Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SAID AKBAR and another VS Respondent: SARDAR GHULAM HUSSAIN KHAN (deceased)
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Chaudhary Muhammad Ibrahim Zia, Raja Saeed Akram Khan Title:SAID AKBAR and another vs SARDAR GHULAM HUSSAIN KHAN (deceased)
JUDGMENT
Reported As: PLJ 2016 Sc (AJ&K) 119 Result: Petition dismissed Judgment JUDGMENT ' Raja Saeed Akram Khan, J.--This appeal has been directed against the judgment of the Shariat Court dated 25.09.2013, whereby while setting aside the judgment of the Additional District Court of Criminal Jurisdiction, Hajira the judgment of the trial Court has been restored. 2. The facts in brief are that Sardar Muhammad Zaman Khan, the complainant, lodged an F.I.R. At Police Station, Abbaspur on 8.11.1996, alleging therein, that his brother Sardar Ghulam Hussain Khan purchased a piece of land from Muhammad Aslam, the brother of Muhammad Afsar Khan, accused, in lieu of Rs, 4,00,000/-. Muhammad Aslam has handed-over the possession of land along with the house and crops over the land. Thereafter, he insisted to return the land whereupon, a panchayat' was convened and the matter was settled between them. Later on, Muhammad Aslam committed the breach of the decision of "panchayat" and forcibly took the possession of the land etc., and also hewed maize crop. It is further alleged in the F.I.R. That on 8.11.1996, at 5:30 p.m., the complainant's wife along with the wives of Sardar Ghulam Hussain and Sardar Muhammad Sadiq Khan went to ask the health of Muhammad Siddique's mother, where the wife of Muhammad Afsar, accused, called them inside the house. Meanwhile. Muhamamd Afsar armed with .12-bore rifle, Muhamamd Riaz and Said Akbar, armed with pistols, came there. The accused started firing on the spot. In the meantime, the complainant went at the spot to know that why the firing is being made but all the three accused beat him severely. On hearing hue and cry, when his brother Sardar Ghulam Hussain arrived at the spot, the accused Muhammad Afsar Khan caused a blow with the butt of rifle on his head. Muhammad Riaz, accused, pelted a stone, which hit on the face of Ghulam Hsussain and also caused blow of butt of the gun at his arm. Said Akbar, accused, with the
---
## Page 2
intention to kill, fired a shot upon the complainant's wife, Mst. Musarrat Begum, which landed on the backside of her neck. Along with the accused, Muhammad Nazir, Gohar Nazir, Ghulam Haider, Latif, Rafique, Tahir, Nadeem, Saleem, Sherdil, Zaffar, Sagheer, Nisar, Afsar Jan and Muhammad Khaliq, armed with sticks were present at the spot. Muhammad Nazir caused blows, to the complainant and his wife with hockey, whereas, the other accused pelted stones and hurled abuses to the complainant ,party. The accused Ghulam Haider, Nadeem, Saleem and Khaliq also gave blows of fists and kicks to the complainant. Besides Khan Muhammad Khan and Muhammad Siddique, the occurrence was witnessed by many other people of the vicinity. On this report, a case under Sections 324, 337, 147, 148,149 and 506, APC was registered against the convict-appellants and others. After usual investigation, the challan was presented in Tehsil Court of Criminal Jurisdiction, Abbaspur against Muhammad Afsar, Said Akber, Muhammad Riaz, Muhammad Nazir and Muhammad Khaliq, whereas, the other accused were given benefit under Section 169, Cr.P.C. After conclusion of trial, the Tehsil Court of Criminal Jurisdiction, Abbaspur convicted the appellants, whereas, the other accused were acquitted of the charge vide its judgment dated 5.4.2003. The convict-appellants filed an appeal against the aforesaid judgment of the trial Court in the Court of Additional District Court of Criminal Jurisdiction, Hajira which was decided on 17.5.2005 and the case was remanded to the trial Court for decision afresh after recording the statements of the accused under Sections 342, Cr.P.C. On 30.5.2005, the aforesaid statements were recorded and the case was decided on 30.08.2005, through which the accused were again convicted. The convict- appellants challenged the aforesaid judgment in the Additional District Court of Criminal Jurisdiction, Hajira on 1.09.2005, which was decided on 8.11.2007 and the case once again was remanded on the ground that all incriminating material was not put to the accused. On remand, the trial Court again recorded statements of the accused under Section 342, Cr.P.C., on 18.3.2008 and after hearing arguments decided the case on 7.5.2009, whereby Said Akbar, appellant, was convicted and sentenced under Section 337-F(i) to one year's simple imprisonment along with Rs, 10,000/- as daman, which was to be paid to Mst. Musarrat Begum injured and in default of payment thereof, it was ordered to detain the convict in jail till realization of payment. Moreover, he was also sentenced under Section 13 of the Arms Act, 1965 for one year's simple imprisonment along with a fine of Rs, 2,000/- and in case of non-payment the convict has to