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Petitioner: JAHANGIR HAYAT VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Iftikhar Hussain Chaudhry, Ghulam Sarwar Sheikh Title: JAHANGIR HAYAT vs THE STATE Case No.: Criminal Appeal No,180 and Murder Reference No,85 of 1993 Date of Judgment:1998-12-02 Reported As: PLD 1999 Lahore 285 Result: Appeal allowed
JUDGMENT
JUDGMENT ' IFTIKHAR HUSSAIN CHAUDHRY, J.--Jahangir son of Muhammad Hayat was convicted by Additional Sessions Judge Bhalwal, Sargodha for offence under section 302(b) Pakistan Penal Code for Qatl- e-Amd of Parvez Akhtar having been committed on 20-9-1992 in village Dodha, Police Station Laksin Sargodha and was sentenced to death by judgment dated 10-3-1991 The convict was also directed to pay a sum of Rupees 20,000 as compensation to legal heirs of the deceased and the same was to be recovered as arrears of land revenue. 2. Criminal case F.I.R. No,72 of 20-9-1992--Exh.PE, was registered at Police Station Laksin, District Sargodha on the report of Umer Hayat son of Muhammad Khan, P.W.8 and was in the following terms: "I am resident of village Dodha. Today at about 7-00 a.m. I, along with Mst. Fatima, my sister-in-law, Parvez Akhtar son of Muhammad Amir nephew, and Raja son of Sahba caste Marth left the house on foot for the main road in order to proceed to village Ahmadewala to offer 'Fateh' for Mst. Ajjaan widow of Ahmad caste Bhekaha resident of Ahmadewala. At 7-30 a.m. When passing by the Bajra (Millet) crop belonging to Muhammad Hayat Gondal co-villager, at which time Parvez Akhtar was walking ahead of his mother, Raja and myself by 15/16 'karams', all of a sudden Jahangir son of Muhammad Hayat, co-villager armed with a .12 bore shotgun emerged from the 'Bajra' crop and came in their front on road. He shouted that he would not leave Parvez Akhtar alive and fired at him with shotgun which shot hit Parvez Akhtar on right shoulder, inner side near the armpit. Second shot hit the aforementioned on front chest. Parvez Akhtar fell down from the road on its western side. Then Jahangir Hayat accused fired third shot at him from a close range, which hit him behind left ear. Mst. Fatima, screaming, took her son in her arms. I and my companion Raja raised alarm.
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Jahangir decamped from the spot towards west by brandishing his gun and saying that he had avenged his insult and disgrace by murdering Parvez Akhtar. Parvez Akhtar had died at the spot. Motive for the incident was that Zafat Iqbal elder brother of Parvez Akhtar had divorced real aunt of Jahangir, accused, Mst. Razia daughter of Mahla caste Gondal 6/7 years back and had contracted second marriage. Yesterday, on 19-9-1992, at about 5/6 p.m. At the partition of common 'Dara' a quarrel had taken place in presence of Nasir son of Mohabbati and Muhammad Nawaz son of Rahman caste Marth and Parvez Akhtar had given a taunt to Jahangir Akhtar that his elder brother had divorced his aunt and that as to what had been done about that by them till then. At which Jahangir, accused had told Parvez Akhtar that he would avenge that too. As such, Jahangir had intentionally shot to death Parvez Akhter due to previous enmity and recent taunt. Leaving Mst. Fatima and Raja to keep guard over the dead body, I have come to police station. Action be taken." 3. Shafqatullah Niazi, Inspector/Station House Officer, Police Station Laksin, Sargodha recorded the statement of Umer Hayat, first informant in above terms and registered F.I.R. Exh.PE. He went to the spot, prepared injury statement and inquest report Exh.PK and Exh.PL, handed over the dead body to Nazir Ahmad F.C. For taking it to mortuary. He inspected the spot, secured blood-stained earth vide memo. Exh.PI, Articles P.4 to P.8 (purse, ring, etc.) were secured vide memo. Exh.PG. He also collected two spent cartridges P.9 and P.10 from the spot and prepared parcel vide memo. Exh.PH. He recorded the statements of witnesses under section 161, Cr.P.C. Last worn clothes of the deceased P.1 and P.2 and phial containing pellets were taken into possession by the Investigating Officer vide Memo. Exh.PB. The Investigating Officer arrested Jahangir accused on 28-9-1992 while he was present at bridge of Ahmadewala Minor and recovered shotgun P.3 at his disclosure from an earthen bin lying in the cattle shed. The Investigating Officer got prepared site plans Exhs.PC and PC/1 from Patwari and challaned the accused to Court. 4. The prosecution examined 10 witnesses to prove its case against the accused. 5. Dr. Qalb-e-Hussain P.W.1 was posted as Medical Officer at Rural Health Centre, Midh Ranjha and'dead body was brought to him at 3-00 p.Th. For post-mortem examination. He found the dead body to be of a young man of about 20 years. Rigor mortis was fully developed and post-mortem staining had developed on dependent parts. He noted the following injuries on the dead body:-- (1) A fire-arm wound 4 c.m. x 3 c.m. With inverted margins. Blackening and tattooing around the margins on front middle of chest just below the line between the nipple. It was wound of entry. .