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Petitioner: SARFRAZ alias SAPPI and 2 others VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Hamid Ali Mirza, Syed Deedar Hussain Shah Title: SARFRAZ alias SAPPI and 2 others vs THE STATE Case No.: Criminal Appeal No.153 of 1996 Criminal Appeal No. 799 of 1995 Date of Judgment:2000-06-09 Reported As: 2000 SCMR 1758 Result: Order accordingly
JUDGMENT
JUDGMENT ' IFTIKHAR MUHAMAMD CHAUDHARY, J.---Instant appeal has been filed by leave granting ,order, dated May 30, 1997 to consider the following contentions:-- "Learned counsel submits that Ahmad Khan P.W.2 is the father of the deceased. Salhawat Hussain P.W.3 is a member of his tribe. Intisar Hussain who was an independent witness was not produced by the prosecution in support of its case. It is added that while discarding the testimony of P.Ws., Muhammad Amin and Muhammad Afzal were acquitted by the Courts below and as such without sufficient corroboration which was surely not available on record, there was no justification with the Courts below to register conviction against the petitioners. Admittedly enmity between the parties existed and that being so, prosecution was required to have produced evidence of unimpeachable integrity to corroborate the eye-witness account." 2. Precisely stating facts of the case as disclosed by the prosecution before the trial Court are that Muhammad Azam (deceased) committed murder of Muhammad Latif son of Sultan, father of appellant Muhammad Sarfaraz alias Sappi on account of difference existed between them during elections held in the year 1990. In that case P.W.2 Ahmad Khan was also one of the accused. However, subsequently deceased Muhammad Azam was acquitted of the charge as parties compounded the offence. It is alleged that the brothers of late Muhammad Latif did not accept the compromise wholeheartedly, therefore, on 4th June, 1993 when P.W. Ahmad Khan, father of the deceased alongwith Intisar Haider (not produced) and Sakhawat Hussain (P.W.3), both residents of Ratti Tibbi were going to the house of Murtaza who is also a resident of same village. They met with Muhammad Azam deceased near the house of one Mustafa. It is alleged that at that stage of time appellants Sarfraz alias Sappi and Abdul Rashid both were armed with .12 bore guns, appellant
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Muhammad Ashraf armed with a 222 rifle; Muhammad Amin (acquitted accused) aimed with a kalashnikov and Muhammad Afzal (acquitted accused) armed with 8 m.m. Rifle came at the spot. Acquitted accused Muhammad Afzal told Sarfaraz alias Sappi (16 years at the time of incident) to murder Muhammad Azam deceased because he has murdered his father. On this, Sarfaraz alias Sappi fired upon Muhammad Azam deceased which hit him on his right side of the shoulder on the rear and also on the back side of the chest near the neck. It is further alleged that appellant Muhammad Ashraf and Muhammad Amin took positions with their respective weapons i.e. Kalashnikov and 8 m.m. Rifle and threatened that whosoever will come forward he will also be killed. In the meanwhile second shot was fired by Abdul Rashid with his .12 bore gun which also hit the complainant's son Muhammad Azam deceased on the neck and on the left side of the shoulder on the back side, as such he fell down and succumbed to his injuries instantaneously. F.I.R. Of the incident (Exh. PC/1) was registered at Police Station Safdarabad, Sheikhupura. Investigating Officer P.W. Ghulam Asghar, S.H.O. Proceeded to place of incident fromwhere he took into possession blood-stained earth vide recovery memo. (Exh. PA) dated 4th June 1993. It was sent to Chemical Examiner and Serologist, both of them vide reports (Ddis. PK and PL) respectively opined that the articles sent to them were stained with human blood. It may be noted that investigation of the case conducted by local police revealed that co-accused Amin and Afzal as well as Abdul Rashid and Ashraf are innocent, therefore, their names were placed in column No.2 whereas appellant Sarfaraz alias Sappi was sent up to face the trial. On this complainant Ahmad Khan filed a direct complaint before the trial Court i.e. Judge, Special Court No.III, Suppression of Terrorist Activities, Lahore Division, Lahore. The complaint so filed by him, however, was dismissed on February 14, 1994 for want of jurisdiction. But this order was set aside by Lahore High Court and the complaint was sent back to trial Court for proceeding on merits. Accordingly complaint was registered being Complaint No.10 of 1995 and vide order dated February 7, 1995 learned trial Court ordered consolidation of the complaint as well as State case. Thus, on account of filing of complaint besides appellants and acquitted accused were also summoned to face the trial. All the accused denied the charge readover to them on April 11, 1995 and claimed to be tried. 