searching
cross-examination by a skillful hand, minor discrepancies do creep in from the
simple and rustic villagers, who are never used to such-tricky questions nor
are mindful about, the nature and consequences of answers thereof--Courts are
never supposed to decide the matter in a mechanical manner by taking such
discrepancies as a tool to dislodge a genuine case--Rather, they are legally
obliged to go in depth of the evidence and assess it at the touch stone of
natural course of events and human conduct in normal pursuit of the society by
scrutinizing its intrinsic worth and if comes to the conclusion on their own
assessment that such an occurrence had in fact taken place, it become an
obligation to redress the grievance of aggrieved party--Although, accused is
considered as a beloved child of the Court, but at the same time the aggrieved
party is also not to be treated as an alien, as, it is he, who approaches the
Court for redressal of his grievance against
aggression of accused--If in a genuine case, the grievance of the victim is not
redressed, the people get frustrated from the judicial system and turn wild for
lynching, which situation becomes more hazardous--Though, the benefit of doubt
is to be extended to the accused, but that doubt should be of such a nature
which may inherently affect the prosecution case and pricks the judicial mind
about genuineness of the allegations--However, mere artificial or any
hypothetical doubt, should not be followed for acquittal of accused--The penal
laws impel multi dimensional impact at the society--First and foremost is to
pacify the victim by punishing the culprit--The punishment so inflicted acts as
a deterrent to the criminals and consequently it brings about peace and
tranquility and thereby transforms the society in to civilized one--Prosecution
has brought home the guilt of appellant through cogent, coherent, trustworthy
and confidence inspiring evidence, ocular as well as circumstantial, and the
trial Court was justified in recording conviction--Impugned judgment of trial
Court is well reasoned which need not be interfered with by High Court--Thus,
by maintaining the impugned judgment, this appeal was dismissed. [P. 612] B & C
Pir Liaqat Ali Shah and Mr. Sultan Mehmood,
Advocates for Appellant.
Mr.
Ahmed Farooq Khattak, Addl.
A.G. for State.
Mr. Muhammad
Anwar Khan (Maidad Khel),
Advocate for Complainant.
Date of hearing:
14.3.2013.
Judgment
Nisar Hussain Khan, J.--Appellant Razaullah
was tried for the murder of Ali Muhammad, by learned Sessions Judge-III/Judge
Juvenile Court Bannu, in case F.I.R No. 581, dated 13.09.1991,
registered under Section 302, P.P.C., at Police Station Saddar,
Bannu and vide judgment/order dated 01.07.2010, he
was convicted under Section 302(b) P.P.C., and sentenced to life imprisonment.
He was also held liable to pay Rs. 50,000/-, as compensation within the meaning
of Section 544-A, Cr.P.C., to the legal heirs of deceased and in default whereof to
undergo 6 months S.I. Benefit of Section 382-B, Cr.P.C.,
was extended in his favour.
2. Appellant-convict has challenged his
conviction and sentence, by inadvertently, filing two appeals i.e. the instant
one as well as Cr.A. No. 30-B/2010,
titled, "Razaullah Vs. The State
etc". Thus, his first Appeal No. 11-B/2010, is
taken up while second appeal No. 30-B/2010, is disposed of being infructuous. Complainant has filed connected Cr.R. No. 03-B/2010, titled, "Fazal
Muhammad vs. Razaullah" for enhancement of
sentence of convict. As both, the appeal as well as the revision, are emanating
from the same judgment of the trial Court, hence, are going to be disposed of
through this common judgment.
3. The prosecution case is that on the fateful
day complainant Wali Muhammad alongwith
his son Ali Muhammad deceased was going towards his house. On their way, one Mehboob Ali, his nephew, also accompanied them. After
covering some distance, they noticed appellant Razaullah,
armed with Kalashnikov, coming from the opposite side, who
on sighting them, resorted to firing on Ali Muhammad, as a consequence whereof,
son of the complainant was hit and fell down. After commission of crime, he
decamped from the spot. Complainant when attended his son, he had succumbed to
the injuries. Complainant and his nephew Mehboob Ali
have witnessed the occurrence. Motive for the crime was a brawl between accused
and deceased, a few days before the occurrence in a Volleyball match. The dead
body of deceased was shifted to Police Station Saddar
Bannu, where complainant lodged report; hence, F.I.R
mentioned-above was registered.
