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Petitioner: Altaf Hussain VS Respondent: The State
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh, Sadiq Mahmud Khurram Title: Altaf Hussain vs The State Case No.: Criminal Appeal No. 72-J and Capital Sentence Reference No. 5 of 2015 Date of Judgment:2019-12-04 Reported As: 2020 P Cr. L J 1419 Result: Appeal allowed
JUDGMENT
JUDGMENT TARIQ SALEEM SHEIKH, J.---By this consolidated judgment we propos e to decide Capital Sentence Reference No.05/2015 and Criminal Appeal No. 72-J/2015 as both these matters arise from judgment dated 22.5.2015 passed by the learned Judge, Anti-T errorism Cour t-I, Multan, in case FIR No.174/2013 dated 23.4.2013 registered at Police Station Alpa, District Multan, for offences under sections 302/ 324/336-B/337-A(i)/337-F(i)/34, P.P.C. read with Section 7 of the Anti-T errorism Act, 1997 (the " Act"). 2. Brief facts of the case as per FIR (Exh.PA/1) registered at the instance of Ghulam Muhammad (PW-7) are that on 22.4.2013 he slept in the cattle-shed along with Muhammad Aslam (PW-8) and PW Muhammad Zafar (since dead) while his wife Azizan Mai, daughters Sania and Sonia, aged six and eight years respectively , were in the courtyard of the house. At about 10:30 p.m. he and PWs Muhammad Zafar and Muhammad Aslam were woken by shrieks and saw Altaf Hussain (Appellan t in Criminal Appeal No.72-J/2015) and Nazir Hussain (since acquitted) coming out from his house. They identified them in the light of the electric bulb that was installed there. He and his companions rushed into the house and found that the accused had thrown acid on his wife and daughters and they were severely burnt. Somebody called Rescue-1 122 who shifted the injured to the Nishtar Hospital. The motive behind the occurrence was that Altaf Hussain had illicit relations with Fatima Mai who used to visit Azizan Mai. The Appellant suspected that the latter helpe d Fatima Mai meet other people. Due to this grudge the Appellant along with his co-accused Nazir Hussain attempted to kill his wife and daughters by throwing acid on them. The Complainant was on his way to police station when he came across Abdul Hameed/SI (PW-10) at Adda Bund Bossan "who reduced his statement to writing at 1:30 a.m. and sent the compla int Exh.P A to the police station through Muhammad Ramzari 1251/C on the basis of which Ghulam Murtaza/ASI (PW-1) drew FIR No.174/2013 (Exh.P A/1). Immediately after that Abdul Hameed/SI went to the hospital where he prepared Injury Statements of
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Azizan Mai (Exh.PC), Sania Bibi (Exh.PE ) and Sonia (Exh.PG) and forwarded their medico-legal reports 'to Latif Ahmad/Inspector (PW -11) to whom the investigation of the case was entrusted. 3. Latif Ahmad/Inspector (PW-11) reached the place of occurrence, prepared rough site plan of the crime scene (Exh.PT), secured quilt P-1, foam P-2 and pillow P-3 (all stained with acid) vide Recovery Memo Exh.PP . He recorded supplementary statement of the Complainant and statements of PWs Zafar , Aslam, Robina Mai and Waziran Mai under section 161, Cr.P.C. On 24.4.2013, he approached the Registrar of Burn Unit, Nishtar Hospital, Mttltan, sought permission' through application Exh.PU and recorded statements of Azizan Mai (Exh.PV) and Sonia Bibi. On the same day he arrested Nazir Hussain (since acquitted) and on 27.4.2013 sent him to judicial lock-up. On 5.5.2013 he arrested Altaf Hussain and the following day obtained his physical remand for seven days. On 7.5.2013, Azizan Mai died whereupon Latif Ahmad/Inspector had her postmortem examination conducted and after that secured her last worn clothes Qameez