Galyat Law Firm

PLJ 2023 SC (Cr.C.) 50

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)—Constitutional petition--Conviction and sentence--Challenge to--Offence of murder--Leave to appeal--Both trial Court and High Court have concurrently recorded their findings of fact as to culpability of petitioner, after a thorough examination of prosecution evidence--Held: It is a well-settled principle in regard to exercise of discretionary jurisdiction vested in this Court under Article 185(3) of Constitution of Islamic Republic of Pakistan 1973, that in matter of granting leave to appeal, this Court does not function as an ordinary Court of appeal, and in order to justify grant of leave to appeal it must be shown that case involves some important question of law or impugned finding of fact is result of gross misreading or non-reading of material evidence or is so shocking or improbable that no reasonable person could have arrived at it on basis of evidence available on record of case--Counsel for petitioner has not been able to point out any misreading or non-reading of material evidence that could justify interference with concurrent findings of fact, nor does case involve any important question of law for determination by this Court--The leave to appeal is therefore declined and petition, dismissed.

[P. 52] A

PLD 1973 SC 469, 1975 SCMR 149, 2010 SCMR 1697, 1990 SCMR 291, PLD 2012 SC 421 & AIR 1979 SC 1284.

Syeda B.H. Shah, ASC for Petitioner.

Mirza Abid Majeed, Addl. P.G. Punjab for State.

Sardar Usman Sharif Khosa, ASC for Complainant.

Date of hearing: 1.9.2022.

PLJ 2023 SC (Cr.C.) 50
[Appellate Jurisdiction]
Present: Qazi Faez Isa and Syed Mansoor Ali Shah, JJ.
GHULAM RASOOL--Petitioner
versus
STATE--Respondent
J.P. No. 249 of 2018, decided on 1.9.2022.
(Against the order of Lahore High Court, Multan Bench
dated 31.01.2018 passed in Crl. A. No. 235 of 2012 and Crl. R.
No. 125 of 2012).

Order

Syed Mansoor Ali Shah, J.--Through the present jail petition for leave to appeal, the petitioner impugns the judgment dated 31.01.2018 of the Lahore High Court, whereby the appeal of the petitioner filed against the judgment of the trial Court has been dismissed. The trial Court had convicted the petitioner for the offence of committing murder of the complainant’s son, Muhammad Ilyas, and sentenced him to imprisonment for life, under Section 302(b), P.P.C.

2. Learned counsel for the petitioner submits that one Rasool Bakhsh, not Ghulam Rasool, was mentioned in the FIR to have caused the injury to the deceased (Muhammad Ilyas) and there is no explanation on record of the case that the petitioner, Ghulam Rasool, is the same person mentioned in the FIR as Rasool Bakhsh. Therefore, she contends, it creates a reasonable doubt as to the involvement of the petitioner in the commission of the alleged offence, which entitles the petitioner to be acquitted while giving him the benefit of this doubt. We are not impressed by this contention. The complainant and the petitioner are residents of the same vicinity, and throughout the proceedings of the case from the arrest of the petitioner till his conviction, no question as to the identity of the petitioner was ever raised. It is a matter of common knowledge that in rural areas of Punjab, people are usually known by their nicknames (aliases), and their exact names are often not known to others. The petitioner's alias, Rasoola, was also mentioned in the FIR together with name Rasool Bakhsh. The petitioner, in the present jail petition,[1] has himself mentioned his name as Ghulam Rasool alias Rasoola. His name, Ghulam Rasool alias Rasoola, is mentioned in the investigation proceedings including the recovery memos, in the Challan, in the statements of the prosecution witnesses and in his own statement recorded under Section 342, Cr.P.C. The contention as to doubt of the identity of the petitioner is therefore found baseless.

3. The next contention of the learned counsel for the petitioner is that the injury on the neck of the deceased, which led to his death, could not have been caused by a simple knife (churri) allegedly recovered from the petitioner. Dr. Abdul Rehman (PW-12), who conducted the post-mortem examination of the deceased, deposed in cross-examination that any sharp-edged weapon might cause the injury found on the neck of the body of the deceased. In view of the statement of PW-12, this contention of the learned counsel for the petitioner does not detract from the prosecution's case that the recovered churri was the weapon of offence.