(2) A fire-arm wound of entry 4 c.m. x 4 c.m. On the left and lower aspect of the head just behind the left ear. The edges of the wound were inverted. Blackening, burning and tattooing around the wound of entry. (3) A fire-arm wound of Exit 1 c.m. x 1 c.m. On the outer right chest 4 c.m. Above and outer to right nipple. Edges were everted. (4) A fire-arm wound of Exit 1 c.m. x 1 c.m. 4 c.m. Below injury No,3 Edges were everted. (5) A fire-arm wound of Exit 2 c.m. x 2 c.m. Just outer to injury No,4. (6) A fire-arm wound of exit 1 c.m. x 1/2 c.m. 4 c.m. Upper and outer to injury No,3. (7) A firearm wound 2 c.m. x 1 c.m. On the inner and upper aspect of right upper arm continued from chest injury. It may be the wound of entry by a pellet coming to chest that of injury No,1. ' Injury No,1 was going deep into the chest cavity, tearing sternum, mediastinum, puncturing and lacerating pleura of right lung, fracturing 4th, 5th, 6th and 7th ribs making wounds of exit on the right side of the chest. One plastic cover and two pellets were found from the wound of chest cavity and one pellet from injury No,7. Injury No,2 had gone into skull causing fracture of base of skull. One plastic cover and two pellets were recovered from the skull cavity. The probable time between death and post-mortem examination was given as 8-12 hours. Exh.PA and Exh.PA/1, Exh.PA/2 copies of the post-mortem examination report.
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' In cross examination, the Medical Officer admitted that the duration between death and post- mortem examination could be more to 14 hours. ' The bladder was full of urine and the stomach empty and the Medical Officer admitted that such a condition was normally found in a person at the end of night i,e, before sunrise. He also opined that such a condition could be found even at about midnight. The witness also said that the injuries Nos. 1 and 2 were caused within inches of the barrel of gun. 6. Nazir Ahmad C. No,316, P.W.2, had escorted the dead body to mortuary, had handed over last worn clothes of the deceased to Investigating Officer and transmitted sealed parcel of spent cartridges on 29-9-1992 to the Fire-arms Expert. Muhammad Akbar C.No,592, P.W.3, had taken gun to the Fire-arm Expert on 30-9-1992. Muhammad Usman H.C.No,900, appeared as P.W.4. Abdul Ghafoor, Patwari appeared as P.W.S. He had prepared site plans Exh.PC and Exh.PC/1. He stated, in cross-examination, that Lahore-Sargodha Road might be at a distance of one square from the spot while the village Dodha might be at a distance of one K.M. From there. Muhammad Amir father of deceased appeared as P.W.6. He had identified the dead body in the mortuary and the accused was arrested at his pointation from bridge of a minor canal. He also witnessed the recovery of shotgun P.3. He admitted in cross-examination that the accused had four brothers and two sisters alive. He stated that he did not know that mother of accused gave birth to two sons after the birth of his brother Shahbaz and before the birth of Jahangir who died. 7. Nasir son of Mohabbati testified about the motive incident. According to him he along with Umer Hayat, Nawaz and Parvez Akhtar was present at their 'dera' at 'deegarwela' when Jahangir came there and his arrival was objected to by Parvez at which Jahangir stated that the 'Dera' should be partitioned. Parvez refused the partition and said 5/6 years back his brother--Zafar Iqbal had divorced the paternal aunt of the accused who has not been able to do anything about it and what would he do about the partition. Umar Hayat intervened that the elders would settle the issue Jahangir, thereafter left. In cross-examination the witness admitted that he lived at a 'dera' in his land which was about 5 killas' away from the 'Dera'. Nawaz P.W. (not produced) was resident of a village 4 miles away. He admitted that he had not stated before the police the reason for his presence and that of Nawaz at the 'Dara'. He admitted that the Dera was joint between the parties and that he did not know of any reason till that day as to why Parvez had objected to arrival of Jahangir at the 'Dera'. The witness had shifted his stand from the earlier one taken by him and was confronted on as many as 7 occasions with his earlier statement. 