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Petitioner: Raja MUHAMMAD ASGHAR and anothers VS Respondent: THE STATE and anothers
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Iftikhar Hussain Butt Title: Raja MUHAMMAD ASGHAR and anothers vs THE STATE and anothers Case No.: Criminal Appeal No,107 and Reference No,108 of 2005 Date of Judgment:2006-03-31 Reported As: 2006 YLR 1599 Result: Appeal accepted
JUDGMENT
JUDGMENT ' IFTIKHAR HUSSAIN BUTT, J.---This appeal has been directed against the judgment/order of District Criminal Court, Bhimlier dated 27-9-2005, whereby the appellant was convicted and sentenced to death as "Qisas" under section 302, A.P.C. ' Brief facts forming the background of the above titled appeal and reference are that an F.I.R. No,78 of 2004 was registered on 5-9-2004 at 8-45 P.M. At Police Station, Choki, District Bhimber on the basis of the statement of Arshad Mahmood, complainant, recorded at his residence. The complainant alleged that he belongs to village Kalri. On 4-9-2004 his son Yasir along with his wife and mother went to village Sona Samahni to attend the marriage ceremony of Raja Babar. On the midnight of 4/5 September, 2004, some participants of marriage ceremony started aerial firing. One shot accidentally hit on left side of the face of his son Yasir and exited from backside of his head, which resulted spontaneous death of his son. He has no animus to anyone; therefore, he is filing a cursory report. He further contended that the proceedings may be kept in abeyance until he nominates the accused- persons. The occurrence was witnessed by the participants of the marriage ceremony. The F.I.R. Has been delayed because he remained busy in funeral ceremony of his son. ' The aforementioned statement of Arshad Mahmood (P.W.1) was recorded by Sohail Yousaf S.- I./S.H.O. (P.W.23) and a case Exh.P.L. Was registered under section 319, A.P.C. By Muhammad Aziz, Head Constable, Police (P.W.21). On the same day Sohail Yousaf, S.-I. (P.W.23) went on the spot and prepared inquest report Exh . P. M. ' On 7-9-2004, said Sohail Yousaf, S.-I., Police got prepared site plan Exh.P.E. From Jabbar Ahmad, Patwari (P.W.16).
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' On 144-2004, he recovered a video film Exh.A-1 from Raja Naveed (P.W.6) in the presence of Abdul Rehman (P.W.4) and Abdul Ghaffar (P. W .5). ' On 22-9-2004, said Sohail Yousaf, S.-I., Police wrote a letter Exh.P.P. To legal branch for its opinion. ' On 28-9-2004, he took into possession 10 empties of Kalashnikov produced by Babar Khan (P.W.7) vide recovery Memo. Exh.P.C. Attested by above mentioned Abdul Rehman and Abdul Ghaffar, P. Ws. ' On 5-10-2004, said Sohail Yousaf, S.-I./S.H.O., took into possession a shirt of the deceased produced by Muhammad Kamal (P.W.8) vide recovery Memo. Exh.P.D. In the presence of Jahangir Ahmad, (P.W.11) and Muhammad Yaseen (P.W.12). ' On 12-10-2004, the post-mortem of the deceased was performed by Medical Board consisting of Dr. Tariq Mahmood Khan (P.W.18), Dr. Naseer Ahmad Shaikh (P.W.19) and Dr. Rashid Mahmood (P. W.20). ' The post-mortem report reveals following injuries on the person of the deceased:-- (1) Skin covering was present on the bones. There was a circular hole in skin of the face on left side just below the left eye orbit. There was no burning or tattooing effect around the defect. The underlying maxillary bone was also penetrated having a circular hole measuring 1.2 c.m. In diameter at the lower margin of left orbit. The margins of the defect in the bone showed inward displacement consistent with wound of entry. (2) There was circular defect over the inferior part of the occipital bone of the skull. The skin and soft tissues was softened and liquefied. The defect was 1.5 c.m. In diameter circular penetrating defect in left side of maxillary bone measuring 1.2. c.m. In diameter on front and a circular defect measuring 1.5 c.m. On the inferior part of occipital bone posterior part of left ramus of mandible (lower Jaw) bone was fractured. The sphenoid bones, temporal bones and left parietal bone were fractured in the line of track of the bullet and fractured lines extend outward and upward. The occipital bone was fractured at posterior left margin of the foramina magnum having the circular defect of exit measuring 1.5 c.m. In diameter. ' The track of the bullet was with entry on the left side of the face just below the left eye. The entry defect was circular and measured 1.2 c.m. In diameter. The bullet in its track fractured maxilla, left side of the mandible and bones of the base of the skull from anterior to posterior i.e, sphenoid, temporal, parietal and occipital bones. The exit defect measuring 1.5 c.m. In diameter was on the posterior margin of the foramina magnum. The hind brain area also comes in the track. The range of the fire seemed to be near range with direction from front to backward and slightly from above downward obliquely. The damage caused by the bullet is consistent with rifled bore. ' According to the opinion of