4. On his arrest, after about 16 years of
occurrence, pursuant to the Juvenile Justice System Ordinance, 2000, he being a
juvenile, challan was put in Juvenile Court against
him, where he was charge sheeted, to which he pleaded not guilty and claimed
trial. To bring home guilt of appellant, prosecution examined eight witnesses.
After closure of the prosecution evidence, appellant was examined under Section
342, Cr.P.C. wherein he professed his innocence and
denied the prosecution allegations. However, he declined to be examined on oath
as his own witness under Section 340(2), Cr.P.C. or
to produce defence evidence. On conclusion of trial,
learned trial Court, after hearing both the sides, convicted and sentenced the
appellant as mentioned-above.
5. Learned counsel for appellant-convict argued
that complainant has not been examined in support of his version and in this
way, the contents of the F.I.R., have not been proved; that statements of the
PWs, recorded during proceedings under Section 512, Cr.P.C.,
could not be transferred to the file for trial of accused, which request of the
defence was turned down by the trial Court and
allowed by the High Court by holding that the case being triable
by Special Court, the statements recorded by Magistrate could not be
transferred; that there is no signature of PW Mehboob
Ali in the F.I.R, so his presence on the spot at the time of alleged occurrence
is not established; that inquest report of the deceased neither contain the
name of PW Mehboob Ali nor the section of law; that
kind of weapon of offence has not been mentioned in the relevant column of
inquest report nor autopsy report bears the F.I.R number; that post-mortem of
the deceased was conducted at 6.30 a.m., after 10 hours i.e. on the next
morning of the occurrence and this delayed post-mortem report adversely affect the
prosecution case; that names of identifiers of the dead body, are not mentioned
in the F.I.R; that trial Court has wrongly believed and relied upon the
statements of PWs recorded under Section 164, Cr.P.C.;
that identification of the accused at 8 p.m., being night time, was impossible,
when the visibility of moon was 29 percent, as on the relevant day, the time of
the Sun-set was 6.29 p.m.; that neither availability of bulb has been shown in
the site-plan nor any bulb has been taken into possession from the spot; that
prosecution has just alleged the motive which has not been proved; that abscondence of appellant cannot be counted against him, as
the procedure provided under Section 5-A of the Suppression of Terrorist
Activities (Special Courts) Act, 1975, has not been followed; that there are 10
entry wounds on the dead body of the deceased, which may be a job of two
persons; that empties have not been sent to the FSL to fix responsibility on
accused; that during the trial, parcels of recoveries have thrice been
produced; that as per statement of PW Mehboob Ali,
recoveries from the spot were effected in light of the torch, so the version of
light of bulb from the near by houses, is belied by
him; that the statements of the PWs are suffering from major contradictions and
discrepancies, creating doubt in the prosecution case, benefit of which is to
be extended to the appellant.
6. As against that, learned counsel for
respondent-complainant contended that appellant is singularly charged for the
murder of the deceased in a promptly lodged report; that statement of
complainant recorded by the Magistrate during proceedings under Section 512, Cr.P.C., was not allowed by the High Court to be
transferred to the trial of appellant; that there is no question of misidentification,
as accused and eye-witnesses are closely related to each other and the accused
was identified in the light of bulbs of the nearby houses; that PW Mehboob Ali, is equally related to both, the accused as
well as the deceased; that there is no material contradiction which may negate
the prosecution version; that there is no column for the number of F.I.R in
post-mortem report; that dead body of the deceased was shifted to the hospital
in time, but autopsy was not conducted due to lack of facilities, which is not
the fault of prosecution; that appellant remained absconder for more than 16
years and the statements of PWs were recorded, after such a long time; that
prosecution has successfully proved the guilt of appellant and he has rightly
been convicted. In support of criminal revision, learned counsel contended that
though the sentence cannot be enhanced, the appellant being minor, but
compensation be enhanced by accepting the revision petition.
