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Petitioner: AZHAR HUSSAINT VS Respondent: THE STATE-- Murder Reference No. 606 of2005:
Court Name: Lahore High Court Judge(s): Shahid Hameed Dar, Rauf Ahmad Shaikh Title: AZHAR HUSSAINT vs THE STATE-- Murder Reference No. 606 of2005: Case No.: Criminal Appeal No. 265 of 2005 Date of Judgment:2012-04-18 Reported As: NLR 2013 Criminal 131 Result: Sentence Confirmed
JUDGMENT
JUDGMENT ' SHAHID HAMEED DAR, J.-Azhar Hussain- appellant was held guilty under section 302(b), P.P.C, for the murder of Muhammad Ashfaq, by learned Additional Sessions Judge, Gujjar Khan, District Rawalpindi vide judgment dated 26.7.2005 and sentenced to death with direction to pay a sum of Rs,22,00,000/- as compensation to the legal heirs of the deceased under section 544-A,,Cr.P.C, or in default thereof to undergo simple imprisonment for six months. His co-accused Attar Israr was, however, acquitted of the charge by the learned Trial Court on extension of benefit of doubt, whereas his co-accused, Zawar Hussain was declared as proclaimed offender. 2. The convict-appellant by filing Criminal Appeal No. 265 of 2005 has called in question his conviction and sentence under the impugned judgment, whereas, the learned Trial Court has submitted reference under section 374, Cr.P.C. (Murder Reference No. 606 of 2005) for confirmation of the sentence of death of the appellant. We propose to dispose of both the matters through this single judgment. 3. The facts, as narrated by Altaf Hussain-complainant (P.W.7) in complaint Exh.PE/1, on the basis whereof F.I.R. (Exh.PE) had been registered were that at about 7.30 p.m., on 11.3.2001, he alongwith his brother Muhammad Ashfaq (deceased) and Mohabbat Hussain (P.W.8) was present in his house; Attar Israr (since acquitted) arrived there and told Muhammad Ashfaq that he had held a dialogue with Zawar Hussain (since P.O.) and Azhar Hussain (appellant) for winning a compromise, therefore, he should accompany him to the said house, so as to seek an apology from Zawar Hussain and others, to which Muhammad Ashfaq did not agree, but Attar Israr gave an assurance that in case of any untoward happening, he would take the responsibility; oh the insistence of Attar Israr, he (complainant), alongwith his brother Muhammad Ashfaq and Mohabbat Hussain (PW-8)
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accompanied Attar Israr to the house of Azhar Hussain (appellant) and Zawar Hussain (since P.G.) and reached there at 8.30 p.m.; they sat on cots lying in a room and chatted with Mst. Azizan Bibi, widow of Mustaqeem with regard to compromise qua the murder of her husband; all of a sudden, Zawar Hussain (since P.O.) and Azhar Hussain (appellant), both armed with pistols, came there, raised a lalkara that Muhammad Ashfaq be taught a lesson for having murdered their father; both of them made straight fire-shots 'at Muhammad Ashfaq hitting his eye, head, neck and other parts of his body, which caused his instantaneous death; both the accused fled the scene of occurrence by making aerial firing. ' The motive behind the scene was that Muhammad Ashfaq had committed the murder of Mustaqeem Khan, father of the accused, for which he was convicted/sentenced and after serving out the sentence he had been released from the prison a year ago; the widow of Mustaqeem Khan and his sons had shown intentions to compound the offence with Muhammad Ashfaq (deceased); as such, Zawar Hussain (since P.O.;, Azhar Hussain (appellant) and Attar Israr (since acquitted) in furtherance of their common intention, called the complainant, Mohabbat Hussain and Muhammad Ashfaq to their house deceptively and committed intentional murder of Mui^mmad Ashfaq. Leaving the dead-body at the spot, the complainant left for the police station for reporting the crime, He, however, came across Syed Imdad Hussain, SI (P.W.16), at. Police Post Sakhu, at 9.30 p.m. On 11.3.2001, who recorded his statement (Exh.PE/1) and despatched the same to police station Mandra, district Rawalpindi for registration of formal F.I.R.; Zulfiqar Ali, SI (P.W.6) on receipt thereof drafted formal F.I.R. (Exh.PE) at 10.20 p.m. The same day. 4. Imdad Hussain, SI (P.W.16) assumed the investigation of this case, reached the place of occurrence, examined the dead-body of the deceased, prepared inquest report (Exh.PH), application for post-mortem examination thereof' (Exh.PG), appointed Muslitaq Ahmad, 3108/C (P.W.17) to escort the dead-body to the mortuary; inspected the place of occurrence, collected blood-stained earth vide .Memo. Exh.PB, secured empties, eight in number (P2/1-8), ' vide memo. Exh.PE), secured bloo'd-stained bed-sheet (Pi) vide memo. Exh.PC, and prepared visual site plan Exh.PM; Mushtaq Ahmad, constable {P.W. 17) tendered the last worn blood-stained clothes of ,the deceased (P5 to P7), a sealed phial containing bullet-head (P8), which he took into possession vide memo. Exh.PN, got prepared site plan in .Scale in duplicate Exh.PA and Exh PA/1 by Qamar-ud-Din, draftsman (P.W.4). He arrested accused Attar Israr on 25.3.2001 and after necessary interrogation sent him to judicial lock-up. ' Dur-e-Muhammad, SI (P.W.14) arrested accused Zawar Hussain (P.O.) and Azhar Hussain (appellant) on 23.2.2002 and recovered one pistol 30-bore each (P3 & P4) at their instance on 28.2.2002 vide memos, of recovery Exh.PI & Exh.PK, respectively, attested by Muhammad Hussain and Manzoor Hussain PWs (not produced). 