go under further imprisonment for 1/4th period of the total imprisonment. Muhammad Riaz, appellant, was convicted and sentenced under Section 337-A(i) for six month's simple imprisonment along with Rs, 8000/- as Daman which was to be paid to Ghulam Hussain, injured and in default of payment it was ordered to detain the convict in jail till realization of payment. The aforesaid judgment was challenged by the convict-appellants, herein, in Additional District Court of Criminal Jurisdiction, Hajira on 8.5.2009, by way of appeal which was decided on 28.10.2009 and the convict-appellants were acquitted of the charge. Feeling dissatisfied, injured Ghulam Hussain challenged the judgment of the Additional District Court of Criminal Jurisdiction, Hajira 'before the Shariat Court. The Shariat Court set aside the judgment passed by the Additional District Court of Criminal Jurisdiction, Hajira, dated 28.10.2009 and while upholding the judgment of Tehsil Court of Criminal Jurisdiction, Abbaspur maintained the sentence awarded to the convict-appellants by the trial Court. Hence, this appeal. 3. Sardar Karam Dad Khan, Advocate, the learned counsel for the convict-appellants argued that the learned Shariat Court while maintaining the conviction recorded by the trial Court failed to appreciate the evidence in a legal manner. He submitted that well reasoned judgment was passed by the 'Additional District Court of Criminal Jurisdiction, Hajira which has been disturbed by the Shariat Court without assigning any reasons. He contended that the learned Shariat Court also failed to take into account that the medical evidence does not corroborate the ocular account which creates a serious doubt, whereas, it is settled principle of law that the benefit of the slightest
---
## Page 3
doubt must go to the accused being a favourite child of law. While referring to the medical report, he submitted that the nature and size of the injuries shown by the doctor cannot be caused as stated by the, prosecution. He added that the doctor while recording his statement as a witness, has also made the statement on different lines. He further added that according to the doctor's statement, the exit wound was found, whereas, the complainant stated in his statement that the bullet was recovered from the body in the hospital. He strongly argued that two injuries of the same nature/size cannot be caused by a single bullet, whereas, in the medical report entry and exit wound both have been shown as of the size of 2x2cm which creates a serious doubt. Admittedly, all the prosecution witnesses (PWs) are closely related to the complainant's party and their testimony cannot be relied upon without strong corroboration, whereas, no such corroboration is available on record. He further added that report of Forensic Science Laboratory has not been brought on record, moreover, no empties/cartridges have been recovered which makes the case further doubtful. He added that the stone through which the alleged injury was caused to one Ghulam Hussain has also not been taken into custody. He added that recovery of .32-bore revolver was made 5 days after the arrest of the accused which appears to be unnatural. He submitted that nothing is on record that whether at the time of recovery of revolver, the bullets/empties were found lying in it or not. He further added that 18 PWs were cited in the calendar of witnesses but only 11 were examined and 7 have been given up without assigning any reason. While referring to the statements of different witnesses, he stated that there are glaring contradictions in their statements which cannot be ignored lightly. He lastly submitted that there is a number of doubts in the instant case, whereas, it is recognized phenomenon of law that a single doubt is sufficient to acquit an accused. He has relied upon the case reported as Muhammad Aslam v. State 11999 SCMR 1721. Jan Aslam v. The State & others [2004 P.Cr.LJ 681, Muhammad Riaz & others v. The State 12008 P.Cr.LJ 3181 and Nazir Ahmed v. The State and others 12002 P.Cr.LJ 1491. 4. On the other hand, Barrister Hamyun Nawaz Khan. Advocate, the learned counsel for the complainant strongly opposed the arguments advanced by the learned counsel for the convict- appellants. He submitted that the impugned judgment is perfect and legal which does not warrant any interference by this Court. He submitted that the impugned judgment has been passed by the learned Shariat Court after duly appreciating the evidence brought on record. He added that it is a case of direct evidence and the prosecution has succeeded to prove the case against the convict- appellants beyond any reasonable doubt. In this state of affairs, the other corroborative pieces of evidence have no value in the eye of law. He added that the place, manner, date and time of the occurrence are admitted as defence failed to cross-examine the prosecution witnesses on the material points. He submitted that all the PWs made the statements in line with each other and mere