7. We have given our anxious consideration to
the respective arguments of the learned counsel for the parties and have
scanned the record with their valuable assistance.
8. As per F.I.R., the occurrence took place on
13.09.1991 at 8.00 p.m. The dead body of the deceased was shifted to the Police
Station and report was lodged by complainant at 8.30 p.m,
within 30 minutes of the occurrence. The distance between the crime spot and
Police Station, as shown in the F.I.R, is 2/3 Kilometers and complainant Wali Muhammad, being father of the deceased, might have consumed
some time at the spot for collecting his reflexes, because his young son was
shot dead in front of his eyesight. In the circumstances, the crime has been
reported with promptitude; eliminating any possibility of consultation,
deliberation and concoction. It is also borne out from the record that both,
the deceased as well as accused, are closely related to each other, being
cousin inter-se. So in these circumstances, substitution of the appellant for
the actual assailant is unbelievable, as one cannot expect from a real father
to spare the real assailant and implicate an innocent person, who is none else,
but his close relative, being maternal cousin of deceased. Moreover,
substitution is a rare phenomena, which cannot be
expected in cases, like the instant one. After the occurrence, appellant opted
to abscond and was arrested on 08.01.2008, after a period of more than 16
years. The objection of learned counsel for the appellant that statements of
the PWs, recorded under Section 512, Cr.P.C., and
those recorded under Section 164, Cr.P.C. could have
not been made use of, is not worth consideration for the simple reason that the
trial Court, while recording conviction, has not relied upon these statements.
9. The argument of the learned counsel for appellant
that contents of the F.I.R have not been proved, as maker of the same has not
been examined, is not tenable. Firstly, because, Wali
Muhammad Khan complainant had died in the interregnum, when appellant was
absconding, as such, his examination in the Court was next to impossible. Had
he been alive and not appeared before the Court to testify, the argument of the
learned counsel would have some substance. In this backdrop, his
non-examination cannot be accounted against the prosecution. As per Chapter 24.5
of the Police Rules, 1934, First Information Report is entered in the Register
containing prescribed proforma, having four copies of
same serial number, maintained in the Police Station, original of which is
retained in the Police Station. One copy each is sent to the Superintendent of
Police, the Magistrate/Judicial Magistrate concerned and one is for the
complainant. In this way, it is a public document, maintained in a Public
Office, which is written on the report of complainant, by competent Officer/Official
of the Police Station, who not only signs it himself, but obtain the signature
of complainant, as well and is written on a prescribed form. Such document can
be proved under Article 78 of the Qanun-e-Shahadat Order, 1984, by producing its Author. While its
contents in terms of Article 91 of the ibid Order, are presumed to be correct
and true. For convenience, Article 91 of the Qanun-e-Shahadat Order, 1984, is reproduced herein below:--
"Article
91.
Presumption as to documents produced as record of evidence.--Whenever any
document is produced before any Court, purporting to be a record or memorandum
of the evidence or of any part of the evidence given by a witness in a judicial
proceeding or before any officer authorized by law to take such evidence or to
be a statement or confession by any prisoner or accused person, taken in
accordance with law, and purporting to be signed by any Judge or Magistrate or
by any such officer as aforesaid, the Court shall presume:
That the
document is genuine; that any statement as to the circumstances under which it
was taken, purporting to be made by the person signing it, are true, and that
such evidence, statement or confession was duly taken".
10. The bare reading of the ibid Article
enunciates that F.I.R being a memorandum of the evidence given by a witness
before an officer authorized by law, is to be presumed as genuine and any
statement with regard to the facts narrated, are to be presumed as true, when
such statement was duly taken. When instant case is considered and tested at
the touchstone of above-mentioned provision of law, it becomes crystal clear
that report of Wali Muhammad complainant was recorded
in F.I.R by Muhammad Sikandar Khan (PW.8), who was
posted as S.H.O. in Police Station concerned, signed by him as well as by the
complainant. While PW.8 was an authorized Officer to record statement of the
complainant in the Register of F.I.Rs, maintained in Police Station pursuant to
Chapter 24.5 of the Police Rules, 1934. As complainant had died during the abscondence of appellant, so he could not be examined. The
author of F.I.R has endorsed his signature in terms of Article 78 of the Qanun-e-Shahadat Order, 1984.