Medical Board, "the cause of death seemed to be bullet injury on the left side of face and tracking through the base of skull and brain stem with exit on the posterior inferior part of the skull. As the bullet tracked through the hind brain which contained vital centres, therefore, the death occurred immediately on spot. The direction of the fire was from front to backward and slightly oblique from above downward. The range of fire seemed to be near range about 10 to 15 feet." ' After the completion of usual police investigation, the accused was sent to face trial before District Criminal Court, Bhimber. The trial Court framed the charge against the accused-appellant on 25- 5-2005, whereby he denied the guilt and claimed the trial. ' The prosecution, in order to strengthen its case, produced Arshad Mahmood (P.W.1), Naseeb-Ullah (P.W.3) Abdul Rehman (P.W.4), Abdul Ghaffar (P. W . 5), Raja Naveed (P. W . 6), Babar Khan (P. W.7), Muhammad Kamal (P. W.8), Tanzeem Ullah (P.W.10), Jahangir (P.W.11), Mst. Tazeem Akhtar (P.W.13), Saleem Akhtar (P.W.14), Abid Hussain (P.W.15), . Jabbar Ahmad Patwari (P.W.16), Ch. Ghulam Sarwar, Tehsildar (P.W..17), Dr. Tariq Mahmood Khan (P.W.18), Dr. Naseer Ahmad Shaikh (P.W.19), Muhammad Aziz, Head Constable, Police (P. W. 21), Sajid Mahmood, Head Constable, Police (P.W.22) and Sohail
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Yousaf, S.-I., Police (P.W.23), whereas Raja Abdul Razzaq (P.W.2), Khushhal Khan (P.W.9), Yaseen Ahmad (P.W.12) and Dr. Arshad Mahmood (P.W.20) were given up by the prosecution. ' After completion of the prosecution evidence, the salient features and the circumstances of the prosecution evidence appearing against the accused-appellant were put to him for his explanation as required by section 342, Cr.P.C. But he refuted the charges levelled against him and attacked the validity of the statements of all the P.Ws. He specifically alleged that he was falsely implicated in the case on account of enmity. No defence evidence was produced by the accused- appellant. ' Appellant Raja Muhammad Asghar was tried by the District Criminal Court, Bhimber. After the conclusion of the trial, the District Criminal Court, Bhimber found him guilty and by his judgment recorded on 27-9-2005 convicted and sentenced him to death as `Qisas". ' Feeling aggrieved, the convict-appellant has challenged his conviction and sentence by way of this appeal whereas a reference has also been made by the trial Court for confirmation of the sentence of "Qisas". ' In support of the appeal, it was vigorously argued by Abdul Majeed Malik, the learned counsel for the accused-appellant that the trial Court has miserably failed to establish a case against the accused-appellant. The learned counsel contended that the F.I.R. Was lodged after delay of 24 hours in the house of deceased, wherein neither the accused was nominated nor any prosecution witness. The learned counsel pointed out that F.I.R. Does not attribute the role of firing to one person but many persons and furthermore the F.I.R. Dots not speak of any enmity or The learned counsel also submitted that the occurrence took place on 4-9-2004 but the dead body of the deceased was exhumed on 12-10:2004. The learned counsel argued with vehemence that Kalashnikov, the weapon of offence, was not recovered from the accused, the shirt of the deceased was found washed and neither the report of Chemical Examiner nor the report of Serologist was produced in support of the prosecution story. The 'learned counsel maintained that after 24 days of the occurrence 10 empties of Kalashnikov were recovered from Babar Khan P.W. But this recovery also does not strengthen the prosecution case because the Kalashnikov could not be recovered. The learned counsel pressed into service the submission that according to the site plan there is only one eye-witness of the occurrence namely Abdul Razzaq but he was also not produced, whereas the names of remaining witnesses do not appear in the site plan. The learned counsel laid great stress upon the point that according to F.I.R., the deceased died due to aerial firing by certain persons and not of the firing made by one person. The learned counsel further argued that the charge against the accused-appellant was also framed in the manner that due to aerial firing of the accused, the deceased died spontaneously, therefore, the trial Court fell in grave error while recording the impugned judgment and awarding the extreme penalty of death to the accused- appellant. The learned counsel maintained that except Naseeb Ullah, the statements of remaining P.Ws. Under section 161, Cr.P.C. Were recorded after 10 days of the occurrence but no explanation was furnished by the prosecution about the aforementioned delay which adversely affects the prosecution story and it also appears that the P.Ws. Are not telling truth. The learned counsel pointed out that the medical evidence does not corroborate the ocular version because according to the post-mortem report, the shot was fired from upward to downward obliquely which is not possible because it has been alleged by the eye-witnesses that the assailant was sitting on a chair and the victim was standing. According to the learned counsel, the eye-witnesses are closely related to the deceased and not a single independent witness was produced whereas it is admitted on the part of prosecution that 250 to 300 persons were present in the marriage ceremony at the time of occurrence. The learned counsel has drawn my attention towards the statement of Abdul Ghaffar (P.W.5), who according to him categorically falsified the prosecution tale. The learned counsel emphasized that the prosecution story was concocted to implicate the