8. Umar Hayat complainant, appeared as P.W.B. He testified about the manner in which occurrence had taken place. He, however, changed his version qua the motive incident and testified in terms Nasir had. He also changed the version qua the purpose of their sojourn. In cross-examination, the witness admitted that 'Dera' was built by Murad, his grandfather and that the progeny of said Murad owned the place jointly and all had been using the premises without any objection from either side. He admitted that till the day of occurrence no dispute took place between the parties regarding use of the property. He also admitted that Mst. Razia was remarried and had children as well and also admitted that no dispute ever took place between the parties over the matter of divorce of Mst. Razia. He admitted that he and other brothers had partitioned the ancestral property and that his and that of his brother Ahmad's lands were located near Ahmadewala Minor and that a 'Dera' was also constructed there. He, however, denied the suggestion that he lived at that 'Dera'. He furtkr admitted that he was not related to Mst. Ajjaan and had gone for 'fateha khawani' earlier. He admitted that he had not stated in F.I.R. That they were going for 'Saatwan'. He admitted that the deceased was student of a college located in Chak No,88-SB and attended the college regularly. He admitted that father of deceased was present in the village and that there was no special reason for going of the deceased for Saatwan of Mst. Ajjaan, instead of his father.
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9. Raja son of Sahiba P.W.9 was the other witness of occurrence. He admitted that his mother Mst. Jallan and Muhammad--father of Mst. Fatima--mother of deceased) were daughter and son of Mst. Bhari. He admitted that Mst. Ajjaan was not related to him and that he had gone for 'fateha' on the day of her death, earlier. 10. Shafqatullah Niazi, Inspector/S.H.O. Appeared as P.W.10. He testified about various steps taken by him during investigation. '11. Mst. Fatima, Muhammad Nawaz, Muhammad Amir Marth, and Amir Machhi P.Ws. Were given up as being unnecessary. Report of Chemical Examiner Exh.PM, of Serologist Exh.PN and that of fire- arms expert Exh.PO were tendered in evidence by the prosecution. 12. The accused in his examination under section 342, Cr.P.C. Denied all the allegations levelled against him by prosecution. He claimed that he was aged 16 years and tendered in evidence. Higher Secondary School leaving certificate Exh. DB and Secondary School Certificate--Exh.DC which gave his date of birth as 24-1-1977. 13. Learned Trial Court believed the prosecution case and convicted and sentenced the accused as noted above. The convict submitted Criminal Appeal No,180 of 1993. The complainant filed Criminal Revision No,213 of .1993. Matter has been referred by the learned Trial Court vide Murder Reference No,85 of 1993 for confirmation of sentence of death imposed on the convict. Learned counsel for the parties have been heard today and record examined. 14. Learned counsel for the appellant contended that the motive alleged was so trite and banal as would not impress anybody--neither the common 'Dera' was being partitioned nor any occasion had arisen for that and there was, thus, no question of eruption of any dispute and matter of divorce of Mst. Razia was too remote to have triggered the incident particularly when no disputes ever took place between the parties over these issues. It was argued that going to another village for offering 'fateha' or condolence that early in morning with empty stomach where the event involved no urgency, was absurd and this was coined only to show presence of witnesses at the spot. It was submitted that witnesses were chance witnesses and the medical evidence belied the ocular account qua time of death and the manner in which the occurrence had taken place. It was submitted that prosecution failed to make out any case against the appellant. Referring to age, it was submitted as an alternative plea, that sentence awarded was unwarranted. Learned counsel for the State argued that the case against the appellant stood proved and that he was rightly convicted. Learned counsel for the complainant argued that the parties were closely related and there was no probability of false implication of the sole accused in the case. It was submitted that the prosecution case stood fully established by the evidence of motive, the direct evidence, the medical evidence and the evidence of recoveries. It was submitted that going to offer condolence early in the morning was not unusual in any respect and the stand of witnesses in this regard was quite plausible. It was also submitted that the accused was not minor and did not deserve any leniency in the matter of sentence. 15. The Courts in our country follow a multi-factor, non-exclusive weighing approach to assess the value and sufficiency of evidence qua the involvement, criminality and liability of the accused in a criminal case. The constituent factors of evidence are numerous and may vary according to the nature of accusation or substantive offence for which the accused is put to trial. The motive or reason for the commission of offence, the eye-witness account, circumstantial evidence, the physical evidence, the expert evidence and other corroborative, supportive or explanatory evidence, are the most common constituent factors of a criminal case relating particularly to homicide: The evidence led in defence, of course, is one of the constituent factors also. Where the prosecution claims the incident to be result of a particular motive, it has to prove that particular triggering event or initiating circumstance due to which the occurrence had taken place. Where the incident is claimed to be a witnessed one, credible direct evidence or eye-witness account