4. Having heard the learned counsel for the parties at some length and examined the record of the case, we find that both the trial Court and the High Court have concurrently recorded their findings of fact as to the culpability of the petitioner, after a thorough examination of the prosecution evidence. It is a well-settled principle[2] in regard to the exercise of discretionary jurisdiction vested in this Court under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, that in the matter of granting leave to appeal, this Court does not function as an ordinary Court of appeal, and in order to justify the grant of leave to appeal it must be shown that the case involves some important question of law or the impugned finding of fact is the result of gross misreading or non-reading of the material evidence or is so shocking or improbable that no reasonable person could have arrived at it on the basis of the evidence available on the record of the case. The learned counsel for the petitioner has not been able to point out any misreading or non-reading of the material evidence that could justify interference with the concurrent findings of fact, nor does the case involve any important question of law for determination by this Court. The leave to appeal is therefore declined and the petition, dismissed.

(A.A.K.) Petition dismissed

2023 SCMR 670

Qatl - i - amd- Reappraisal of evidence . During the course of proceedings before the Trial Court , the complainant stated before the Court that he moved an application for registration of case , which bears his signature , without disclosing time and the name of the subscriber of the application --- Further it was not mentioned anywhere that where and when such application was drafted when it was an admitted fact that the " Police Karvai " was conducted in Police Station --- Complainant was a distant relative of deceased residing at a distance of 6 kilometers while real son of deceased who was inmate of the same house was absent in every material aspect of the case , which was a serious lapse --- Son of the deceased who was stated to have witnessed the occurrence , was given up at the time of trial --- Occurrence had taken place in the odd hours of the night , however , no source of light had been mentioned by the Investigating Officer either in the FIR , rough site plan , scaled site plan or even during the course of proceedings before the Trial Court --- Both the alleged witnesses of the ocular account were not residents of the locality and were residing at a distance of 5/6 kilometers away from the place of occurrence --- Not a single person from the inmates of the house where occurrence took place or from surrounding inhabitants appeared in support of the prosecution version and the whole prosecution case was silent about this aspect of the matter --- Record clearly reflected that the prosecution witnesses were not present at the place of occurrence , rather they managed to appear as witnesses after due consultation and deliberation --- Record further showed that the complainant was inimical towards the deceased --- In such circumstances , it seemed impossible that deceased would have invited an inimical person for his help before his death --- Prosecution had failed to prove its case beyond any reasonable shadow of doubt --- Appeal was allowed and accused persons were acquitted of the charge .

Motive --- Burden of proof --- if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence --- Otherwise , the same would go in favour of the accused .

Qatl - i - amd - Crime empty sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon --- In such circumstances the positive report of the Laboratory looses its evidentiary value --- Sending the crime empties together with the weapon of offence is not a safe way to sustain conviction of the accused and it smacks of foul play on the part of the Investigating Officer simply for the reason that till recovery of weapon , he keeps the empties with him for no justifiable reason .