3. The prosecution adduced the evidence of P.W. Dr. Muhammad Modassar who produced post- mortem report Exh.PE. As per its contents following injuries were present on the dead body of the deceased Muhammad Azam:-- "(1) 3 penetrating wounds with blackening and tattooing around the wound margin measuring 1 c.m. x 1 c.m. At the left side of the neck mid-part close and below of the left chin in an area of 3 c.m. x 3 c.m. (2) Wound of exit at the right side of the neck midpart. (3) 3 penetrating wounds on the back of the chest right-side each measuring, 1 c.m. Diameter--1st penetrating wound at upper of back of right chest, 3 c.m. From the mid-line to the right 2nd penetrating wound 2 c.m. Below the Ist one- 3rd penetrating wound at the back of right mid-chest 4 c.m. From the 2nd one. (4) Wound of exit at the tops front of the right upper chest at the and above the clavicle. (5) 3 penetrating wounds on the front and outer and back of the left shoulder-joint. ' Mid-line incision given from strum to the lower abdomen. One pellet was found on the pecterrlis major muscle of the right front of the chest traversing from back to front. ' One pellet was found in the upper left chest traversing behind the trachea and disrupting the blood vessels of the left side of the neck. ' One pellet was found on the upper left chest' below the clavicle traversing from the left lung. ' Pellets sealed, signed and handed over to the Police. ' Fracture of the right side of 5th and 6th ribs was found on the back of the chest. OPINION
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' In my opinion the injuries on the neck by the fire-arm weapon had disrupted the vascular channels leading to hypovolemic shock, neurogenic shock. The injuries on the back of the chest had punctured by the injuries at the left shoulder made the lungs infarction through the track. Whole of the injuries collectively were sufficient to cause haemorrhage shock cardio vascular compromise leading to cardio vascular and respiratory failure leading to death of the person." 4. In addition to medical evidence prosecution led ocular evidence of P.Ws. Ahmad Khan, Sakhawat Hussain being the eye-witnesses of the incident and P.Ws. Muhammad Khurshid, Muhammad Riaz, Abdul Majid, Ghulam Murtaza, Muhammad Hayat, Ghularn Asghar were also examined. The accused facing trial were examined under section 342, Cr.P.C. None of them opted to give statement on oath under section 340(2), Cr.P.C. However, 5 defence witnesses namely, Sharafat Ali, Jafar Hussain, Muhammad Nawaz, Saifullah and Muhammad Ashiq were produced by the appellants to establish that P.W. Ahmad Khan is not a trustworthy witness because he had concealed material facts from the Court. On completion of trial vide its impugned judgment, dated 28th November, 1995 learned trial Court convicted and sentenced Muhammad Sarfaraz alias Sappi and Abdul Rashid appellants under section 302/34, P.P.C. To death and also to pay Rs.1,00,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default in payment of compensation they were ordered to suffer imprisonment for a period of 6 months each. As far as appellant Muhammad Ashraf is concerned he was awarded sentence of imprisonment for life under section 302/34, P.P.C. As also to pay Rs.50,000 as compensation under section 544-A, Cr.P.C., to the legal heirs of the deceased and for non-payment of this amount they were further directed to undergo six months' S.I. It may be noted that orders were also issued to recover the amount of compensation from all the accused as land revenue under section 544- A(2), Cr.P.C. As far as accused Muhammad Amin and Muhammad Afzal are concerned they were acquitted of the charge. 5. Appellants preferred appeal before Lahore High Court being Appeal No.799 of 1995 which was dismissed on February 12, 1997. 6. Learned counsel for appellants argued that P.W. Ahmad Khan complainant (father of deceased Muhammad Azam) has disqualified himself to be a trustworthy witness as he gave a false statement in the Court with regard to conduct of his deceased son Muhammad Azam (deceased). According to him he was a desperate criminal person because criminal cases vide F.I.R. (Exh. DW1/A) No.81 of 1993 dated 13-2-1993 Police Station B Division, District Sheikhupura, under section 302/324/148/149/188, P.P.C. As well as vide Rapat No.23 dated 5-6-1993 Exh.D.W. 2/B registered at Police Station Saddar, Farooqabad and vide F.I.R. No.126 dated 14-4-1989 under section 307/323/34, P.P.C. Police Station Safdarabad as well as F.I.R. No.136 dated 16-6-1992 under section 13/20 of Arms Ordinance, 1965 Police Station Safdarabad and another F.I.R. No.208 dated 27th October, 1990 under section 302/148/109, P.P.C. As well as F.I.R. No.153 dated 4th July, 1991 under section 216, P.P.C. And F.I.R. No.42 dated 21st February, 1991 under section 302/109/148/149, P.P.C. Being Exhs. D.W.4/A, B, C, D and E respectively at Police Station Ahmadpur (Mandi Dhabansingh) were registered against him. But when the witness was confronted with these documents he denied that these cases were not registered against his son. Similarly he deposed falsely that his son was in service of Punjab Reserve Police 2-1/2 or 3 years prior to the incident whereas actually he has been dismissed from service on 10th September, 1991 vide dismissal order 'Exh.DB. Therefore, he cannot be considered to be trustworthy person and his evidence for holding the appellants guilty for commission of the offence under the principle of Islamic dispensation of justice is not believable. 7. On our query learned counsel frankly conceded that P.W. 2 was not responsible for the deeds and acts of his deceased son Muhammad Azam because the latter being an independent person was liable for his own omissions and commissions. Thus, we are of the opinion that he cannot be held as a false witness. So far present incident is concerned all these facts would have no reflection on