5. At trial, prosecution in order to prove its case produced nineteen witnesses in all. The ocular account was furnished by Altaf Hussain-complainant (P.W:7), Mohabbat Hussain (P.W.8) and Zafar Iqbal (P.W.9). They (P.W.7 # P.W.8) also stated about the motive part of the incident. None of the private witnesses entered appearance to testily the recovery of the pistols at the instance of the accused, however, Dur-e-Muhammad, SI (P.W.14) deposed about the factum of recovery of pistol (P4) vide memo. Exh.PK at the instance of the appellant, which, however, is of no consequence owing to a negative report (Exh. D-2) from the office of Forensic Science Laboratory. 6. The medical evidence was presented by Dr. Mushtaq Ahmad, who was initially examined as P.W.1, when only Attar Israr faced the trial, but, oh arrest of the appellant and that of his repeatedly runaway co-accused Zawar Hussain, he was examined as P.W.10. He conducted autopsy on the dead-body of Muhammad Ashfaq (deceased), at 3.45 a.m., on 12.3.2001, vide necropsy report Exh.PF (pictorial diagram Exh.PF/1 & Exh.PF/2) and found following injuries thereon:- (1) An entry wound measuring 1 cm x .8 cm on medial aspect of right eyebrow.
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(2) An exit wound measuring 1.5 cm x 1.5 cm on back of head, lower part and midline.. (3) An entry wound measuring .5 cm x .5 cm on the left side of neck, lateral to midline. - (4) An exit wound foreign body could be felt on back of middle of chest, left side 6 cm from midline, incision given and bullet collected. (5) An entry wound measuring 1 cm x 1 cm on the left side of thigh, upper lateral with touching margin on lower aspect. (6) An exit wound measuring 1 cm x .8 cm on the upper level of left hip bone, back. (7) An entry wound measuring 1 cm x 1 cm on left thigh, lateral and lower aspect with touching margin on lower aspect. (8) An exit wound measuring 1 cm x 1.5 cm on the back and lateral aspect of left thigh, upper part. (9) An entry wound measuring 1 cm x 1 cm on the back of left elbow joint. (10) An exit wound measuring 1 cm x 1 cm and 2 pm from the entry wound and medial to the entry. (11) An entry wound measuring 1 cm x 1 cm on the upper and front left arm with fracture of humorous bone. (12) An exit wound measuring 1.5 cm x 1.5 cm on left armpit, inner and back aspect, 2 cm from armpit fold. ' The cause of death, as recorded by the medical officer was., due to the damage caused by injuries Nos. 1 & 3 to the vital organs of the deceased, which was sufficient to cause death in the ordinary course of nature and time. All the injuries were ante-mortem and caused by fire-arm. The probable time that elapsed between injuries and death was "within fifteen minutes", whereas between death and postmortem examination, it was within nine hours. ' The evidence regarding abscondence of the appellant was tendered by Muhammad Ishaque 1270/C, PW-12, Dur-e-f Muhammad, SI/I.O. PW-14 and Muhammad Ishtiaq 2808/C PW-19. Rest of the produced by the prosecution was more or less formal in nature. 7. Learned prosecutor gave-up remaining prosecution witnesses as unnecessary and tendered in evidence report of the Chemical Examiner (Exh.PP) and that of Serologist (Exh.PQ) regarding blood- stained parth, declared the prosecution case closed. 8. The appellant as well as his co-accused Attar Israr (since acquitted) and Zawar Hussain (since P.O.) recorded their statements under section 342, Cr.P.C,, entered the plea of innocence and false involvement opting not to depose within the scope of section 340(2), Cr.P.C, or adducing the defence evidence except 'for the appellant, who tendered two documents, Exh.Dl & Exh.D2 in defence. The contention adopted by the appellant in reply to the question as to why this case against him and Why the PWs had deposed against him, is reproduced hereunder:- "In fact Altaf Hussain complainant of the present "case was having an illicit liaison with Mst. Qamraz, the wife of Muhammad Ashfaq deceased, as such he (complainant) wanted to remove him from the way and he hired one Salamat Teli to get Muhammad Ashfaq murdered, who was our servant, as such the complainant got his brother Muhammad Ashfaq eliminated through Salamat ' Teli afore-named, who murdered Muhammad Ashfaq. After the occurrence said Salamat Teli was ; sent abroad by Altaf Hussain complainant in order ) to maintam. The secrecy of murder of Muhammad Ashfaq by Salamat Teli afore-named. The V complainant took along Muhammad Ashfaq to the house of Muhabat Hussain, an alleged eye-witness of the occurrence and from there he sent him to our house, where Muhammad Ashfaq was done to death by the former (Salamat Teli). The complainant and Muhabat Hussain, the alleged P.Ws, w.Ere not present at the spot and they did not witness the occurrence. It was an unwitnessed occurrence. We, have been involved in the present case, as the complainant party was having grudge/ grouse against us. I and my brother Zawar Hussain have been made a scape-goat in this case because our father was killed by Muhammad Ashfaq aforenamed and he was convicted/sentenced by the learned Court
