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Petitioner: MUHAMMAD TAZEEM and others VS Respondent: THE STATE and others
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Khawaja Muhammad Saeed, Iftikhar Hussain Butt Title: MUHAMMAD TAZEEM and others vs THE STATE and others Case No.:Criminal Appeals Nos. 17 and 22 of 1998 Criminal Appeal No, 5 of 1995
JUDGMENT
Reported As: 2000 YLR 1542 Result: Appeal accepted Judgment JUDGMENT ' IFTIKHAR HUSSAIN BUTT, J.---Both the above entitled appeals arise out of a common judgment recorded by the District Criminal Court. Bhimber on June 29, 1998, whereby the appellant Muhammad Tazeem was awarded the sentence of 11 years, rigorous imprisonment and appellant Manzoor Ahmed was sentenced to 3 years, rigorous imprisonment. Muhammad Tazeem and Manzoor Ahmed appellants, through this appeal, have challenged their conviction, whereas the complainant Ahmed Din and the heirs of the deceased in their appeal have sought the enhancement of sentence up to Muhammad Tazeem and Manzoor Ahmed appellants and to pass an order of conviction against the acquitted respondents Muhammad Iqbal, Muhammad Siddique, Alam Din, Muhammad Ramzan, Muhammad Younus and Muhammad Sadiq. As both the appeals arise out of the same case and the judgment, therefore both shall be disposed of through this single judgment. 2. The brief facts giving rise to the present appeal are that an F.I.R. Was lodged alleging that on 23- 11-1988, at about 7-30 p.m., complainant Ahmed Din alongwith his brother Muhammad Yousuf, deceased, and Muhammad Hanif his nephew were proceeding towards Barotti, on their way to a marriage ceremony when they reached near 'Nullah' of Morha Charrakee, the accused-persons Muhammad Iqbal, Muhammad Tazeem, Manzoor Hussain, Jamil, Muhammad Siddique, Muhammad Younus, Muhammad Sadiq, Alam Din and Muhammad Ramzan had waylaid appeared. As soon as they saw the complainant and his companions all accused-persons launched an attack upon them. Muhammad Iqbal, accused, caught hold of Muhammad Yousuf
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and Muhammad Tazeem, convict-respondent, inflicted an injury with hatchet on the head of Muhammad Yousuf whereas Muhammad Younus, acquitted-accused fired with .12 bore gun. Muhammad Yousuf succumbed to his injuries while on his way to Bhimber whereas Muhammad Hanif was severely injured by Manzoor Ahmed accused who had also inflicted an injury with hatchet. The occurrence was allegedly witnessed by Saraj Din, Muhammad Bashir and Mistri Hakam Ali. 3. The motive behind the occurrence has been stated to be registration of a Case No,99 of 1988 which was got registered by Iqbal accused against the complainant party on 26-8-1988 4. On this report a case under sections 307, 341, 147 and 148/149, Penal Code read with section 5/15, Islamic Penal Laws Enforcement Act, 1974, was registered by Ibrar Haider, S.-I. Police (P.W.16). 5. The accused-persons Muhammad Younus, Alam Din and Muhammad Ramzan were arrested on 24-11-1988 whereas Muhammad Jamil on 26-11-1988, Tazeem, Manzoor Ahmed, Muhammad Siddique on 27-11-1988, Muhammad Sadiq on 30-11-1988 and Muhammad Iqbal on 18-12-1988. The inquest report Exh.P.J. Was prepared by Ibrar Haider, S.-I. Police (P.W.16) on 24-11-1988. After the autopsy the blood-stained clothings of the deceased shirt P-1, Tehband P-2, Suluka P-3 and Pam P-4 were taken into possession by Ibrar Haider S.I. Police (P.W.16) vide recovery memo. Exh.P.B., attested by Ahmed Din (P.W.1) and Saraj Din (P.W.2) on 24-11-1988, the day of occurrence. On the same day the blood-stained sand and small pieces of the stones were recovered from the spot and secured vide recovery memo. Exh.P.C. In the presence of aforesaid witnesses. 6. On 26-11-1988 Muhammad Azam Patwari (P.W.9) prepared the site plan Exh.P.F. In the presence of eye-witnesses and the police. 7. On 5-12-1988 Muhammad Younus accused led to the recovery of .12 bore gun P-5 from his house, which was taken into possession vide recovery memo. Exh.P.E. Attested by Abdul (P.W.6) and Munir Ahmed (P.W.7). On the same day Manzoor Ahmed led to the recovery of hatchet P-6 from his house which was taken into possession vide recovery memo Exh.P.E witnessed by Ahmed Din (P.W.1) and Javaid Iqbal (P.W.8) (as the recovery memo. Of .12 bore gun and hatchet both have been marked as Exh. P.E., therefore, recovery memo of hatchet, recovered on the pointation of Manzoor Ahmed accused, has been marked as Exh.P.EE., during the course of judgment, which hereinafter to be referred as Exh.P.EE.). On that very day a hatchet Exh.P-7 was also recovered and taken into possession on the pointation of Muhammad Tazeem accused vide recovery Exh.P.D. From his house, attested by Ahmed Din (P.W.1) and Javaid Iqbal (P.W.8). 8. Saraj Din (P.W.2) produced a torch alongwith two cells to the police on 20-12-1988 which was recovered and taken into possession vide recovery memo. Exh.P.G., witnessed by Abdul (P.W.6) and Javaid Iqbal (P.W.8). 