relationship cannot be made a ground for discarding their testimony when no enmity of the witnesses against the convict-appellants came on the record. The occurrence took place in a house and the presence of the PWs is natural one. While referring to the different portions of the statements of eye-witnesses, he submitted that they fully implicated the convict-appellants in the occurrence. The FIR was promptly lodged and all the accused were nominated in the FIR with their specific roles. He added that during the course of cross-examination, a suggestion was put by the defence that the complainant was aggressor. Whereas, the defence failed to substantiate the same through any evidence. However, on Court's query, the learned counsel for the complainant failed to satisfy, the Court regarding the delay in recovery of revolver and non-recovery of cartridges. He has relied upon the cases reported as Ishtiaq Ahmed & others v. The State and others IPLJ 2013 SC (AJ&K) 2311 and Muhammad Tahir Aziz v. The State & another 12009 SCR 711. 5. Ch. Shaukat Aziz, the learned Additional Advocate-General, also adopted the arguments advanced by the learned counsel for the complainant. While making addition, he added that no illegality has been committed by the Shariat Court while restoring the judgment of the trial Court
---
## Page 4
as the convict-appellants actively participated in the occurrence and caused injuries to the complainant party. The statements of the injured witnesses are much reliable which cannot be ignored lightly. 6. We have heard the learned counsel for the parties and gone through the record along with the impugned judgment with utmost care a caution. It is spelt out from the record that occurrence took place on 08.11.1996, at about 5:30 p.m. And the FIR was lodged after one hour of the occurrence i.e,, 6:30 p.m.. The role assigned to the convict-appellants is that at the time of occurrence they were armed with pistols. The convict-appellant, Said Akbar fired a shot which hit the neck of the complainant's wife, whereas, convict-appellant, Muhammad Riaz inflicted injury with a stone to the brother of the complainant, Ghulam Hussain due to which his teeth and lips were injured. Moreover, they also beat the complainant party. The learned counsel for the convict-appellants submitted that the medical report does not corroborate the ocular account which creates a serious doubt. To appreciate the argument, we have examined the medical report. According to the medical, report a fire-arm injury was found at the neck of the complainant's wife, moreover, the medical report also corroborates the other injuries inflicted to the complainant party as narrated in the FIR. In the occurrence, three persons were stated to be injured. The injured persons also appeared before the Court and recorded their statements as witnesses. We have examined their statements. It would be advantageous to reproduce here the relevant portions of their statements which read as under:-- ' The complainant, Muhammad Zaman, stated in his statement that: {{URDU TEXT}} ' The other injured witness, namely, Ghulam Hussain stated that: {{URDU TEXT}} ' The injured witness, Musarrat Begum, wife of the complainant stated in her statement that: {{URDU TEXT}} The juxtapose perusal of FIR, medical reports and the statements of injured witnesses, we do not find any substance in the argument of the learned counsel for the convict-appellants that the medical report does not corroborate the ocular account. The argument of the learned counsel for the convict-appellants that two wounds of the same size cannot be caused by a single fire, whereas, in the medical report I the entry and exit wound both are shown as 2x2 cm which makes the case doubtful, is also not convincing in nature. It may be observed here that it depends upon the angle of fire or movement of the body and there is no hard and fast rule that entry wound must be small as compared to the exit wound. 7. We have also scanned the evidence of the eye-witnesses but failed to find out any major contradiction in the statement of the witnesses. It may be observed here that the evidence of the eyewitnesses cannot be brushed aside until some gross-contradictions come on the record. In the instant case, the discrepancies pointed out by the learned counsel for the convict-appellants are minor in nature which can be ignored. The argument which has strongly been argued by the learned counsel for the convict-appellants before this Court, is regarding the non-production of some witnesses cited in the calendar of witnesses. It may be stated here that it is settled principle of law that the discretion lies with the prosecution to examine the witnesses of its own choice and the prosecution cannot be compelled to examine each and every witness cited in the calendar of witnesses. Even otherwise, the witnesses who have been forgiven or not examined are not the material witnesses. In a recent judgment titled Karamat Hussain vs. The State (Criminal Appeal No, 10 of 2012 decided on 16.05.2015) this Court while dealing with the proposition observed as under: "Although, 14 witnesses were cited in the calendar of witnesses, however 12 were examined and one could not be examined due to his death and the remaining other one was abandoned. There is plethora of judgments of this Court that it is not necessary for the prosecution to examine each