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concerned, as such on the one hand Altaf Hussain complainant implicated us in the said false case and on' the other hand' removed Muhammad Ashfaq from his way in order to marry with Mst. Qamraz, the wife of the deceased. After the death- of Muhammad Ashfaq, Altaf HtLsajh complainant of the instant murder case contracted marriage with Mst. Qamraz afore-named. We were not present at the time of alleged occurrence at the spot and the complainant of the present case Altaf Hussain involved us with his mala fides, although we are absolutely innocent and the prosecution story as alleged in the F.I.R.-is nothing but mere a concoction and the same is not at all based on any sort of reality." 9. The learned Additional Sessions Judge on culmination of the trial proceeded to convict/sentence the appellant as mentioned hereinabove, besides declaring Zawar Hussain accused a P.O. As he, slipped away, at the stage of final arguments. He, however was arrested on 18.12.2008 and convigted/sentenced in identical terms, like the appellant was meted out, vide judgment dated 29.10.2009 against which he filed an appeal (Crl.A. No, 415/2009) which has been decided/dismissed by this Court, "through ail independent judgment of even date. 10. We have heard learned counsel for the parties and perused the record with their able assistance. 11. Learned counsel for the appellant has contended that by putting the defence version in juxtaposition to the prosecution story, the truthfulness of the defence version would be evident from the fact that Attar Israr, a figure in the prosecution case and main persuader to have taken the deceased with him to the house of the appellant, stood acquitted of the charge; the empties recovered from the spot had not been found matched with the pistol recovered from the appellant, as is evident from the Forensic Science Laboratory's" report Exh.D2; the witnesses of ocular account are not only related inter-se and with the deceased but they are biased towards the appellant, therefore, their evidence requires, strong corroboration; the presence of PW-7, PW-8 and PW-9 at the spot at the relevant time of occurrence was highly doubtful as the purpose shown by them for their presence at the spot flid -not appeal to common sense, rather the acquittal of Attar Israr .Accused negates the very purpose of their presence at the spot, at the crucial hour; the abscondence of the appellant has no value in the eyes of law as the eye-witness account is not believable; the procedure adopted by the Trial Court for declaring the appellant an absconder was illegal 'thus, insufficient to label the appellant a fugitive from law; the incident had not been witnessed by the PWs, therefore, the appellant is entitled to clean acquittal; the appellant was found not involved in the occurrence during the course of investigation, as is evident from the statement of Inspector Kareem Nawaz Khan (DW-1); the witnesses of ocular account made dishonest improvements in their testimonies which had caused collapse of the prosecution case in entirety but Trial Court failed to deal with the aforesaid situation in a lawful manner; incomplete statement of PW Mohabbat Hussain a witness of ocular account could not be read in evidence which has been unlawfully relied upon by the Trial Court in sheer disregard to the principles, settled by law; all the doubts and lacunae in the prosecution case, unlike the settled principles of law have been resolved in favour of the prosecution; no other conclusion than the acquittal of the appellant, was. Possible from the evidence, adduced by the prosecution at trial but against all estimations and probabilities, learned Trial Court passed the impugned judgment which is patently illegal and calls for interference by this Court. Alternatively submits that the case of the appellant hints at more than'one mitigating factor which call for a reduction in the quantum of sentence of the appellant. Relies upon cases titled: Riaz Ahmad alias Rajoo and another v. The State (PLD 1970 Lahore 689), Tikka Khan and 3 others v. The State (PLD 1974 Lahore I0O), Akhtar Ali and others v. The State (2008 SCMR 6), Habibullah and others v. The State (PLD 1969 SC 127), Ali Bahadur and 2 others v. The State (1998 P.Cr.LJ. 2A), Muhammad Yameen alias Raja v. The State and others (2009 SCMR 84), Ali Ahmad and 2 others v. The State (1978 SCMR 384), Muhammad Farooq and another v. The