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accused on account of enmity and highly interested and close witnesses were planted to strengthen the case of prosecution, therefore, the prosecution evidence is not worthy of any credence. The learned counsel finally prayed that the impugned judgment of conviction is against the settled principles of law on the subject and liable to be set aside. In support of his contention, the learned counsel cited the following authorities:-- (1) 1984 SCMR 930 (2) PLD 1993 Lahore 434 (3) 1996 MLD 919 (4) 2005 SCR 1 ' Controverting the arguments raised by the learned counsel for the accused-appellant, Ch. Jahandad Khan, the learned counsel for the complainant submitted that the presence of the accused, at the spot, firing shots .Of Kalashnikov by the accused at the place of occurrence, the death of the deceased by the firing of Kalashnikov and preparation of a video film of marriage ceremony are admitted facts which need not to be proved. The learned counsel further contended that delay in F.I.R. And the fact of not nominating the accused in the F.I.R. Have been abundantly explained by the prosecution because the complainant party was afraid of the threats of accused, his brother and his wife that in case they nominated the accused all of them will be murdered. The learned counsel pointed out that Mst. Tazeem Akhtar and Arshad Mahmood, P.Ws. Have categorically stated that about the fact of threatening of the accused party but the above stated fact was prosecution. The learned counsel zealously argued that the eye-witnesses have deposed before the trial Court that the accused-appellant had intentionally caused the death of the deceased by firing a shot of Kalashnikov; therefore, instead the F.I.R. Or the statements of P.Ws. Recorded under section 161, Cr.P.C., the statements of the eye-witnesses recorded by the trial Court have to be preferred and relied upon. The learned counsel also submitted that the video film produced by the prosecution is admissible in evidence under Article 164, of Qanun-e-Shahadat Order, which also proves the prosecution version. The learned counsel further maintained that the prosecution story does not suffer from any material illegality or infirmity and all the eye-witnesses are unanimous on the point that the deceased was done to death by causing a shot of Kalashnikov by accused-appellant which hit just below his left eye and exited from the posterior part of his skull. The learned counsel pointed out that the prosecution story is also supported by the medical evidence and it has been abundantly proved that the direction of fire was upward, therefore, the words "slightly oblique" appearing in the post-mortem report does not prove that the medical evidence is directly in conflict with the ocular testimony. In support of the arguments, the learned counsel placed reliance upon the following authorities:-- (1) 1978 SCMR 136, (2) PLD 1984 SC (AJ&K) 107, (3) PLD 1998 Peshawar 130, (4) 2001 PCr.LJ 503, (5) PLD 2001 SC 107, (6) 2001 SCMR 324, (7) PLJ 2002 Lahore 159, (8) 2003 PLC (C.S.) 424, (9) 2004 MLD 1769, (10) Quetta 123, (15) 2005 SCMR 1906, (16) 2005 SCMR 1568, (17) 2005 YLR 2298; (18) 2005 MLD 1425 and (19) PLD 2005 Peshawar 221. ' Sardar Muhammad Raziq Khan, the learned Addl. A.-G. Appearing on behalf of the State has submitted that according to the facts and circumstances of the case, the ,instant case is not of an intentional murder rather the convict-appellant has committed an offence of Qatl-Bis-Sabab under section 322, A.P.C., therefore, the death sentence may be altered into Diyyat. ' I have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. The occurrence, according to the F.I.R., took place at midnight of 4/5-9- 2004. The statement of the complainant was recorded by Investigating Officer, Sohail Yousaf, S.-I./S.H.O. (P.W.23) on 5-9-2004 at the residence of deceased. It is admitted on record that Yasir deceased died by firing a shot of Kalashnikov rifle. The place of occurrence is not disputed. It is also not disputed that at the time of occurrence, the accused-appellant was armed with