9. It has been reported by the Chemical Examiner vide his report Exh.P.H. That the Shirt P-1, Tehband P-2, Suluka P-3, Parna P-4, sand/sma ll pieces of stones and clay were stained with blood. 10. The autopsy of the dead body of Muhammad Yousuf deceased was performed on 24-11-1988 at 10-30 a.m. By Dr. Adil Hamid (P.W.12), Medical Officer, Civil Hospital, Bhimber. He noticed three incised injuries on the dead body of the deceased caused by sharp-edged weapon whereby injuries Nos.2 and 3 were found to be fatal to cause death of the deceased. The injuries 1, 2 and 3 are detailed as follows: "No, 1 Incised wound inguinal region at a distance of about 3" from scrotum. Size of the wound is about 1" x 1/4" with clotted blood on it. 'No,2 Incised wound in the right occipital area close to the mid-line. Size is about "3 x 1/6" + bone deep. 'No,3 Incised wound on left occipital area "2 behind injury No,2. Size of the wound is about 1/2" x 1/6" is bone deep with bleeding around it.
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11. Dr. Muhammad Yousuf (P.W.13) examined Muhammad Hanif (P.W.5) and noticed a lacerated wound "2 long on right perital bone of head close to mid-line vide Medical Examination Report Exh.P.H. According to him, the injuries were simple caused by a blunt weapon. 12. Ahmed Din (P.W.1), Saraj Din (P.W.2), Muhammad Bashir (P.W.3), Hakam Din (P.W.4) and Muhammad Hanif (P.W.5) testified at the trial as witnesses to furnish the ocular account of the prosecution case. 13. The convict-appellants and the other accused pleaded that they were innocent and falsely involved in this murder case on account of enmity. Their stance was that the deceased had many animuses and he was done to death in the dark hours of night by some unknown assailants. No evidence was produced in the defence. 14. District Criminal Court, Bhimber after the conclusion of trial convicted the appellants whereas other accused were not found guilty by it and they were extended the benefit of doubt vide its judgment, dated 29th of June, 1998. Hence these appeals, as said earlier, one filed by the appellants M. Tazeem and Manzoor Ahmed for setting aside their conviction and the other by the complainant Ahmed Din, Pervaiz. Ahmed and Mst. Rasool Bibi the heirs of the deceased for enhancement of the sentence of respondent No,1 Tazeem and respondent No,2 Manzoor Ahmed and for the conviction of respondents Nos.3 to 8. 15. Arguing the case on behalf of convict-appellants Muhammad Tazeem, Munzoor Ahmed and respondents Nos.l to 8 in the counter-appeal, it was vigorously contended by Mr. Abdul Majeed Mallick, the learned counsel that the prosecution miserably failed to prove its case. The learned counsel argued that the alleged incident took place at night in darkness in a deserted place, as such, the identification of the accused-persons was impossible. The source of identification, a torch and moon light was conjectural because it was disclosed at very late stage of the investigation. The learned counsel submitted that the alleged F.I.R. Was lodged orally at Police Station, Bhimber which was prepared after post-mortem and the complainant is not an eye- witness. The learned counsel further argued that the F.I.R. Was lodged after a considerable delay as deceased was done to death on 23-11-1988 at 7-30 p.m. Whereas F.I.R. Was lodged on 24-11-1988 at 1-00 a.m., while the distance between the place of occurrence and the police station is 14-1/2 miles. It was submitted by the learned counsel that the delay having not been explained by the prosecution reasonable inference would be that the accused were substituted and as such they were falsely implicated in the case. The learned counsel maintained that the eyewitnesses were closely related to the deceased and inimical to the accused-persons as such the witnesses being interested, their evidence was not reliable. The learned counsel contended that the attribution of fatal injury ascribed to appellant Muhammad Tazeem was not proved in evidence. The ocular version was contradicted by the medical evidence. He also argued that according to F.I.R., only two injuries were shown to be inflicted on the person of the deceased but according to postmortem report three injuries were shown to be caused upon deceased. The learned counsel also pointed out that the evidence relating to the injury of Muhammad Hanif ascribed to appellant Manzoor Ahmed was also not worthy of credence. The count of assault given in the ocular version was not corroborated by medical evidence. Duration of injury was described as 4 to 5 hours at the time of Medical Examination whereas according to the prosecution version, the occurrence had already taken place more than 7-1/2 hours earlier to the time of such examination. The learned counsel also pointed out that at the time of the postmortem no information was furnished by the police to the doctor, and relevant part of the post-mortem report is blank. Furthermore, Dr. Adil Hamid (P.W.12) testified before the Court that the police did not supply him any information. The learned counsel pressed into service the submission that the prosecution involved as much as nine accused-persons including the appellants. The acquitted appellants were ascribed the assault on the deceased and the injured witness but no specific overtact was assigned to them. The fact that