Moreover, pursuant to Article 47 of the Qanun-e-Shahadat Order, 1984, the F.I.R recorded on report/statement
of Wali Muhammad complainant, who later on, died, is
relevant for the purpose of proving the facts stated therein. For convenience,
ibid Article is reproduced herein below:--
Article
47.
Relevancy of certain evidence for proving, in subsequent proceeding, the truth
of facts therein stated.--Evidence given by a witness in a judicial proceeding,
or before any person authorized by law to take it is relevant for the purpose
of proving, in a subsequent judicial proceeding, or in a later stage of the
same judicial proceeding, the truth of the facts which it states, when the
witness is dead or cannot be found, or is incapable of giving evidence or is
kept out of the way by the adverse party, or if his presence cannot be obtained
without an amount of delay or expense which, under the circumstance of the
case, the Court considers unreasonable:
Provided that;
the proceedings was between the same parties or
their representatives-in-interest;
the adverse party in the first proceeding had the
right and opportunity to cross-examine;
the question in issue were substantially the same in
the first as in the second proceeding.
Explanation. A criminal trial or inquiry shall be
deemed to be a proceeding between the prosecutor
and the accused within the meaning of this Article.
the proceedings was between the same parties or
their representatives-in-interest;
the adverse party in the first proceeding had the
right and opportunity to cross-examine;
the question in issue were substantially the same in
the first as in the second proceeding.
Explanation. A criminal trial or inquiry shall be
deemed to be a proceeding between the prosecutor
and the accused within the meaning of this Article.
The relevant
phrase employed in the Article is: "Evidence given by a witness in a
judicial proceeding, or before any person authorized by law" is clear
manifestation of Legislature, that a statement or evidence given even before an
authorized officer is relevant for the purpose of proving the truth of facts,
so stated when the person is dead. The Legislature has aptly supplied the
statutory recipe to cope with such an eventuality. The police official i.e.
(PW.8) the S.H.O. of Police Station, was an authorized Officer to record report
of complainant in Register of F.I.R. The complainant is undisputedly dead who
cannot be examined about his said report. In this backdrop, the truth of facts
stated in the F.I.R can be proved being relevant facts, in terms of Article 47
of the Qanun-e-Shahadat
Order, 1984. In view of the facts and legal provision, referred hereinabove,
statement of complainant made before PW.8 and recorded in the F.I.R Exh.PA, is
presumed to be true being duly taken by an authorized Officer. The objection of
learned counsel for appellant with regard to not proving the contents of F.I.R
is misconceived. Besides that, appellant has remained absconder for more than
16 years. During his such a long and noticeable abscondence, complainant died, so appellant cannot earn
premium of his abscondence by discrediting the
contents of F.I.R. Even otherwise, the case of prosecution is not solely based
on the report of complainant in F.I.R. Rather, PW.6 is
eye-witness of the occurrence, who has been thoroughly grilled in vehicle of
cross-examination. The only objection on admissibility of the report of
complainant, can be raised that accused had no opportunity to cross-examine
him. Suffice it to say that such statements, by virtue of Article 47 of the Qanun-e-Shahadat Order, 1984, are
taken as relevant fact which requires further corroboration from other
evidence. In the instant case, report of complainant is corroborated by
statement of PW.6, the eye-witness of the occurrence, alongwith
recoveries and medical evidence. While unexplained long noticeable abscondence of appellant lends further corroboration to the
prosecution case. These Articles of the Qanun-e-Shahadat Order, 1984, deal with special circumstances when
maker of statement is dead, which event, is not in control of the prosecution.
While in the instant case, it was appellant who absconded for such a long
period and was arrested when complainant was dead. Thus, it does not lye in his mouth to raise such objection about a situation,
for which, non-else, but he himself is responsible.