P-4, Shalwar P-5, and Dopatta P-6 vide Recovery Memo Exh.PQ. On 23.5.2013, Sania Bibi also expired and after her autopsy he took into possession her last worn clothes and Dopatta P-7 vide Recovery Memo Exh.PR. On 15.5.2013, Altaf Hussain got recovered acid bottle P-8 which he seized vide Recovery Memo Exh.PS. He got prepared scaled site plan in triplicate Exh.PO , Exh.PO/1 and Exh.PO/2 from Draftsman Irfan Hayat (PW-3). During investigation he found that Altaf Hussain had committed the offence while Nazir Hussain was innocent. Report under section 173, Cr .P.C. was submitted accordingly . 4. The learned Judge, Anti-T errorism Court-I, Multan, summoned both the accused and indicted them on 22.6.2013. They denied the charge and claimed trial. In order to prove its case the prosecution examined 12 witnesses. Complainant Ghulam Muhammad (PW-7), Muhammad Aslam (PW-8), Robina Mai (PW-9) and Sonia Bibi (PW-12) furnished the ocular accou nt. Muhammad Aslam (PW-8) also testified about the recovery of acid bottle P-8 at the instance of Altaf Hussain. Dr. Saima Erum (PW-2) provided medical evidence. The Investigating Officers, Abdul Hameed/SI (PW-10) and Latif Ahmad/Inspector (PW-11), gave details of their investigation and the evidence they collected in this case. The remaining witnesses were formal in nature. In documentary evidence, the prosecution inter alia produced reports of the Punjab Forensic Science Agen cy (Exh.PX and Exh.PY) and statement of Azizan Mai (dying declaration) already brought on file as Exh.PV . 5. Dr. Saima Erum (PW-2) deposed that on 23.4.2013 at 2:00 p.m. she medically examined Azizan Mai, in the Burn Unit of Nishtar Hospital, Multan, with history of acid burn injuries. She found left side of her face, both arms, left side of neck and left leg burnt and left eye swollen. Her total burnt area was about 40%. On the same day, at about 2:30 p.m., she examined Sania Bibi and Sonia Bibi. The former's condition was serious. She had acid burns on her face (with swelling of both eyes), both arms, front of chest, abdomen and legs. The total burnt area was 47%. On the other hand, Sonia Bibi had acid burn spots on face and arms. Azizan Mai expired on 7.5.2013 and Sania Bibi on 12.5.2013. Dr. Saima Erum deposed that she also conducted their postmortem and, in her opinion, both of them died due to septicemia which was caused by .deep chemical burns. 6. After the prosecution was through with its evidence the learned trial Court examined the accused under section 342, Cr.P.C. They refuted the allegations levelled against them and professed innocence. In reply to the question as to why this case was registered against them and why the PWs had deposed against them, they stated: Altaf Hussain : "I have been falsely implicated in this case. The occurrence took place in dark night. I had no grudge with the deceased or the Complainant and his family members. The true position is that Zafar PW used to tease my sister due to which a number of times altercatio n took place between Zafar PW (who is a close relative of Complainant) and me and 2/3 times prior to occurrenc e I gave him beating. Due to this grudge I and my brother-in-law Nazir Hussain have been falsely involved in this case. During the investigation, my first version was wrongly recorded by the I.O. as he was in league with the complainant party . I had no motive with the deceased or his family members. It was a blind murder . I am innocent." Nazir Hussain : "I have been falsely implicated in this case. The occurrence took place in dark night. I was declared innocent during investigation. I rely upon the statement of my co-accused who is my brother-in-law and his sister is married to me."