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all these accused were acquitted by the trial Court was sufficient proof in support of the acquittal of the convict-appellants. It was argued with vehemence by the learned counsel that there was no infliction of any injury by firing as alleged in the F.I.R., and in evidence of the prosecution. It was a false attribution; no empty was recovered from the alleged scene of occurrence. The gun, the weapon of offence, was not sent to Ballistic Expert for its examination. Thus, the attribution of gun firing was not proved. Therefore, it will be safe to hold that entire case of prosecution rested on concoction, fabrication and conjectural. The learned counsel argued that the recovery affected on convict-appellants was also false and concocted. According to him, no recovery was made from convict-appellants. Besides the hatchets examined by Doctor containing the description in the report, was different from the hatchets allegedly recovered by police. Furthermore, the evidence of recovery witnesses makes it more doubtful. The evidence of the prosecution according to the learned counsel, suffered from inherent material contradictions and improvements. The trial Court admitted the presence of such material contradictions but failed to take notice of the same. The trial Court has given benefit of contradictions to the prosecution instead of the defence, contrary to law. Thus, the finding of the trial Court was derogatory to the settled principles of administration of justice in criminal cases. The learned counsel submitted that trial Court did not appreciate the evidence in its true and logical perspective. The learned counsel argued that once the trial Court reached the conclusion that the eye-witnesses were not found 'Adil' in purgation it was not permissible to rely on their testimony to record conviction of the appellants and as such the accused were entitled to the benefit of doubt. Furthermore, the alleged eye-witnesses were not the witnesses of the incident and their presence was introduced to strengthen the prosecution case. There was no plausible explanation available in support of the presence of the alleged eye- witnesses on the place of occurrence, at the relevant time. It was agitated by the learned counsel that the story of the alleged motive was also inconsistent and contradictory. The learned counsel vehemently contended that Hakam Ali (P.W.4) declined to support the prosecution story. He was declared hostile and cross-examined by the prosecution but his testimony does not support the case of prosecution, The learned counsel pointed out that the deceased at the time of the alleged occurrence was marked because the column of clothing in post-mortem report and inquest report does not show the presence of any clothing upon the person of the deceased. According to the learned counsel the deceased was involved in illicit relations and was done to death by some unknown persons late at night. It was further contended by the learned counsel that the order of conviction and sentence rested on conjectural evidence as no reasons were extended in support of the conviction. Thus, the conviction was not maintainable. The learned counsel submitted that the convict-appellants remained in prison during the trial and were released on bail on the enforcement of amendment in section 497, Cr.P.C. Therefore, the appellants in the alternative were entitled to the benefit of section 382-B, Cr.P.C. Finally, he prayed that the judgment and order of conviction passed by District Criminal Court Bhimber may be set aside, the convict-appellants may be acquitted and the order of acquittal in favour of respondents Nos.3 to 8 in the counter- appeal be maintained. ' The learned counsel has referred us to the following case-law in support of his contention:--- (i) PLD 1960 SC 223. (ii) PLD 1960 Karachi 697. (iii) PLD 1963 SC 17-25-40. (iv) PLD 1976 Karachi 438. (v) PLD 1990 Sh.C. (AJ&K) 3. 16. Controverting the arguments advanced by the learned counsel for the appellants, Ch. Muhammad Afzal, the learned counsel for the complainant contended that the prosecution case stood proved against the accused-appellants and other respondents beyond any reasonable