Why is the case property to be produced and exhibited during the trial?
Under which provisions of law the case property to be produced and exhibited during the trial?
Which provisions of law deal with the proposition?
Rule 22.16 of the Police Rules, 1934 (“the Police Rules”) deals with the “case property”. Sub-rule (1) thereof provides, inter alia, that in certain circumstances, police shall seize weapons, articles and property in connection with criminal cases, and take charge of property which is unclaimed. Sub-rule (2) thereof provides, inter alia, that each weapon,article or property (not being cattle) seized under the above sub-rule shall be marked or labelled with the name of the person from whom, or the place where, it was seized, and reference to the case diary or other report submitted from the police station. If articles are made up into a parcel, the parcel shall be secured with sealing wax, bearing the seal impression of the responsible officer, and shall similarly be marked or labelled. Such articles or parcels shall be placed in safe custody, pending disposal as provided by law or rule. Sub-rule (3) thereof provides, inter alia, that the police shall send to headquarters or to magisterial outposts all weapons, articles and property connected with cases sent for trial, as well as suspicious, unclaimed and other property, when ordered to do so by a competent Magistrate. Sub-rule (4) thereof provides, inter alia, that motor vehicles detained or seized by the police in connection with cases or accidents shall be produced before a Magistrate after rapid investigation or by means of in-complete challan. The evidence relating to the identity or condition of the vehicle should be led and disposed of at an early date, and the Magistrate should then be invited to exercise the discretion vested in him by Section 516-A, Code of Criminal Procedure, to order that the vehicle be made over to the owner pending conclusion of the case on security to be produced whenever demanded by the Court.
Rule 22.18 of the Police Rules deals with “custody of property”. Sub-rule (1) thereof provides, inter alia, that property exceeding in value of Rs.500/-, whether appertaining to cases or seized on suspicion, or taken as unclaimed, shall be forwarded as soon as possible to district headquarters for deposit in the treasury in accordance with Police Rule 27.18(2) or, in the case of property connected with a case to be tried at an outstation or Tahsil, to the Tahsil Treasury, where it shall be placed in the Tahsil strong-room under the charge of Tahsildar. Sub-rule (2) thereof provides, inter alia, that all case property and unclaimed property, other than cattle, of which the police have taken possession, shall, if capable of being so treated, be kept in the store-room. Otherwise, the officer in-charge of the police station shall make other suitable arrangements for its safe custody until such time as it can be dealt with under sub-rule (1) above. Each article shall be entered in the store-room register and labelled. The label shall contain a reference to the entry in the store-room register and description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles shall be given on the label and in the store-room register. The officer in-charge of the police station shall examine, government and other property in the store-room, at least twice a month and shall make an entry in the station diary on the Monday following the examination to the effect that he has done so.
Rule 22.70 of the Police Rules provides that Register No. XIX shall be maintained, wherein, with the exception of articles already included in Register No. XVI, every article placed in the store-room shall be entered and the removal of any such article shall also be noted in the appropriate column.
Rule 27.11 of the Police Rules provides that the head of the legal branch shall, with the help of his assistants, maintain the Registers, including Register of case property and unclaimed property in Form 27.11(1), which may be destroyed three years after being completed.
Rule 27.12 of the Police Rules provides that at headquarters, the Deputy Superintendent of Police (Legal), with the assistance of his staff, shall take charge of weapons, articles and property connected with their safe custody until the case is decided. When final orders are passed in the case, such weapons, articles and property shall, if not made over to the owner, be made over to the District Nazar. The Deputy Superintendent of Police (Legal) shall similarly take charge of, and be responsible for, the safe custody of suspicious property until the issue of the proclamation under Section 523 of the Code of Criminal Procedure, when such property be made over to the District Nazar.
Thus, the Police Rules mandate that case property be kept in the Malkhana and that the entry of the same be recorded in Register No. XIX of the said police station. It is the duty of the police and prosecution to establish that the case property was kept in safe custody, and if it was required to be sent to any laboratory for analysis, to further establish its safe transmission and that the same was also recorded in the relevant register, including the road certificate, etc. The procedure in the Police Rules ensures that the case property, when is produced before the court, remains in safe custody and is not tempered with until that time. A complete mechanism is provided in Police Rules qua safe custody and safe transmission of case property to concerned laboratory and then to trial Court.
Now adverting to the Lahore High Court Rules and Orders (Civil and Criminal) (“High Court Rules”), it is to be noted that Part B of Chapter 24 of Volume III thereof deals with the trial of the Sessions cases. Rule 14-E thereof provides, inter alia, that care is often required in tracing the custody of a prisoner's substances, personal food, bloodstained clothes, etc. The evidence should never leave it doubtful as to what person or persons have had charge of such articles throughout the various stages of the inquiry, if such doubt can be cleared up. This is especially necessary in the cases of articles sent to the chemical examiner. The person who packs, seals and dispatches such articles should invariably be examined. Rule 14-F of the High Court Rules provides that clothes, weapons, money, ornaments, food and every article which forms a part of the circumstantial evidence should be produced in Court and their connection with the case and identity should be proved by witnesses.
Rule 14-H thereof provides, inter alia, that all exhibits should be marked with a letter or number. Articles which are produced in evidence should have a label attached to them bearing a number, and that number should be quoted throughout the record wherever any such article is referred to and should be distinctly marked as “admitted or not admitted”. If the exhibits have already been assigned numbers by the police, then that series of numbers should be mentioned to avoid confusion. A printed label should be affixed or attached to each exhibit containing, number of exhibit, produced by, admitted (signature of court), date, case and description of exhibits. The Sessions Judge is responsible to see that these entries are properly made.