11. After registration of case, during spot
inspection, blood-stained earth and a spent bullet was recovered and taken into
possession by the Investigating Officer vide recovery memo. Exh.PR. Similarly, vide recovery memo. Exh.PR/1, 5 crime empties of
7.62 bore were also recovered and taken into possession on the same day. These
recoveries squarely establish the crime spot.
12. Learned counsel for the appellant contended
that presence of PW Mehboob Ali, at the spot, at the
time of occurrence, is not established, as he has not signed the F.I.R. Signing
of F.I.R by an eye-witness, accompanying the complainant, is not the
requirement of law. The name of PW Mehboob Ali, is specifically mentioned in the F.I.R., lodged promptly
within 30 minutes of the occurrence, being present in company of complainant
and deceased. Said Mehboob Ali was examined as PW.6,
who has reiterated the same version, which has been furnished by complainant in
the F.I.R. He categorically stated that deceased Ali Muhammad was his cousin
while accused Razaullah is also his cousin being
"Khalazad". In this way, the deceased as
well as appellant-convict are equally related to him. He was subjected to
lengthy and searching cross-examination, spread over 6 pages, on one date. He
was re-summoned on a flimsy ground and his cross-examination then continued for
three pages, on the next date. The tenor of his cross-examination, indicate
that most part of it was irrelevant, like: asking him to produce Matric certificate and College Admission Form as well as
other documents of the deceased on the next date, which seems illogical, having
no nexus with the case or indicating any firm line of defence.
However, despite lapse of more than 17 years and having subjected to lengthy
cross-examination, he stood firm to his stance and successfully passed the test
of cross-examination. No material contradiction or any dent could be made by
the defence in his statement. Rather, the place of
occurrence and other particular of the occurrence were further supplemented
through his cross-examination. Though, PW.6 Mehboob
Ali is the sole eye-witness of the occurrence, as complainant had died during abscondence of accused-appellant. His statement squarely
corroborates the report of complainant recorded in F.I.R which has already been
held admissible in evidence, in preceding paragraph. While statement of PW.6 is
corroborated by circumstantial evidence on material particulars through
recoveries of blood-stained earth, spent bullet from place of deceased and
crime empties from the place of accused and post-mortem report of the deceased
further supplements his statement.
13. Learned counsel for the appellant has
stressed on the misidentification of the appellant, keeping in view the time of
occurrence. But it is categorically stated by PW Mehboob
Ali that at the time of occurrence, the electric bulbs of nearby houses were
illuminated, and naturally so, because as per site-plan the place of occurrence
is a street between the houses on both the sides, and the inhabitants of the
houses in normal course might have illuminated their respective houses with
electric light. During cross-examination PW.6 stated that blood-stained earth
and crime empties were recovered in torch light and head-lights of police Van,
on the basis of which, learned counsel for the appellant contended that when
the recoveries were made in light of torch, then there was no light in which
the appellant could be identified. This factum is not only stated by PW.6, but
also by the Investigating Officer (PW.8), as well. It is understandable that
for search and recovery of small, rather any articles, like empties, spent
bullets and blood, the light of bulbs, installed in the surrounding houses, was
not sufficient. Rather, for that purpose, sharp light was required, for which
torch has been used by the Investigating Officer. While a man standing at a
distance of 57 feet, being a close relative, rather maternal cousin, can easily
be identified, when the site was illuminated by lights of bulbs in the near by houses, on both sides of the street/place of
occurrence. Thus, the question of misidentification, in view of evidence and
site sketch, prepared by the Investigating Officer, does not arise.