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shadow of doubt, The learned counsel submitted that the accused-persons have been nominated in F.I.R. Which was proved by the testimony of eye-witnesses. The learned counsel vigorously contended that the motive was also alleged and proved. The learned counsel argued that the prosecution story has been proved by ocular version; therefore, corroboratory evidence is not necessary for conviction. According to him, the witnesses were not found 'Adil' in purgation but they were described as better persons. On this account the evidence of the eye-witnesses has to be appraised accordingly and when the evidence of eye-witnesses is evaluated with the help of confirmatory evidence, the offence of murder is proved and for this reason the trial Court has not awarded the sentence of 'Qisas' and the convict-appellants have been convicted and sentenced in 'Tazeer'. The learned counsel maintained that mere relationship per se is no ground for discarding the evidence of eye-witnesses and the minor discrepancies occurring in the prosecution evidence do not destroy the case of the prosecution. The learned counsel criticized the impugned judgment and pressed into service the submission that the trial Court after holding that the offence of murder was proved, erroneously awarded the lesser sentence to Manzoor Ahmed appellant instead awarding him the sentence of death which could be recorded under 'Tazeer' and is the normal punishment for the offence of murder. The learned counsel argued that the main story of the prosecution has not been challenged in cross-examination, thus, it will be treated to be proved. The learned counsel further agitated that if the motive could not be proved even though the death sentence can be awarded to an accused-person when the case of the prosecution is otherwise proved by the ocular version. It was also argued with vehemence by the learned counsel that even if the name of a P.W. Does not occur in site-plan, the testimony of such witness can be relied upon. The learned counsel submitted that the prosecution evidence could not be disbelieved in respect of acquitted respondents because all of them are saddled with the responsibility of common intention and could be held responsible for the fatal injury caused by the convict- appellant Muhammad Tazeem. The learned counsel emphasized that the case was proved against the accused persons and no plausible justification has been advanced by the trial Court for lesser penalty to Muhammad Tazeem, Muhammad Manzoor appellants and for the acquittal of the acquitted respondents in the counter-appeal. On the conclusion of the arguments, the learned counsel prayed that the death sentence may be awarded to Muhammad Tazeem, the sentence of Manzoor Ahmed be enhanced and the acquitted respondents may also be punished. ' In support of his contentions the reliance was placed on the following authorities by the learned counsel for the complainant:--- (i) 1975 PCr.LJ 1188 (ii) PLD 1978 SC (AJ&K) 96-146. (iii) PLD 1979 SC (AJ&K) 23-44. (iv) PLD 1980 SC 317. (v) 1980 PCr.LJ 749. (vi) PLD 1983 SC (AJ&K) 211. (vii) 1983 PCr.LJ 1418. (viii) NLR 1984 Criminal 578. (ix) PLD 1987 Sh.C.(AJ&K) 47. (x) 1996 PCr.LJ Sh.C.(AJ&K) 1076. (xi) 1997 PCr.LJ 1539. (xii) 1997 PCr.LJ 1522. ' An unreported case titled Mst. Iqbal Begum v. Baniya Amin Criminal Appeal No,5 of 1995, decided on 24-10-1995 by Shariat Court (AJ&K). 17. Mr. Muhammad Mushtaq Chaudhry, the learned Additional Advocate-General, appearing on behalf of the State fully supported the arguments raised by the learned counsel for the
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complainant. 18. We have carefully attended to the submissions made at the Bar in the light of the material available on the record. At the very outset, it will be relevant to resolve the point as to whether the F.I.R. Was lodged after a considerable delay which has not been satisfactorily explained by the prosecution and same has seriously prejudiced the case of the defence. It would be sufficient to point out that the occurrence took place on 23-11-1988 at about 7-30 p.m. Whereas the F.I.R. Was lodged at Police Station Bhimber, on 24-11-1988 at 1-00 a.m. The distance of police station from the place of occurrence has been described about 14-1/2 miles. Thus, according to the prosecution story, F.I.R. Was lodged after five and half hours of the occurrence by Ahmed Din (P.W.1). The alleged place of occurrence is 'Nullah' near Morah Charakie. From the evidence of Ahmed Din, complainant, it comes on the record that the deceased alongwith injured P.W. Muhammad Hanif, was carried on cots up to the road side and then after arranging transport they set off for police station but while they were on the way, the deceased succumbed to his injuries at village 'Khumb' Although the complainant has stated that after 15 to 20 minutes of the occurrence he had set off for police station and on the strength of aforesaid deposition, the learned counsel for the appellants vigorously argued that the prosecution failed to explain that how the complainant took five hours to reach to the Police Station at Bhimber. It may be stated here that a considerable time might have been consumed in obtaining the cots and arranging the transport to take away the injured persons at night from the place of occurrence a 'Nullah' towards the road side in the state of grief and mourning which resulted the murder. Ahmed Din (P.W.1) was not cross-examined by the defence on the point that how the complainant took five hods to approach the police station. Had Ahmed Din been confronted