---
## Page 5
and every witness cited in the calendar of witnesses. It is sweet-will of the prosecution to examine the witnesses of its own choice". 8. We have also considered the argument of the learned counsel for the complainant that on the material points the eyewitnesses were not cross-examined. For our satisfaction, we have examined the statements of the eye-witnesses from this angle. It transpires from the perusal of the statements of the eye-witnesses that the argument of the learned counsel has substance. It appears from the perusal of the statements that on the material points, the witnesses have not been cross-examined by the defence side even no question regarding the place, manner and time of occurrence has been put to the witnesses. It is settled law that if a portion of the statement is not challenged in cross-examination, the same is deemed to be admitted. In this state of affairs, it can safely be held that the manner, place and time of occurrence are not denied. The learned counsel for the complainant has rightly relied upon the case reported as Muhammad Tahir Aziz v. The State 12009 SCR 711, wherein, this Court has Observed as under: "18 His presence at the place of occurrence along with other witnesses was not disputed during the cross-examination. When there is no cross-examination on the aforesaid points, then the same will be deemed to be admitted because it is well settled principle of law that failure to cross-examine on a particular point shall be deemed to be admitted." 9. The argument of the learned counsel for the convict-appellants that the witnesses are related to each other, therefore, their evidence cannot be believed, is also not convincing in nature as there is plethora of judgments that mere relationship cannot be made a ground to discard the testimony of the witness until some ill-will or animosity of the witness against the accused comes on the record. In a recent judgment titled Ghazanfar Ali v. The State and others (Criminal Appeal No, 31 of 2011 decided on 13.04.2015) this Court has observed as under: "The argument of the learned counsel for the convict-appellant that all the witnesses are closely related to each other, therefore, their statements cannot be believed, has also no substance. It is settled principle of law that mere relationship is no ground for discarding the evidence of a witness. Reliance can be placed on a case reported as Irfan Hussain v. Allah Din and others [2014 P.Cr.LJ 3121, wherein it has been held that: 'From the Survey of case law, it appears that "mere relationship is no ground for discarding the evidence of witnesses. It may be observed that a party may rope innocent persons in a crime along with a real culprit but it is not natural that a party would leave the real culprit and instead falsely implicate innocent person'." ' It is also spelt out from the record that occurrence took place in a house, therefore, the presence of the witnesses seems to be natural. Even otherwise, defence failed to bring any piece of evidence that the presence of the eye-witnesses at the time of occurrence is doubtful. The learned counsel referred to the statement of one Muhammad Yaseen while submitting that the said witness is shown in the calendar of witnesses as eye-witness but he stated in his statement that he has not seen the occurrence. We have also examined the statement of said witness. He statedin his statement that: ' The learned High Court after necessary proceedings through consolidated impugned judgment dated 19.6.2014 disposed off the writ petition as indicated in the preceding Paragraph No, 1. 3. Mr. Raza Ali Khan, Advocate, the learned counsel for the appellants, while arguing Appeal Na. 236 of 2014 titled Syed Khadim Hussain Bukhari and others vs. Imran Aziz Butt & others, submitted that the judgment passed by the High Court is against law and the facts of the case, which is not sustainable in the eye of law. He further contended that at the time of requisition, only one post which was held by Respondent No, 1, was available. He submitted that the other post became vacant due to resignation of Tahir Saleem Usmani, therefore, the claim of the respondent that the post which had been advertised was not the one which he was holding is totally against the facts
---