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the incriminating parts of his testimony which he has furnished to prove the offence charged against appellants i.e. Commission of murder of deceased Muhammad Azam. This aspect of the case can be examined from another angle i.e. Standard of evidence under Islamic dispensation of justice can only be taken into consideration for proving the guilt where the accused has to be punished for the offence pertaining to Hudood or Qisas. But in the cases pertaining to Tazir standard of Islamic Qanun-e-Shahadat will not be applied. In this behalf reference to section 304, P.P.C. May be made which envisages that proof of Qatl-i-Amd liable to Qisas shall be in any of the forms namely if the accused makes before the Court competent to try the offence a voluntary and true confession of the commission of the offence or by the evidence as provided in Article 17 of Qanun-e-Shahadat Order, 1984. Reference in this behalf may be made to the case of Riaz Ahmad v. State (PLD 1999 SC 105).. Because in the instant case sentence of death has not been awarded to appellants Sarfaraz alias Sappi and Abdul Rashid of Qisas in terms of section 302(a), P.P.C., therefore, contention putforth by the learned counsel needs no further discussion. 8. Learned counsel for appellants further argued that P.W.1 Ahmad Khan is the father of deceased Muhammad Azam who has previous enmity with the appellants party on account of murder of Latif father of convict Sarfaraz alias Sappi, therefore, his testimony being of a interested witness is not worthy of acceptance. To elaborate his argument he contended that (except medical evidence) there is no other material to seek corroboration to his statement to ascertain whether he is telling truth or not. As far as medical evidence is concerned it is in conflict to the ocular testimony, therefore, learned High Court as well as trial Court were not right in believing the statement of this witness against appellants. 9. To counter his arguments learned counsel for complainant Mr. Malik Saeed Hassan pointed out that P.W. 1 Ahmad Khan though is the father of the deceased Muhammad Azam but he has no personal reasons to involve the appellants in the commission of offence.- Besides it, his testimony gets strong corroboration from the contents of F.I.R. Exh. PC/1 which was lodged promptly. According to him medical evidence is not at variance to ocular evidence of P.W. 2 and P.W. 3. Learned counsel further advancing his case pointed out that as far as P.W.3 Sakhawat Hussain is concerned he is an independent witness of the incident and he had strongly supported the version of P.W. Ahmad Khan and there is absolutely no reason to disbelieve-the testimony of this witness. According to him during cross-examination of both the witnesses i.e. P.Ws. Ahmad Khan and Sakhawat Hussain no material questions were put to them to shake intrinsic value of their evidence. Therefore, testimony of both these witnesses being consistent, coherent and trustworthy has rightly been believed by the learned High Court as well as trial Court. 10. We have carefully examined the F.I.R. Exh.PC/1, testimony of P.Ws. Ahmad Khan and Sakhawat Hussain alongwith other material produced by prosecution i.e. Medical evidence, reports of Chemical Examiner and Serologist Exhs. PK and PL as well as judgment, dated 28th November, 1995 passed by learned Special Court (trial Court) and the impugned judgment of learned High Court. In the most precise manner it is to be noted that in F.I.R. Exh. PC/1 it is mentioned that Muhammad Afzal (acquitted accused) gave proverbial Lalkara and stated to appellant Sarfaraz alias Sappi that "murderer of your father is going empty-handed today, he should not go unescaped". On showing positive response to command of Muhammad Afzal accused Sarfaraz alias Sappi opened fire with .12 bore gun which hit on the back and back side shoulder of Muhammad Azam. At this stage complainant and his companions stepped ahead to save him but appellant Ashraf and Amin (acquitted accused) pointing out their fire-arms towards them threatened that if they will come forward they will also be killed. In the meanwhile second fire was made by Abdul Rashid appellant with his .12 bore gun which hit on the neck and back side of the left shoulder of the son of the complainant and he fell down.