the situation he must have explained the delay in lodging the F.I.R. Therefore, the delay in lodging of F.I.R., is not fatal for the prosecution in the present case. 19. The next question which requires consideration is that as to whether the evidence of interested and inimical witnesses is worthy of credence or confidence-inspiring. The prosecution has produced five eye-witnesses in support of its case. It is adniitted on the record that Ahmed Din (P.W.1) and Saraj Din (P.W.2) are real brothers of the deceased whereas Muhammad Bashir (P.W.3) is his real first cousin. Muhammad, Hanif (P.W.5) is son of Saraj Din (P.W.2) and nephew of the deceased. Hakim Din (P.W.4) is also closely related to the complainant party. The elder brother of Hakim Din (P.W.4) is husband of the daughter of Saraj Din (P.W.2) who happens to be sister of Muhammad Hanif (P.W.5). The prosecution witnesses have also admitted that they were inimical to the accused persons even before the occurrence. The accused Muhammad Jamil had divorced the daughter of Ahmed Din (P.W.1) whereas accused Iqbal has got registered a case of theft against Saraj Din (P.W.2), Muhammad Hanif (P.W.5) and Ghulam Din father of Muhammad Bashir (P.W.3) alongwith Suleman and Muhammad Salim. It is further admitted by Ahmed Din (P.W.1) that there is litigation both of civil and. Criminal nature, going on between the complainant party and the accused persons. This position is also admitted by Saraj Din (P.W.2) who deposed that the accused were inimical with the complainant party before the alleged occurrence. In this state of affairs, when the eye-witnesses are not only inter se related but also closely related to the deceased and clearly inimical towards the accused-persons and admittedly involved in civil as well as criminal litigation, the evidence of such witnesses has to be appraised with great care and caution and this evidence must be supported by some independent corroboratory and confirmatory evidence with a view to eliminating the chances of the false implication. In this respect reliance can be placed upon a case titled Wasiullah v. Mirza Ali and others (PLD 1963 SC 25), after a thorough probe it was observed at page 28 as under:--- "In the order of this Court admitting the appeal, it was observed that the High Court judgment had dealt with the case as one resting on interested evidence, with no reliable corroboration to ensure
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against the false addition of one or more names in the list of accused persons, but the following factors had not been noticed viz.:- ' That the eye-witnesses were all natural witnesses; ' that the results produced were commensurate with the number of persons charged, viz. Six; (3) that there was visibility, and the trial Court had believed a number of the witnesses after seeing and hearing them; and (4) that the feud had been dormant for 20 years. ' The question was asked whether in view of these factors, corroboration was at all necessary. ' On further examination, it appears that the case is not free from doubts of a general character. These are caused by (1) the false inclusion of the name of Hassan Ali at the outset, and the circumstances attending its exclusion later, (2) the weakness of the evidence to show recovery of the alleged "crime empties", and (3) the dubious manner of the arrest of five of the accused persons, and of the recovery of weapons and cartridges, both live and empties from them. When such be the case, and the main direct evidence be also that of interested persons i,e,, enemies of the persons charged, it is proper to ask that the evidence in corroboration should be exceptionally strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused persons, beyond reasonable doubt." ' The same view was taken in a case reported as Thoba and another v. The State (PLD 1963 SC 40), which reads at page 44 in the following manner:--- "It is, thus, clear that the appraisement of the evidence of eyewitnesses was not based upon full consideration and evaluation of all the, circumstances appearing in the case. This was preeminently a case where, in the total absence of physical circumstances to connect the two accused persons with the crime, and there being no proximate motive for the attack, the existence of a fued-based enmity operated as strongly to explain the implication of the two accused persons, as it did to support the allegation of an unprovoked attack by them upon a feudal enemy. In that situation, ocular evidence, to carry conviction on a capital charge must come from an unimpeachable source, or if such a source be not available, it must be supported by some strong circumstance, such as might serve to overcome the inherent doubt by which such evidence is necessarily, affected." ' We are also fortified by the view taken in the case entitled Sikandar v. The State and Ranjha v. Abdul Aziz and others (PLD 1963 SC 17). ' From AJK jurisdiction in a case reported as Abdul Hakeem v. The…
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