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The accused neither opted to make statements on oath under section 340(2), Cr.P.C. nor examined any witness in their defence. 7. On the conclusion of the trial, vide judgment dated 22.5.2015, the learned trial Court acquitted Nazir Hussain of the charges. However , he convicted and sentenced Altaf Hussain as under: i) Convicted under section 302(b), P.P.C. and sentenced him to death on two counts for committing murder of Azizan Mai and Sania Bibi with direction to pay Rs.200,000/- to the legal heirs of the deceased as compensation in terms of section 544-A, Cr.P.C. and in default thereof to undergo simple imprisonment for a further period of six months. ii) Convicted under section 336-B, P.P.C. and sentenced to rigorous imprisonment for 14 years with fine of Rs.10,00,000/- on two counts and in default thereof to undergo simple imprisonment for a further period of two years on each count. iii) Convicted under section 7(a) of the Anti-Terrorism Act, 1997, and sentenced to death with fine of Rs.200,000/- and in default thereof to undergo simple imprisonment for a further period of two years. Altaf Hussain was given benefit of section 382-B, Cr.P.C. in respect of sentences of imprisonment passed against him. 8. Altaf Hussain (hereinafter referred to the "Appellant ") has filed Criminal Appeal No. 72-J/2015 against his conviction and sentence while the learned Judge, Anti-T errorism Court-I, Multa n, has sent Capital Sentence Reference No. 05/2015 to this Court under section 374, Cr .P.C. for confirmation of his death sentence. 9. In support of Criminal Appeal No.72-J of 2015, Mr. Javed Iqbal Bhatti, Advocate , contended that the prosecution had failed to prove its case against the Appellant beyond shadow of doubt. The learned trial court had not appreciated the evidence properly which had caused serious miscarriage of justic e. He argued that it was a night time occurrence and the prosecution could not establish that there was any source of light at the site in which the assailants could be identified. He next argued that Muhammad Aslam (PW-8) and Robina Mai (PW-9) could not prove their presence at the crime scene at the relevant time. On the other hand, there were material discrepancies in the statements of Complainant Ghulam Muhammad (PW-7) and Sonia Bibi (PW-12) which made them unreliable. Medical evidence also contradicted them. The learned counsel further argued that the recovery of bottle P-8 was tainted and could not be used as a corroboratory piece of evidence. Lastly , the motive was not proved. He prayed that the Appellant's appeal be accepted and he may be acquitted of the charges. 10. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the Complainant, Mr. Muhammad Wakeel Chaudhry , Advocate, controverted the above contentions. He contended that the Appellant had committed qatl-i-amd of Azizan Mai and Sania Bibi by throwing acid at them. The prosecution case was proved by unimpeachable ocular account which was inter alia furnished by Sonia Bibi (PW-12), the injured witness, and the dying declaration of Azizan Mai deceased (Exh.PV). The learned Law Officer maintained that the ocular account was corroborated by medical evidence and recovery of bottle P-8 at the instance of the Appellant. In the circumstances, the learned trial court had rightly convicted the Appellant and no exception could be taken thereto. He prayed that his appeal may be dismissed and the capital punishment awarded to him be confirmed. 11. We have heard the learned counsel and perused tile reccrd. 12. The charge against the Appellant is that on 22.4 2013 at about 10:30 p.m. he along with his co-accused Nazir Hussain in furtherance of their common intention trespassed into the house of Complainant Ghulam Muhammad (PW-7) and threw acid on his wife Azizan Bibi and daughters Sania Bibi and Sonia Bibi (PW-12). Subsequently , Azizan Mai and Sania Bibi succumbed to burn injuries. Complainant Ghulam Muhammad (PW-7), Muhammad Aslam (PW -8), Robina Mai (PW -9) and Sonia Bibi (PW -12) furnished ocular account of the incident. 13. At the very outset, we have observed that according to the prosecution the occurrence took place at 10:30 p.m. but the matter was reported to the police at 1:30 a.m., i.e. after three hours, and FIR No.174/2013 Exh.P A/1 was registered at 2:00 a.m. although the police station was just six miles from the place of occurrence. There is no explanation for this delay so this Court must scrutinize the evidence with utmost care to obviate possibility of false implication.