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from the mouth of naturally present witnesses has to be led at trial. Where circumstantial or physical evidence is to be the mainstay of the prosecution case same has to be tangible. Expert evidence and other explanatory evidence should fully support the other evidence. In brief, all the constituent factors must be shown to be in tandem, supplementing and supporting other factors in order to record a conviction. But where one or more of the factors are found to be out of step with rest of the evidence the prosecution case is bound to be affected. The consequences would, however, depend upon the particular defective or lope sided factor. For example, failure to prove the motive would not affect the conviction but should impinge on the quantum of punishment. But there are certain factors which if excluded from consideration would bring the prosecution case to its knees. If the prosecution bases its case out direct evidence or circumstantial and physical evidence, that evidence has to be weighty and credible enough to prove the case. The expert, or other confirmatory, explanatory or investigatory evidence must be supportive of the direct or circumstantial evidence. Absence of probative, tangible, independent or reliable evidence in this regard cannot provide a basis for conviction of an accused. No single factor to the exclusion of other factors of prosecution's evidence, in such a case, however mighty it might be, can suffice to record or sustain a conviction in a criminal case particularly in a case involving harsh punishment. This multi-factor weighing approach is the legal standard employed in assessing the evidence or pressing the same into service for fixing or determining the criminal liability of an accused. The tragedy and stakes involved in the case in hand requires our prudential judgment and for that we have meticulously examined each aspect of the evidence. 16. Motive for the incident according to first recorded version of the case F.I.R. Was stated to be that real paternal aunt of Jahangir--Mst. Razia daughter of Haji Mahla was divorced 6/7 years back by Zafar Iqbal brother of Parvez, deceased, and had remarried. On 19-9-1992 at 5/6 p.m. a quarrel took place at the partition of joint "dera" in the presence of Nasir son of eye-witness account from the mouth of naturally present witnesses has to be led at trial. Where circumstantial or physical evidence is to be mainstay of the prosecution case same has to be tangible. Expert evidence and other explanatory evidence should fully support the other evidence. In brief, all the constituent factors must be shown to be in tandem, supplementing and supporting other factors in order to record a conviction. But where one or more of the factors are found to be out of step with rest of the evidence the prosecution case is bound to be affected. The consequences would, however, depend upon the particular defective or lope sided factor. For example, failure to prove the motive would not effect the conviction but should impinge on the quantum of punishment. But there are certain factors which if excluded from consideration would bring the prosecution case to its knees. If the prosecution basis its case on direct evidence or circumstantial and physical evidence, that evidence has to be weighty and credible enough to prove the case. The expert, or other confirmatory, explanatory or investigatory evidence must be supportive of the direct or circumstantial evidence. Absence of probative, tangible, independent or reliable evidence in this regard cannot provide a basis for conviction of an accused. No single factor to the exclusion of other factors of prosecution's evidence, in such a case, however mighty it might be, can suffice to record or sustain a conviction in a criminal case particularly in a case involving harsh punishment. This multi-factor weighing approach is the legal standard employed in assessing the evidence or pressing the same into service for fixing or determining the criminal liability of an accused. The tragedy and stakes involved in the case in hand requires our prudential judgment and for that we have meticulously examined each aspect of the evidence. 16-A. Motive for the incident according to first recorded version of the case F.I.R. Was stated to be that real paternal aunt of Jahangir--Mst Razia daughter of Haji Mahla was divorced 6/7 years back by Zafar Iqbal brother of Parvez, deceased, and had remarried. On 19-9-1992 at 5/6 p.m. a quarrel took place at the partition of joint "dera" in the presence of Nasir son of Mohabbati and Muhammad