## Page 6
and record. He contended that the respondent, while concealing the true facts from the High Court, succeeded to get the direction in his favour. The learned counsel contended that before completion of the process of selection in the Public Service Commission, the Government vide notification dated 21.12.2010 shifted one post of Assistant Director Mineral Resources to the Department of Industries, Commerce and Labour. He submitted that appellant No, 1 was appointed against the said post on promotion basis. He further contended that the respondent did not challenge the notification dated 21.12.2010 and after the promotion of appellant No, 1, there was no post available. The learned High Court erred in law while holding that two posts were available at the time of the requisition and one was withheld by the Public Service Commission/department. In this way, the learned High Court while accepting the writ petition issued the direction for appointment of the respondent is based on misconception. The respondent while filing writ petition in the High Court has not arrayed the appellants as party in the writ petition. The impugned judgment of the High Court has been passed against the interest of the appellants, therefore, they have been constrained to file the appeal before this Court. During the course of arguments, the learned counsel referred different documents available on the record, while submitting that all these documents escaped from the notice of the learned High Court, which resulted into wrong conclusion by the High Court while holding that there were two posts available in the department. He further argued that the official respondents in their written statement categorically denied the requisition of the second post. He submitted that the respondent brought on record the fake documents which itself disentitled him to any sort of discretionary relief. The learned High Court while setting aside the notification dated 21.12.2010 regarding the shifting of the post also failed to take into account that the impugned judgment would affect the accrued right of the appellants. The learned counsel lastly argued that the relief granted to the respondent is against the pleadings, which is otherwise against the settled principle of law. 5. On the other hand, Mr. Abdul Rasheed Abbasi, Advocate, the learned counsel for Respondent No, 1, strongly controverted the arguments addressed by the learned counsel for the appellants, while submitting that the judgment passed by the High Court is perfect and legal which is not opened to interfere with by this Court. He argued that the learned High Court has attended all the controversial questions and resolved the same while assigning strong reasons. He argued that two posts of Assistant Director, Mineral Resources, one at Muzaffarabad and the other at Mirpur were vacant in the department of Mineral Resources in the year 2006. He argued that two separate requisitions were sent to the Public Service Commission on 11.3.2006 and 4.11.2006, respectively. He argued that the appellants had already admitted in their comments that two posts of Assistant Director, Mineral Resources were requisitioned to the Public Service Commission. He submitted that the requisition sent to the P.S.C. Was never withdrawn with the approval of the competent authority. The claim of the appellants that only one post of Assistant Director Mineral Resources was available with the department is against the record. He further argued that the appellants have been promoted against the post on officiating basis which does not confer any right, hence, they do not fall under the definition of aggrieved persons and their appeal is not maintainable even on this sole ground. He averred that the leaned High Court has rightly issued the direction to the Public Service Commission to send the recommendations of the respondent against the post of Assistant Director Mineral Resources held by the respondent. 6. Sardar Muhammad Rasham Khan, Additional Advocate-General, the learned counsel for the appellants, while arguing Appeal No, 237 of 2014 titled Azad Gout & others us. Imran Aziz Butt and another, adopted the arguments of Mr. Reza Ali Khan, Advocate, the learned counsel for the appellants in Appeal No 236 of 2014 titled Syed Khadim Hussain Bukhari and others vs. Imran Aziz Butt & others, while adding that only one post became vacant with the department agaist which the requisition was sent to the Public Service Commission for conducting test and interview. He
---
## Page 7
argued that proforma-Respondent No, 2, being successfal candidate was appointed against the said post. He further argued that another post which fell vacant due to resignation of one Mr. Tahir Saleem Usmaui had been shifted to the Industrial Department in the year 2010 even before the institution of the writ petition of the respondents. He submitted that the learned High Court was not justified to accept the writ petition filed by the respondent, which is not sustainable in the eye of law. 7. Mr. Abdul Rasheed Abbasi, Advocate, the learned counsel for Respondent No 1, raised a preliminary objection regarding the maintainability of the appeal filed by the Azad Govt & others vs. Imran Aziz Butt & others, submitted that the petition for leave to…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.