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' P.W. Ahmad Khan in his attempt on oath deposed that Muhammad Afzal accused exhorted Sarfaraz his co-accused that murderer of his father was proceeding, he should not be spared alive. Sarfaraz accused fired shot with his gun which hit on the right shoulder and back of his son Muhammad Azain deceased. He alongwith his companions tried to save his son. Ashraf and Amin accused threatened them that if they will come near they would also be killed. Abdul Rashid accused also fired with his gun which hit on the neck and left shoulder of his son Muhammad Azam deceased who fell down. ' Likewise P.W.3 Sakhawat Hussain in his Court statement on oath deposed that Muhammad Afzal shouted a Lalkara that the murderer of his father was going empty-handed, he should not be spared alive. The first shot was fired by Sarfaraz accused which hit on the left shoulder and back side of Azam deceased. Ahmad Khan, Intisar and he (the witness) tried to step forward, Ashraf and Amin pointed their weapons at them and threatened that they would be killed. The second shot was fired by Abdul Rashid with .12 bore gun which hit on the left shoulder, back side and neck of Azam deceased. Azam died at the spot. ' In the cross-examination of both the P.Ws. i.e. Ahmad Khan and Sakhawat Hussain theft above version was not shaken at all inasmuch as concerning the incriminating portion of their testimonies there was no sufficient impeachment. Resultantly we have to form a positive opinion that incriminating portion of the evidence is consistent, coherent, trustworthy as well as natural i.e. Free from any exaggerations. However, we may mention here that if in cross-examination intrinsic value of incriminating evidence of a witness has not been shaken his statement cannot be discarded for minor contradictions etc. Reference may be made to the case of Mushtaq alias Shaman v. The State (PLD 1995 SC 46). 11. Now turning towards the objection of the learned counsel for the appellants that the evidence of P.W. 2 is not worthy of credence as he is an interested witness. In this behalf principle of law enunciated by this Court from time to time is that merely for the reason that a witness is an interested one, his testimony will not be discarded per se for this reason but for safe administration of justice Courts are required to apply the rule of caution by seeking corroboration to the statement of a so-called interested witness on its material parts from other admissible evidence. Reference in this behalf may be made to Iqbal alias Bhalla and two others v. The State (12494 SCMR 1) and Abdul Ghafoor v. The State (2000 SCM R 919). Thus, in view of the dictum laid down by this Court from time to time discussing evidentiary value of interested witnesses in criminal cases we are persuaded to hold that unless it has not been brought on record by the defence that the involvement of accused in the case is on account of ulterior motives coupled with mala fides to ensure his conviction, evidence .So furnished by such witness cannot be discarded. In this context it is important to add that truthfulness or falsehood of a prosecution witness can be verified by making reference to other incriminating material available on record which may be in the shape of oral testimonies of co-witnesses of the incident or recovery of crime empties if they had wedded with the crime weapons used in commission of the offence and recovery has been made in accordance with law and it also connects the accused with the commission of the offence, promptly lodging report of incident, circumstantial evidence etc. It has been time and again emphasized by this Court that for safe administration of justice the Court seized with the matter may rely upon the testimony of interested witness and to satisfy its conscious firstly close scrutiny of the prosecution evidence keeping in view the attending circumstances must be undertaken and thereafter may look for independent corroboration to the testimony of interested witness and if the prosecution fulfils these tests then it should be accepted to saddle the accused with criminal liability. However, facts vary from case to case and the Court comes across to such a situation where except the evidence of a witness who is interested in the prosecution of the case either being close relative of the complainant or on account of some previous animosity between the