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State (2006 SCMR 1707), Naik Muhammad alias Naika and another v. The State (2007 SCMR 1639), Mst. Sabeeha v. Ibrar and others (2012 'SCMR 74), Shoukat Rehman alias J email v. Rahim Noor and another (2002 PCrLj 1946), Rohtas Khan v. The State (2010 SCMR, 566) and Muhammad Arshad and others v. The State and'others (PLD 2011 SC 350). 12. Conversely, learned State Counsel assisted by learned counsel for the complainant has supported the impugned judgment by arguing that the ocular account is trustworthy which has been rendered by natural witnesses; the, evidence of the witnesses is directly corroborated by the .Medical evidence coupled with the evidence of abscondence of the appellant; the active participation of the appellant along- with his run away partner stood established through the evidence Of unimpeachable character and it is a case wherein there does not exist any mitigation in favour of the appellant. Places reliance on the cases titled: Ali Khan v. The State (PLJ 1980 SC 313), Muhammad Iqbal alias Javed Iqbal v. The State (PLD 1976 SC 291), Noor Muhammad v. The State (PLD 1991 SC 150), Muhammad Sharif and another v. The State (PLD 2001 SC 94), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758). 13. After hearing the arguments of learned counsel for the appellant and also for the State and learned counsel for the complainant and taking into consideration the evidence available oh record with their able assistance, it is observed that the prosecution case is plain and simple which takes a start from, the point, when Attar Israr (since acquitted) persuaded Muhammad Ashfaq (deceased), Altaf Hussain complainant PW-7 and Mohabb&t Hussain PW-8 to pay a visit to the house of Azhar Hussain appellant for striking compromise with him, qua the murder of his father Mustaqeem Khan, for which Muhammad Ashfaq (deceased) had been found guilty and awarded sentence by the Trial Court. Though he after having served the total sentence had returned to the* village, a year back, yet element of enmity could not be presumed to have gone extinguished. It has been vociferously argued by the learned counsel for the appellant that the very basis of the prosecution case, relating to the factum of paying a visit to the house of the appellant by Muhammad Ashfaq (deceased) in search of compromise qua the previous murder case had gone dismantled owing to the acquittal of. Attgir Israr through the impugned judgment. The learned Trial Court while acquitting Attar Israr has nowhere observed in the impugned judgment that had not gone to the place of occurrence on the fateful day or that he had not been instrumental in leading Muhammad Ashfaq deceased and the eye-witnesses to the place of occurrence, ratlysr the main reason, in recording acquittal of Attar Israr was that no evidence had been produced by the prosecution to show that he was possessed with a criminal intent to have led the deceased party to the house of the appellant for some mischievous purpose. The learned Trial Court in this regard was of the view that he too might have been taken by surprise when situation, at the house of the appellant, erupted into a shootout by the appellant and his co-accused at the deceased. The acquittal of Attar Israr does not dent the prosecution ease in any manner nor does it give rise to a conclusion that the deceased had gone to the house of the appellant for some other purpose than in quest of a compromise, qua the murder of the father of the appellant. There are a couple of factors which stand admitted on both the sides and there we find no cleavage in respect thereto, for instance, the date, time, the place of occurrence and the motive appear to be the common factors. 14. Insofar as the raison detre in the instant case is concerned it relates to the murder of Mustaqeem Khan, the father of the appellant as well as that of his absconding co- accused which had been committed by Muhammad Ashfaq deceased who was charged for the said murder and after a full- fledged trial he was convicted and sentenced therein. His return to the same village where the accused/appellant also lived, after serving out the entire sentence was a perennial danger for both the sides which could ignite another bloody encounter between them. At no stage of the trial, the prosecution or the defence disputed each other on the point of motive as an un-
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rebuttable circumstance existed to believe that the motive set up by the prosecution was a proven fact. 21.11.2002 Insofar as the ocular account furnished by the prosecution is concerned, it- has been rendered by three witnesses, two cited in the FIR and one namely Zafar Iqbal (PW-9), appearing at the investigation stage and then joining the prosecution-fold to render his testimony before the Trial Court. Learned counsel for the appellant took many hours to argue a 'controversial' point, touching the testimony of Mohabtfet Hussain PW-8. He was an unfortunate soul. He died due to ailment when his examination had been "partly" recorded and that too, at a stage, when his disease was transmitting alarming signals about the