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Kalashnikov. It is also admitted fact that a video film of the marriage ceremony was prepared at the place of occurrence. The moot point which goes to the root of the case is as to whether deceased Yasir was intentionally murdered or killed without any intention. ' After going through the entire record and after having applied my judicious mind, I have arrived at the conclusion that the deceased was accidentally hit by firing of lethal weapon of the participants of marriage ceremony, who were firing shots to celebrate the marriage ceremony which is an unhealthy tradition of enjoyment in such-like functions. It is further admitted on record that the complainant did not lodge an F.I.R. Rather his statement was recorded at his residence after the delay of 24 hours and in spite of that he did not nominate the accused in F.I.R. On the same day, his statement under section 161, Cr.P.C. Was recorded but he did not mention the name of any accused. Similarly, the statement of other prosecution witnesses were recorded on 14-9-2004, after the delay of 10 days but none of them implicated the accused-appellant with the commission of murder and after 9 months of the occurrence at the time of recording the evidence of the prosecution witnesses before the trial Court, the P.Ws. Tried to implicate the accused with the commission of murder. ' It will be relevant to mention here that neither the P.Ws. Have been nominated in the F.I.R. Nor during the statement of the complainant recorded under section 161, Cr.P.C. Furthermore, the names of P.Ws. (except Raja Abdul Razzaq (late), who was given up by the prosecution) do not appear in the site plan Exh.P.1, as eyewitnesses. It was also not explained by the prosecution that as to why the statements of the eye-witnesses were recorded after the delay of 10 days especially when they were living in the vicinity and according to them, they were associated with the process of investigation from the day first. On this account, their evidence being doubtful and manipulated cannot be relied upon. In this regard reference can be made to a case titled Budho v. The State PLD 1965 (W.P.) Karachi 76, wherein the evidence of eyewitnesses recorded after four days of the incident was ruled out of consideration. The same view was affirmed in a case titled Muhammad Iqbal v. The State 1984 SCMR 930. ' It will be worth-mentioning that according to the prosecution at the time of alleged occurrence about 200/250 persons were present but not a single independent witness was produced in support of the prosecution version. Arshad Mahmood (P.W.1) is father of the deceased. Raja Naseeb Ullah Khan is father-in-law of the daughter of complainant. Abdul Rehman (P.W.4) and Jahangir (P.W.1) are sons of Naseeb Ullah Khan. Mst. Tazeem Akhtar (P.W.13) is his niece. Kamal (P.W.8) and Khushhal (P.W.9) are his nephews. Tanzeem Ullah (P.W.10) is his brother. Abdul Ghaffar (P.W.5) and Raja Naveed (P.W.6) are also related to him. In such state of affairs, the evidence of close relatives of the deceased coupled with other coherent defects cannot be taken into consideration. ' I am cognizant of the fact that mere relationship is not sufficient to discard the deposition of the eye-witnesses but in case of interested witnesses, the Court has to appreciate the evidence with care and corroboration of such evidence has to be insisted. Coming to the instant case, the evidence of eye-witnesses is doubtful. All the eye-witnesses are members of one family, who according to the peculiar facts and circumstances of the case, are highly interested and inimical to the accused-appellant. Their evidence is also vague, inconsistent and self-contradictory. ' It is by now settled proposition of law that, in fact, it is an inherent worth of testimony of a witness to determine his credibility because the statement of worse enemy can be considered if it inspires confidence and its intrinsic worth is not shaken. Similarly, a testimony of an independent witness can be brushed aside if it does not ring true. ' Now following the above principle to the present case by attesting the credibility of P.Ws. On the touchstones of the principle laid down by the superior Courts. Admittedly, the P.Ws. Have changed their view after 9 months of the occurrence and during this period they did not approach any superior authority or to any Court. The complainant party did not file a private complaint even
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though they did not challenge the order of confirmation of pre-arrest bail of the accused- appellant passed by the District Criminal Court. When all the above mentioned facts are taken in juxtaposition with the prosecution evidence and the defence plea, it seems that the defence plea is more appropriate and trustworthy. At this stage, it needs to be emphasized that the burden of proving its case always rests on the prosecution which is duty bound to prove its case against the accused beyond reasonable doubt. This duty does not change or vary even in a case in which no defence plea is taken by the accused. The defence plea is always to be considered in juxtaposition with the prosecution case, and in the final analysis, if defence plea is proved or accepted then the