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Nawaz son of Rahmaan, caste Marth and during that Jahangir was given a taunt by Parvez Akhtar that his elder brother had divorced aunt of the accused and that as to what was done about that by them and Jahangir had remarked that he would avenge that, too. Occurrence according to prosecution was outcome of previous enmity and recent giving of taunt. "Dera" is a common hold, a place of assembly, meeting place or even a guesthouse owned jointly by villagers or by a particular clan. In this case the 'dera' was jointly owned by progeny of Murad and at the time of occurrence, apparently, father of the accused and his two brothers and father of the deceased and his three brothers were the joint owners and the place was not under exclusive use or possession of any particular person but all the co-owners used the premises without any let or hindrance from any side till the day of occurrence. Similarly, the matter of divorce of Mst. Razia had become history and her father Haji Mahla and brothers of Mst. Razia namely father and uncles of accused or his elder brothers or cousins never took up cudgels for that trivial affair. Both Zafar Iqbal and Mst. Razia had started and settled into new lives. No untoward incident ever took place between the parties till the day of occurrence as has been testified by Umar Hayat-complainant, P.W.8. The parties had been living amicably or at least without any show of hostility till the time of incident. In these circumstances there was no occasion or need for partitioning of "Dera" nor such an exercise took place a day prior to the occurrence as was claimed. The prosecution abandoned its stand, which was manifested by the first information report, during trial and introduced altogether different version. Nasir, P.W.7, who was son of a first cousin of Mst. Fatima--mother of deceased, and Umer Hayat P.W.8 testified that they were sitting at the 'Dera' when Jahangir arrived there. His visit to the place was objected to by Parvez at which the accused said that the "Dera" should be partitioned where after the deceased flung a taunt in the face of accused about their failure to do anything about the divorce of Mst. Razia. The accused left the Dera. Nasir P.W.7 admitted in cross-examination that till the day he appeared in trial Court, he was not aware of the reason as to why Parvez had objected to visit of accused to the Dera. When there was no dispute or bickering between the parties over the use of Dera or over the divorce matter, the partition of the premises was not in the offing, none of the relevant co-sharers was engaged in the exercise in that regard, the story in respect of partition or demand of partition of joint premises obviously loses all colour. It was never shown by the prosecution as to why Parvez disliked visit of Jahangir to Dera or that they were not on good terms due to any juvenile activity or college-related rivalry for which Parvez acted in the manner he did. Silence of prosecution in this respect is deafening. Nasir, P.W. By all contents and measures, was a chance witness. The time at which motive occurrence statingly took place was not such as the villagers would assemble there to while away idle hours: they would be supposed to be tending to their household and agricultural chores at that time. Umer Hayat according to narrative contained in F.I.R. Was not present at that time. The effect of the testimony of the witnesses was further diluted by the numerous confrontations with their earlier statements. That being the state of prosecution evidence qua the motive incident, it would be difficult to accept the claim of prosecution about the incident of motive. The same appears to be figment of imagination of a fertile mind. 17. The deceased had 7 injuries on the body. Injury No,1 was an entry wound while injuries Nos.3, 4, 5, 6 and 7 were caused by exit of pellets. The injury No,2 was caused by a second shot. Dimensions of injury No,1 (4 c.m. x 3 c.m.) shows it to be an oval wound. Size of the aperture, blackening and tatooing around the edges of the wound would show that the gun was discharged from a very close range. A part of the charge had exited from right upper part of chest near axilla. This would mean that the deceased was fired at by an assailant who was standing towards extreme left of the deceased at a lower level (in case the victim was standing at the time). Injury No,2 was likewise caused from a very close range by an assailant who stood at higher level. It would be wrong to speculate as to what were the respective positions of the parties at the time of shooting or as to
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which shot was fired first but the locale of injuries and the range from which the shots were fired can lead to just inference that the deceased was taken unawares at the time of assault--the assailant crept up to him surreptitiously and then fired at him. A fully conscious living young man would not have allowed an opportunity to an assailant to walk up to him and to have allowed him to put barrel of gun to his body. The medical evidence unmistakably shows that the deceased was fired at only twice and not thrice, the victim was not fired at from a distance of 3 or 3-1/2 karams and all this would go…
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