mortality, fast approaching him. There is an irresistible aspect of the evidence of Mohabbat Hussain.PW-8 which reflects on the trial- conducting qualities of the learned A.Ddl. Sessions Judge, seized with the trial of the accused as, he did not show the required degree of sense, courage and confidence, while granting countless and on most of the occasions uncalled for adjournments to the defence. The learned Trial Court behaved so badly while repeatedly acceding to the requests of the defence for seeking adjournments, 36 in number only in respect of the witnesses of ocular-account, that it, at the best, can be termed as distressing and disgusting. On a couple of occasions i.e, on 21.6.2003 and 17.4.2004 Mohabbat Hussain (PW-8) appeared, at trial in a miserable state of health and Trial Court despite noticing that his condition was serious, wilted under the pressure of the defence and injudiciously adjourned the proceedings, in a mindless manner, despite a vocal protest by the other side. Unending chain of adjournments finally resulted into the death of the enervating witness on 24.07.2004, but earlier to it, for almost every bit of his examination-in-chief, he had been grilled by the defence. It appears from the record that with a little bit show of common sense and mental- agility, the testimony of PW-8 should have been 'completed' as there existed no viable reason to adjourn the proceedings gratuitously. The adjournments sought for by the defence on many occasions, when complete set of eyewitnesses including Mohabbat Hussain (PW-8), was present before the Trial Court, looked certainly a part of their clever campaign not to let Mohabbat Hussain (PW-8) be examined and on the other hand, the prosecution asserted vociferously, almost on each date of hearing, for his immediate examination, keeping in view, his ever worsening disease. There cannot be two opinions about it that an examination-in-chief of a witness, not followed by cross- examination, for any reason, cannot be considered an admissible piece of evidence and incomplete statement of spelt a witness cannot be given any weight but in the instant case, the situation is hugely different as examination-in-chief of the deceased-PW had been recorded on and he stood examined almost in complete terms by the defence, in two years time, before he died on 24.7.2004. It appears from the proceedings, recorded by the- Trial .Court for the said day that there was every probability that the statement of PW-8 could have been completed who, despite being in a delicate condition, had taken rigors to appear before the Trial Court to render (tis evidence. Even if it is believed that the proceedings had been adjourned by the Trial Court on 17.4.2004 at the request of learned defence counsel for 'remaining cross-examination' on the said P-W, it cannot be said, that the evidence rendered by him was a. Thrown-away material, or that it could not be taken into consideration. As discussed above, the defence sought 36 adjournments spanning over a period of about two years (from to 24.7.2004) which shows a poor state of affairs and non-serious attitude of the Trial Court. The PW in question himself and his counsel had been constantly raising voice and concerns about the ever deteriorating condition of the incumbent prosecution witness, who, despite, the death gazing into his eyes bravely faced the situation and did not lose the heart at any stage and made sure that his statement was recorded by the Trial Court. Almost 95% of the adjournments, as noted above had been granted by the Trial Court, when there was hardly any occasion for it to do so. The defence cannot raise the plea at this stage nor
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the case-law, relied upon' by it, give any strength to their version that the statement of PW-8 should be rejected because of 'completion' of the cross-examination by the defence. I6. The examination-in-chief of PW-8'was recorded on which was partly cross-examined by the defence on 28.2.2004 and even on that day, learned Trial Court was constrained to observe that he "appeared in a very precarious condition being sick and with the consent of learned counsel for the defence he has been provided chair when he made statement in the Court". Mohabbat Hussain PW--8 despite frailty of health was determined to get his statement completed on 28.2.2004 which could not be done, again due to the noncooperation of the defence. He for the last time in h'% life, appeared before the Trial Court on 17.4.2004 and faced :ross- examination confidently and his statement, from all angles, appeared to have been completed, when learned Trial Court again showed an unenviable weakness by adjourning the proceedings at the request of the leaned defence counsel who, due to the 'death' of his friend's wife refused to continue doing his duty. The request for adjournment, on the said day, \Vas, however, vociferously opposed by the learned counsel for the complainant but to no avail. Would that, it…
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