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14. Ghulam Muhammad (PW-7) testified that on the fateful night he was sleeping in his cattle-shed with Muhammad A slam (PW-8) and PW Muhammad Zafar (since died) when they were woken up by the screams of the children who were sleeping in the courtyard of the house. As they got up they saw the appellant fleeing. They rushed into the house and found Azizan Mai, Sania Bibi and Sonia Bibi burnt with acid. Muhammad Aslam (PW-8) deposed to the same effect. Both the witnesses claimed that they identified the Appellant in the light of an electric bulb that was on. However , during investigation no bulb was taken into possession by the Investigating Officer. Hence, identification of the Appellant is doubtful. Reliance is placed on Sardar Bibi and another v. Munir Ahme d and others (2017 SCMR 344), Arshad Khan v. The State (2017 SCMR 564) and Gulfam and another v. The State (2017 SCMR 1 189). 15. The testimony of Ghulam Muhammad (PW-7) otherwise lacks credibility for more than one reasons. Firstly , it is in conflict with the deposition of Sonia Bibi (PW-12). Ghulam Muhammad stated that he just saw the Appellant coming out of his house while Sonia Bibi said that he caught and grappled with him for about two to four minutes before he managed to escape. Secondly , Ghulam Muhammad could not specifically name the person who called Rescue 1122. Thirdly , his conduct was quite unnatural. He neither accompanied the injured to the hospital nor rushed to the police station to lodge the FIR which, as we have already noted, was registered after 31/2 hours. 16. The testimony of Muhammad Aslam (PW-8) and Robina Mai (PW-9) is also open to criticism. Both of them were chance witnesses. The law relating to above witnesses is well settled. Reference may be made to Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) wherein the Hon'ble Supreme Court of Pakistan held: "A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business , place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily , is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt." 17. In the instant case, neither PW Muham mad Aslam nor PW Robina Mai could justify their presence at the time of occurrence. Muhammad Aslam lived 20 acres away from the Complainant's house. He claimed that he came to see him in the evening but did not tell why and, more importantly , did not give any reason for staying overnight. Similarly , Robina Mai (PW-9) deposed that she ,came to Complainant Ghulam Muhammad's house 3/4 days before the incident to spend a few days with his family but did not explain why. We have also noted that she was the daughter of PW Muhammad Aslam and during the cross-examination negated his stance that he came to Ghulam Muhammad's house in the evening on 22.4.2013. Relevant excerpt is reproduced hereunder: "My house is situated on eastern side of 'Band'. The house is situated at a distance of 1/1/2 squares from 'Band'. Aslam PW is my father and we reside in same house. I along with Aslam, Zafar and Mst. Waziran Mai had jointly gone at the house of Ghulam Muhammad. We had left our house at morning time and we went there 3/4 days prior to the occurrence. W e remained there till the time of occurrence." Sonia Bibi (PW -12) gave altogether a dif ferent narrative. She said: "The PWs namely Aslam and Zafar had come to our house 4/5 days prior to the occurrence. Zafar and Aslam PWs were residing at a dictance of one hour of my walking. Mst. Robina PW is my maternal cousin. Mst. Robina PW is permanently residing in our house." 18. We have noted that Robina Mai (PW-9) is discredited because she also made material improvements in her previous statement Exh.DB which she got recorded under section 161, Cr.P.C. She was duly confronted with these improvements in her cross-examination. Relevant extract is reproduced hereunder: "I had mentioned before the 1.0. that Altaf accused threw acid upon the injured persons and Nazir was standing there but I don't know as to whether it was .recorded by the I.O. or not. Confronted with Exh.DB where it is not so
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recorded. I have mentioned before the I.O. that it was Altaf accused who was holding a plastic yellow colour can at the time of occurrence. Confronted with Exh.DB her statement wherein it is mentioned that it was a bottle can of yellow colour which was being caught by Altaf accused. I had mentioned in my statement before the I.O. that accused person after throwing the acid upon injured ran away . Confronted with Exh.DB wherein it is not so recorded." 19. PW Sonia Bibi is the prime prosecution witness as she was injured in the occurrence. She stated her age as 10 years when she appeared before the learned trial Court which means that she was eight years old at the time of incident. It is true that her testimony cannot be discarded because of her tender age but it is by now well settled that the Court should be very cautious in relying on the evidence of such witnes s. In State through Advocate General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1), the Hon'ble Supreme Court of Pakistan held: "Evidence of child witness is a delicate matter and normally it is not safe to rely upon it unless corroborated as rule of prudence. Great care is to be taken that in the evidence of child element of coaching is not involved. Evidence of child came up for examination before Division Bench of the High Court in the case of Amir Khan and others v. The State (PLD 1985 Lah. 18) in which after consideration of the releva nt case-law on the subject, Abdul Shakurul Salam, J. (as he then was) as author of the judgment observed that 'children are a most untrustworthy class of witnesses, for, when of tender age, as our common experience teaches us, they often mistake dreams for reality , repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and the desire of notoriety'. In any case the rule of prudence requires that the testimony of child witness should not be relied upon unless it is corroborated by some evidence on the record." 