Thus, under the Police Rules and the High Court Rules, mentioned above, in all cases, especially in the cases of articles sent to the chemical examiner, it is necessary that there be no doubt as to what person or persons have had charge of such articles throughout various stages of the inquiry. Besides, the person who packed, sealed, and dispatched such articles should invariably be examined. Further, the clothes, weapons, money, ornaments, food and every other article that forms a part of the circumstantial evidence has to be produced in court, and their connection with the case and identity should be proved by witnesses.
Now, adverting to the relevant provision of the Code of Criminal Procedure, 1898, Section 516-A thereof deals with the order for custody and disposal of property pending trial in certain cases. It provides that when any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any criminal court during any inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and if the property is subject to speedy or natural decay, it may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. The first proviso thereto provides that if the property consists of explosive substances, the court shall not order it to be sold or handed over to any person other than a government department or office dealing with, or to an authorized dealer of such substances. The second proviso thereto provides that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance, seized or taken into custody under various laws, the court may, either on an application or of its own motion, and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other court, and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf. The third proviso thereto provides that such samples shall be deemed to be whole of the property in an inquiry or proceeding in relation to such offence before any authority or court.
Thus, the Court, on an application or of its own motion, under its supervision and control, can obtain and prepare such a number of samples of the property as it may deem fit for safe custody and production before it or any other Court and can cause the destruction of the remaining portion of the property under a certificate issued by it in that behalf. Only then shall such samples be deemed to be the whole of the property in an inquiry or proceeding in relation to such offence before any authority or court. Even then, the sample parcels and the certificate are to be produced before the trial court and required to be exhibited, alongwith the report of the said Magistrate.
Another important provision is the Control of Narcotic Substances (Government Analysts) Rules, 2001, which provides the procedure to be followed by the police while dispatching the narcotic for the test or analysis and also the procedure to be adopted by the analyst.
The above provisions make it clear that samples of reasonable quantity have to be drawn at the spot from the narcotic substances and the same have to be dispatched to the nearest Testing Laboratory. It is important to note that the samples have to be dispatched for analysis at the earliest, but not later than seventy-two hours of the seizure. Further, the samples have to be dispatched for analysis, either by insured post or through special messenger duly authorized for the purpose, under the cover of a “Test Memorandum” specified in Form-I and the envelope should be sealed and marked as “Secret Drug Sample/Test Memorandum”. After reaching the laboratory, the sealed envelope containing the samples should be carefully opened and given a distinct laboratory number, further subdivided agency-wise and the laboratory numbers should form a continuous series for each year, and for that purpose, a separate register has to be maintained. Thereafter, all samples have to be passed to the analyst on the same day, who has to keep the same in his safe custody, examine and record their weight in the Test Memorandum, compare the markings on the Test Memorandum with the markings on the package envelopes, and to ensure to test the relevant samples. It is emphasized that in no case should the analysis of a narcotic substance be delayed, as the courts refuse to extend remand beyond fifteen days in the absence of a chemical report.
In the rules referred to above, great emphasis has been laid on the safe custody and safe transmission of the narcotic substances and their transmission to the laboratory within seventy-two hours, perhaps for the reason that if the recovery of the narcotics from the custody of an accused is proved, he has to be convicted relying upon the report of the chemical examiner.
Further, the case property is always relevant for the decision of the case because if the narcotics are recovered from any accused, the same should have been shown in court, and then the report of the laboratory would be helpful to the prosecution. Likewise, in narcotics cases, the conviction and sentence are based on the possession of the narcotics or on aiding, abetting or associating with the narcotics offences. In that eventuality, it is incumbent upon the prosecution to produce the case property before the court to show that this is the narcotics/case property that was recovered from accused’s possession. The defense counsel may then request the court to de-seal and weigh the case property.
Even otherwise, if the prosecution claims that huge quantities of narcotics, i.e., many mounds, were recovered but the same were never produced, then how can the accused be convicted for the said narcotics, which were never before the court or may not even be in existence? However, if the narcotics were destroyed under Section 516-A of the Code, then, of course, the said practice should be done after issuing notice to the accused, and the destruction should be done in the presence of the accused or his representative. The Magistrate is required to prepare samples of the narcotics substance that was ultimately destroyed so that a representative of the destruction process could be produced in the Court; besides, the certificate so issued by the Magistrate would also be relevant and the same should be exhibited in the Court. When the contraband, on the basis of which a person is convicted, is not produced or exhibited, how can a conviction be sustained on the basis of the same? When the material (narcotics) is neither produced nor exhibited, the presumption can be drawn that it is not in existence at all. When the best evidence, i.e., the case property/ narcotics, vehicle, etc., is withheld by the prosecution and there is no plausible explanation for the non-production of the same in court, an adverse inference or assumption against the prosecution could be drawn under Article 129-(g1) of the Qanoon-e-Shahadat Order, 1984, and it can easily be presumed that no such material/narcotics is in existence. Needless to observe that if the case property is not produced in Court, the concerned authority/prosecution is required to furnish plausible explanation based upon concrete material and not mere lame excuses.
It is further to be noted that in a stringent law such as the CNSA, where capital punishment or imprisonment for life can be awarded even on the testimonies of police officials, in order to bring home guilt against an accused, it is necessary for the prosecution to prove their case through reliable, unimpeachable, and confidence-inspiring evidence beyond any reasonable doubt. The harder the punishment, the stricter the standard of proof

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