14. Another objection of learned counsel for the
appellant was that there was no need for the deceased to proceed from the
street towards the North and then turn toward the West and then come to the
South, where his house is situated, when he could easily approach his house
from the main road, straight to his house, from a short distance. The site-plan
Exh.PB,
does not depict any straight road or street leading towards the house of
deceased from main road which could have been adopted by the deceased and his
father. While this stance of the prosecution has been further supplemented by defence counsel in cross-examination of PW.6, wherein it
has been brought on record that on the Southern side of house of Muhammad Subhan, there is a house of Tariq Khan, then Ghazi Gul then a street, a Baithak of Ilyas, 5 shops of Abbas Khan and
then the house of Younas Khan. All these
constructions brought by defence through
cross-examination clearly suggest that this area is covered by all these
constructions, so there is no direct path, leading from main road to the house
of deceased nor any such suggestion has been put that there is any such street,
a short path, leading to the house of deceased, which could have been adopted
by the deceased. The street adjacent to house of Ghazi Gul, has also not been shown
to connect the house of deceased. In this way, the defence
itself has established the only route of the deceased and complainant adopted by them to their house at the time of occurrence.
Thus, this contention of learned counsel is also not tenable. Be that as it may,
the place of occurrence is not disputed, as no such suggestion has been put by defence to deny the place of occurrence.
15. Appellant has remained absconder for a period
of more than 16 years. It was contended that his absence and abscondence cannot be considered against him, as
proceedings required under Section 5-A of the Suppression of Terrorist (Special
Courts) Activities Act, 1975, has not been carried out. Suffice it to say that
though, no proceedings under the ibid Act has been conducted, but at the same
time appellant has not been tried in his absentia, as well. In the meanwhile
the S.T.A. Act, 1975, has been repealed in 2001 by insertion of Section 39-B in
Anti Terrorism Act, 1997. The appellant was arrested in 2008, when S.T.A. Act,
1975, was no more in the filed, as such,
he was tried by the Juvenile Court. However, he was duly proceeded against
under Sections 204 and 87, Cr.P.C. and thereafter was
declared Proclaimed Offender. By becoming fugitive from law he has, thwarted
any possibility of recovery of crime weapon or collection of any incriminating
evidence and thereby he has deprived the prosecution of collection of material
evidence through his own conduct, for which he cannot be bestowed with any
prize.
16. A brawl, which took place a few days prior to
the occurrence, between the accused and deceased during a Volleyball match, has
been alleged as motive of the occurrence. This fact has been reiterated by PW.6
in his statement and he has not been cross-examined on this particular point. Besides
that, there is no other enmity between the parties, which may prompt the
complainant to falsely implicate the appellant. Though, motive is established,
however, it is not the requirement of law to prove the same by all means and
convict is not entitled to acquittal merely for non-proving the motive, if
otherwise, the guilt of accused is established through cogent, coherent,
trustworthy and confidence inspiring evidence of unimpeachable character.
17. Another stance of learned counsel for the
appellant was that, as per autopsy report, directions of some of the injuries
on the person of the deceased are from up to downward, which suggest that some one has also made firing from higher level than that
of the deceased. According to post-mortem report there are 19 fire-arms
injures, out of which, eight are inlet wounds, having corresponding exits.
While one is a graze wound on lateral surface of his left leg. In view of
multiple injuries on the person of deceased, it is not certain that which
injury was the first, second and third. However, there is every
likelihood that the deceased after sustaining first injury, might have
fallen down, when he was under attack of indiscriminate firing and in that
situation, he sustained injuries from up to downward. When this aspect of the
case is taken into consideration with the report of complainant, real father of
the deceased, it seems impossible that he would spare the other assailant if
any. The medical evidence is just a corroborative
piece of evidence which does not identify the assailant nor can it over-weigh
the straightforward and confidence inspiring ocular account, furnished by
eye-witness. In this respect reference may be made to case titled, "Zakir Hussain vs. The State"
(2008 SCMR 222) and "Saeedullah Khan vs. The
State" (1986 SCMR 1027).