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parties is desirous that the accused must be punished adequately and there is absolutely no corroborative evidence available on record, therefore, in such a unique situation the responsibility of the Court increases to double and it may accept the evidence of solitary witness alone if it is trustworthy. As far as verification of the statement of a witness being trustworthy is concerned it depends upon appreciation of evidence by the Court with its clear and honest conscience. 12. As far as present incident is concerned there is no doubt that P.W. 2 Ahmad Khan is the father of Muhammad Azam, therefore, he is interested that the culprit who has done away to death to his son must be punished according to law. If we have to believe his statement alone then of course we would have to apply above tests. But besides statement of P.W. 2 there is evidence of P.W. Sakhawat Hussain who is not related to either of the party and his testimony cannot be disbelieved merely for the allegations that he belongs to the tribe of P.W. 2. We have plaeed three documents in juxtaposition i.e. F.I.R. Exh. PC and the statement of P.W. Ahmad and P.W. 3 Sakhawat Hussain. On their careful examination we have persuaded ourselves to hold that there is consistency in the prosecution case. Both the witnesses are trustworthy and they have no false reasons to involve the accused in the commission of the offence. 13. Learned counsel also contended that Intisar Hussain was an independent witness but he was not produced by the prosecution at the trial, therefore, inference may be drawn that if he would have appeared in the Court he might have disclosed true picture of the incident. The argument so advanced by the learned counsel carry no weight firstly for the reason that law governing administration of criminal justice has not cast a duty upon the prosecution to produce all the witnesses who have seen the incident because it is the quality of the evidence but not quantity which matters. Of course this object can be achieved by recording evidence of even one witness if he is trustworthy. Reference in this behalf may be made to the case of Allah Baldish v. Shammi and others (PLD 1980 SC 225). Secondly the defence is always at liberty to summon a prosecution witness who has been given up with an object to unearth true facts before the Court. Thus, on account of non-producing P.W. Intisar Hussain no adverse inference can be drawn against the prosecution for above reasons. 14. Learned counsel placed much emphasis on so-called contradictions in the ocular testimony of both the eye-witnesses as well as the medical evidence. As per his contention P.W. Dr. Muhammad Modassar had noticed blackening and tattooing around injury No.1 meaning thereby that Muhammad Azam deceased was fired upon from short distance whereas P.W. Ahmad Khan stated that assailant was at a distance of 7-1/2 Karams i.e. According to learned counsel about 42 feet. Similarly P.W. 3 Sakhawat Hussain in cross-examination disclosed that first shot hit the deceased from 7-1/2 feet or 7-1/2 Karams. The second shot was also fired hitting the deceased almost from the same distance at a variation of about 3 or 4 feet. As such according to learned counsel there is a doubt in the prosecution case as per variation in ocular and medical evidence, therefore, benefit of the same may be extended to the accused persons. ' On the other hand learned counsel for the complainant and State argued that minor contradictions as are being pointed out in the ocular and medical evidence have never been considered fatal to disbelieve the prosecution case. In addition to it Malik Saeed Hassan, learned counsel for the complainant argued that in fact in the case in hand there is no contradiction in the medical and ocular evidence because contradictions would have been if deceased Muhammad Azam has received incised wounds in place of fire-arm wounds as per the case put forward by the prosecution. ' We have attended to this aspect of the case very carefully keeping in view the medical evidence as well as ocular testimony of both the witnesses' i.e. P.W. 2 Ahmad Khan and P.W. 3 Sakhawat Hussain. Undoubtedly as per statement of P.W. Dr. Muhammad Modassar there were blackening and tatooing around the wounds noticed by him on the dead body of the deceased but to resolve
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this controversy we have referred to the opinion given by him wherein he stated in unambiguous terms that all the injuries were ante-mortem in nature and inflicted by fire-arm weapon. Thus no doubt can be allowed to prevail about not causing injuries with the fire-arm and as far as the contradictions being pointed out by the learned counsel for appellants would not be fatal for the reason that humanly it is not possible to measure exact distance in an incident where indiscriminate firing is going on. Here we also invoke another principle of law namely that medical and expert evidence is produced in support of ocular evidence by the prosecution in the criminal trial or in other words it can be said that such evidence is termed to be of confirmatory nature. Therefore, if there is any variation both in ocular and medical evidence the latter will not overweigh the former type of evidence if otherwise it is coherent and trustworthy. Reliance in support of this principle is placed on the case of Muhammad Hanif v. The State (PLD 1993 SC 895). 15. Learned counsel next contended with great…
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