20. In Shaukat Ali alias Bagga and 2 others v. The State (1995 PCr.LJ 1108), a Division Bench of this Court held: "...a child witness is a competent in law but rule of prudence requires very strong corroborative evidence in support of the statement of a child witness." 21. Again, in Mir Muhammad Farid v . Mst. Amreen and 4 others (2003 YLR 2234 ), the Court ruled: "No hard and fast rule can be made to ascertain whether a child is competent witness or not but it depends on the facts and circumstances of each case. The Courts have always accepted such evidence with great care and caution because a child of tender age is a dangerous witness who can easily repeat glibly a story put into his mind and do not possess the discretion to distinguish between what he/she has seen and what they have heard. As a matter of prudence, therefore, Courts were generally chary of putting absolute reliance on the evidence of child witness and look for corroboration of the same from other circumstances in the case." 22. More recently , in Ulfat Hussain v . The State (2010 SCMR 247 ), the Hon'ble Supreme Court held: "...though in principle conviction can be based upon the testimony of an intelligent and understanding child witness yet the Courts have generally preferred to adopt the settled principle of prudence and the rule of care attached to the sole testimony of a child witness despite child's intelligent disposition." 23. In the instant case, in our opinion, it is not safe to rely on the testimony of PW Sonia Bibi for a number of reasons. Firstly , from the facts of the case it appears that the gory scene was enacted in a few minutes. Sonia Bibi was herself in a trauma and it was not possible for her to cognize the situation in such a short span of time. Secondly , we have already noted that the prosecution has failed to prove that the site was lighted and it was possible to identify the assailants. Thirdly , there are material contradictions in the statements of Sonia Bibi and other witnesses which we have already discussed hereinabove. And lastly , it is not corroborated by any evidence - not even medical evidence as we shall see in the sequel. 24. According to the prosecution, on 24.4.2013 Latif Ahmad/ Inspector (PW-11) approached the Registrar of Burn Unit, Nishtar Hospital, Multan, sought permission through application Exh.PU and recorded the statement of Azizan Mai (Exh.PV) who was then in her senses. The learned Deputy Prosecutor General contends that it should be treated as her dying declaration. Indeed, the said statement is admissible under Article 46 of the Qanun-e- Shahadat, 1984, as held in Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others (PLD 1992 SC 211), Ghulam Mustafa v. The State and others (PLD 2015 Pesh. 23) and Dilmurad Diljan alias Dilo (2015 PCr.LJ 1389) .
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However , it must be closely scrutinized before it is relied upon. The Supreme Court of India summarized the law relating to dying declaration in Khushal Rao v. State of Bombay (PLD 1958 SC (Ind.) 203) to which reference may be made with considerable advantage. The Court ruled: "(i) It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (ii) Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (iii) It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (iv) A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (v) A dying declaration which has been recorded by a competent magistrate in the proper manner , that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; (vi) In order to test reliability of a dying declaration, the Court has to keep all the relevant circumstances in view, for example, whether there was sufficient light if the crime was committed at night; whether the dying man had the capacity to remember the facts stated and his memory was not impaired at the time he was making the statement; (vii) The statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the of ficial record of it; and (viii) The statement had been made at the earliest opportunity and was not the result of tutoring by interested parties." 25. In Zarif Khan v. The State (PLD 1977 SC 612), the Hon'ble Supreme Court of Pakistan ruled that the weight to be attached to the statement of a dead person depends on the circumstances of each case. If the court comes to the conclusion that the dying person was truthful while making his statement, it does not require further corroboration and conviction can be recorded on the basis thereof. On the other hand, if the Court finds it unreliable, it must be corroborated by other independent evidence. Relevant excerpt is reproduced hereunder: "...a dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the appreciation of evidence in criminal cases. It cannot be laid down as an absolute rule of law, nor even of prudence, that a dying declaration cannot form the sole basis of conviction unless it is corroborated. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made so that the Court is satisfied that the same is true and genuine. In order to test the reliability of a dying declaration, the Court has to keep in view the various circumstances like the opportunity of the dying man for observation, and whether the capacity of the deceased to remember the facts stated…
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