prosecution case would stand discredited/shattered. My view stands fortified by the case of Ashiq Hussain v. The State 1993 SCMR 417, wherein the following principle was enunciated:-- "It is needless to repeat that it is bounden duty of the prosecution to prove the case against accused beyond doubt and this duty does not change or vary in the case in which any defence plea is taken. Burden of prosecution to prove its case beyond doubt remains the same. Of course, defence plea is to be considered in juxtaposition with prosecution case and in the final analysis if defence plea is proved or accepted then prosecution case would stand shattered and discredited. It would be enough if plea is substantiated to the extent of creating doubt in the credibility of the prosecution case. If defence plea is not substantiated, no benefit accrues to the prosecution on that account and its duty to prove the case beyond doubt would not be diminished even if defence plea is not proved or is found to be palpably false." ' Keeping in view the above mentioned dictum of the apex Court, I would now discuss the evidence produced by the prosecution in support of its case. ' Arshad Mahmood (P.W.1) is not an eye-witness, who deposed that the occurrence was told to him by his wife and daughter-in-law but his wife Mst. Tazeem Akhtar did not corroborate the aforementioned fact. Similarly, Arshad Mahmood deposed that the contents of F.I.R. Have been recorded according to his testimony, are correct, which wholly falsifies the prosecution version. ' Similarly, the testimony of Naseeb Ullah (P.W.3) is quite inconsistent with the F.I.R. And the statement recorded under section 161, Cr.P.C.. ' Abdul Rehman (P.W.4) son of Naseeb Ullah, son-in-law of Arshad Mahmood complainant, introduced a new story. According to Naseeb Ullah (P.W.3), the police recovered 1 empty from the place of occurrence on 6th September, 2004 whereas according to him 10 empties were recovered by police from the place of occurrence. ' Abdul Ghaffar (P.W.5) has not supported the prosecution case and categorically stated that the accused did not aim at the deceased. On a Court question, he replied in the following manner:- ' Raja Muhammad Naveed (P.W.6) prepared video cassette of the marriage ceremony but he also failed to implicate the accused-appellant with the commission of offence. ' Babar Khan (P.W.7) son of Naseeb Ullah (P.W.3), deposed in examination-inchief altogether a different story from the F.I.R. And his early statement recorded under section 161, Cr.P.C. However, he admitted the fact that on the next day of occurrence, the police came at the residence of complainant and Inquired from him about the occurrence but his statement was recorded on 14- 9-2004. ' Muhammad Kamal (P.W.8), nephew of Naseeb Ullah, also tried to implicate the accused who deposed that his statement Exh.D.H. Under section 161, Cr.P.C., was not recorded according to his version. ' Tanzeem Ullah (P.W.10) testified that after making two aerial fires, the accused aimed third fire upon the deceased. However, he admitted the fact that Abdul Razzaq (late) P.W.2) sought pre- arrest bail and he stood surety for him.
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' Mst. Tazeem Akhtar (P.W.13) also stated that after making two aerial fires, the accused fired third shot upon the deceased, who after hitting the shot fell down and died spontaneously but according to the other eye-witnesses at the time of occurrence, she was sitting in a room. She also deposed that police did not record her statement and the statement Exh.D.L. Is not correct. ' Sohail Yousaf, S.-I./S.H.O. Police (P.W.23) testified that according to his investigation accused- appellant committed an offence under section 322, A.P.C. ' As far as the corroboratory evidence is concerned, it also does not extend any support to the ocular version. The Kalashnikov, weapon of alleged offence, was not recovered, therefore, 10 empties produced by Babar Khan (P.W.7) are of no importance. The dead body was buried without post-mortem. The shirt of the deceased does not show any bloodstains because it was washed by the complainant party. Similarly, the site plan Exh.P.1 is of no help to the prosecution version because it was not prepared on the pointation of eye-witnesses. The inquest report Exh.P.M. Also negates the prosecution story because according to the afore-stated report a shot of Kalashnikov accidentally hit the deceased. 'It is necessary to mention that, I have watched the video cassette, prepared during the marriage ceremony, in the presence of parties, their learned Advocates and some of the senior Advocates like Muhammad Sharif Tariq, Ch. Lal Hussain, Ch. Khalid Rasheed, Ch. Ali Muhammad Chacha and Liaquat Ali Khan. A careful sight of video cassette shows that the accused-appellant was making aerial firing with Kalshnikov with one hand along with some other persons but it does not show that the shots fired by the accused-appellant hit the deceased.…
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