18. So far as delay in post-mortem examination of
the deceased is concerned, it is not the fault of the complainant party. Record
depicts that they have timely shifted the dead body to the hospital. It was the
doctor, who did not conduct autopsy at night time due to lack of facilities in
the hospital. This fact has been explained by Medical Officer in his Court
statement that the dead body was lying in the hospital
for whole night. The non-mentioning of F.I.R number in post-mortem report is
immaterial. Likewise, non-mentioning of section of law in the inquest report
would also not damage the case of prosecution being an omission of trivial
nature. Even otherwise, any technical lapse, occurring in the investigation of
the case would not be counted against the prosecution, if otherwise, direct
evidence is straightforward, coherent, trustworthy, confidence inspiring and it
rings true. It has time and again been held by the Hon'ble
apex Court that approach of the Courts while appreciating the evidence should
be dynamic and not static. By considering all the attending circumstances of
the case and evaluating the evidence, if the Court is satisfied that, the
accused charged has committed the crime, it should
record conviction, though there might be some technical lapses on the part of
Investigating Agency/prosecution, provided the same are not prejudicial to
accused in the fair trial. As by earning acquittal on the basis of cosmetic
discrepancies in prosecution evidence and some technical lapses, on the part of
the Investigating Agency, the people lose faith in the Criminal Justice System,
and in this way the criminals, in most of the criminal cases, are let free,
without being punished. In this regard wisdom may be derived from cases titled,
"Jafar Ali vs. The State" (1998 SCMR 2669)
and, "Khurshid vs. The State" (PLD 1996 SC
305).
19. Learned counsel for the appellant-convict has
tried to create mountain out of mole by arguing that there are major
contradictions in prosecution evidence but when one goes through the evidence,
there seems no such contradiction which may negate the basic fabric of the
prosecution story. By now it is settled law, that those contradictions in the
prosecution evidence are considered as fatal, which totally negate the
prosecution case. Mere cosmetic discrepancies, occurring in the statements of
the PWs, which are otherwise natural one would not be considered as fatal.
Rather, such like discrepancies in the statements of the PWs are inbuilt proof
of their truthfulness that they have come forward with natural account of the
events, without being tutored or fabrication. In the instant case,
undisputedly, the accused had absconded for long period of 16 years and
thereafter was arrested and then the PWs were examined. After the passage of
such a long time, when witnesses were subjected to lengthy and searching
cross-examination by a skillful hand, minor discrepancies do creep in from the
simple and rustic villagers, who are never used to such-tricky questions nor are
mindful about, the nature and consequences of answers thereof. The Courts are
never supposed to decide the matter in a mechanical manner by taking such
discrepancies as a tool to dislodge a genuine case. Rather, they are legally
obliged to go in depth of the evidence and assess it at the touch stone of
natural course of events and human conduct in normal pursuit of the society by
scrutinizing its intrinsic worth and if comes to the conclusion on their own
assessment that such an occurrence had in fact taken place, it become an
obligation to redress the grievance of aggrieved party. Although, accused is
considered as a beloved child of the Court, but at the same time the aggrieved
party is also not to be treated as an alien, as, it is he, who approaches the
Court for redressal of his grievance against
aggression of accused. If in a genuine case, the grievance of the victim is not
redressed, the people get frustrated from the judicial system and turn wild for
lynching, which situation becomes more hazardous. Though, the benefit of doubt
is to be extended to the accused, but that doubt should be of such a nature
which may inherently affect the prosecution case and pricks the judicial mind
about genuineness of the allegations. However, mere artificial or any hypothetical
doubt, should not be followed for acquittal of
accused. The penal laws impel multi dimensional impact at the society. First
and foremost is to pacify the victim by punishing the culprit. The punishment
so inflicted acts as a deterrent to the criminals and consequently it brings
about peace and tranquility and thereby transforms the society in to civilized
one.
20. For what has been discussed above,
prosecution has brought home the guilt of appellant through cogent, coherent,
trustworthy and confidence inspiring evidence, ocular as well as
circumstantial, and the learned trial Court was justified in recording
conviction. The impugned judgment of learned trial Court is well reasoned which
need not be interfered with by this Court. Thus, by maintaining the impugned
judgment, this appeal is dismissed. While learned counsel for
complainant has not pressed for enhancement of sentence, and rightly so,
because of appellant being Juvenile. Consequently, connected Cr.R. No. 03-B/2010, filed by complainant is also
dismissed.
(A.S.) Appeal
dismissed
