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Petitioner: THE STATE and others VS Respondent: MIAN KHAN and others
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Iftikhar Hussain Butt Title: THE STATE and others vs MIAN KHAN and others Case No.: Reference No, 96, Criminal Appeals Nos.46 of 1998 and 10 of 1999 Date of Judgment:1999-12-31 Reported As: 2000 YLR 885 Result: Order accordingly
JUDGMENT
JUDGMENT ' The above entitled reference and appeals arise out of the single judgment of District Criminal Court Bhimber passed on 30-11-1998, we propose to dispose of the same by this single judgment. 2. The facts forming the background of the reference and appeals are that F.I.R., was lodged by Muhammad Kabir (P.W.1) on October 16, 1994 at 7-30 a.m. At Police Station Bhimber, wherein it was alleged that due to some domestic disputes the accused persons are not at good terms with his brother Muhammad Rafique and the parties did not meet with each others. On October 15, 1994 at 10-00 a.m. An altercation took place between the wives of Muhammad Rafique and Mian Khan, Mian Khan accused also abused who threatened that he will solve the problem for ever. On this complainant party came to know that accused persons have started collecting weapons and they want to kill them. On October 16, 1994 at 6-00 a.m. When his brother Muhammad Rafique went to answer the call of nature out of his house towards north he also followed him. His brother Muhammad Yousaf had already left for that side to answer the call of nature. While Muhammad Rafique was passing by through a field path where Ghulam Abbas and Ghulam Ghoas, accused persons armed with deadly weapons way laid, who stood up and climbed up the field path. They raised a lalkara that the deceased cannot go alive today. Ghulam Abbas accused shot a fire on Muhammad Rafique with 30 bore pistol from a close range which hit on the back side of his head who fell down. Ghulam Ghoas also fired a shot which did not hit his brother. The occurrence was witnessed by the complainant and his brother Muhammad Yousaf who was going towards his house. Ansar Ali also witnessed the occurrence. The accused fled away from the scene of occurrence towards western side. His injured brother was brought home but after a while he succumbed to his injuries. The accused persons have committed the occurrence at the instance of
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Mian Khan accused. It was also alleged that when they were bringing home his injured brother, Mian Khan accused caused firing by .12 bore gun and raised lalkaras that all of them have to be done to death. It was also stated that the accused-persons have committed the crime in a well- planned manner. 3. On this report a case was registered by Nisar Yousaf S.I. Police (P.W.9) under sections 302/34, 109 of the A.P.C., read with section 5 of Islamic Penal Laws (Enforcement) Act, 1974. Nisar Yousaf S.I. Police (P.W.9) went on the spot, examined the dead body, prepared the inquest report Exh.P.N. And sent the dead body for postmortem examination. He also prepared the injury form of the deceased Exh.P.M. And took into possession the blood-stained clay vide recovery memo. Exh.P.C. He also picked up an empty from the scene of occurrence vide recovery memo. Exh.P.D. Ghulam Abbas accused produced his 30 bore pistol, two magazines with licence which were taken into possession vide recovery memo. Exh.P.H. A .12 bore gun with a bag having 5 cartridges was also recovered vide recovery memo. Exh.P.E. From Mian Khan accused. An empty of .12 bore gun was taken into possession from the roof of the house of Mian Khan accused vide recovery memo. Exh.P.F. The blood-stained clothing of the deceased was taken into possession vide recovery memo. Exh. P.G. All the abovementioned recoveries were effected on 16-10-1994 in presence of Muhammad Yousaf (P.W.2) and Ansar Ali (P.W.3). On 16-10-1994 the statements of the eyewitnesses Muhammad Kabir (P.W.1), Muhammad Yousaf (P.W.2) and Ansar Ali (P.W.3) were recorded. The statements of Ghulam Murtaza Selection Grade Constable Police No,1877 (P.W.4) and Muhammad Khaliq Head Constable Police No,1769 (P.W.6) were recorded on 27-10-1994. A 30 bore pistol with five rounds and a licence was recovered from Ghulam Ghoas accused vide recovery memo. Exh.P.K. In presence of Ghulam Murtaza Selection Grade Constable Police (P.W.4) and Muhammad Khaliq, Head Constable Police (P.W.6) on 27-10-1994. Site plan Exh.P.I. Was got prepared by Ghulam Sarwar Patwari (P.W.5). The report of Chemical Examiner and the report. Of Forensic Science Laboratory were also obtained by Nisar Yousaf S.I. Police (P .W .9). 4. The post-mortem report Exh.P.L. Revealed that the deceased died due to direct fire-arm injury on back of skull. The accused-persons were apprehended and after completion of the investigation they were forwarded to District Court of Criminal Jurisdiction Bhimber for facing their trial. The accused-persons in their statements under section 242, Cr.P.C., denied the guilt. In order to prove its case against the accused-persons, the prosecution produced Muhammad Kabir (P.W.1), Muhammad Yousaf (P.W.2), Ghulam Murtaza Selection Grade Constable Police (P.W.4), Ghulam Sarwar Patwari (P.W.5), Dr. Muhammad Anwar (P.W.7), Khurshid Hussain S.P. (P.W.8) and Nisar Yousaf S.I. Police (P.W.9). The accused-persons in their statements under section 342, Cr.P.C., denied the allegations and did not desire to produce the defence evidence. The Trial Court after the conclusion of trial having found Ghulam Abbas appellant-accused guilty and awarded him sentence of 'Qissas' on the liability of the murder of Muhammad Rafique. While Mian Khan and Ghulam Ghoas accused-respondents having found not guilty by giving them benefit of doubt acquitted them vide its judgment, dated 30-11-1998. The aforesaid judgment has been assailed by Ghulam Abbas appellant-convict to set aside the same and to acquit him whereas by the complainant party to award sentence of 'Diyat' alongwith sentence of 'Qissas' to Ghulam Abbas and also for conviction of Mian Khan and Ghulam Ghoas respondents-accused. 5. Mr. Muhammad Sharif Tariq, the learned counsel for the complainant-appellants, raised the following points to ornament his arguments:-- (1) That the F.I.R., was lodged well in time. (2) That the accused-persons are clearly nominated in F.I.R., and the role attributed to them has been specifically mentioned therein. (3) That the prosecution case has been amply proved by the ocular evidence.
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(4) That the mere relationship of the eye-witnesses does not discredit their testimony and for the abundant caution the corroborative evidence was also produced. (5) That the recovery of deadly weapons from the accused-persons and other sufficient incriminating evidence was produced for the purpose of corroboration, which was rightly relied upon by the Court below. (6) That the prosecution story is natural and probable. (7) That the Nisab-e-Shahadat is complete and the eye-witnesses were also found 'Adil'. (8) That the preconcert and participation of co-accused, Ghulam Abbas and Mian Khan, in the occurrence, has been proved by the prosecution but no plausible or convincing reasons have been recorded by the Trial Court for their acquittal. (9) That if the case does not come in the purview of, constructive liability of the co-accused persons, Ghulam Abbas-accused can safely be sentenced for attempt to murder. (10) That in the light of the prosecution evidence, the conviction and sentence of 'Qissas' be maintained and sentence of 'Diyat' may also be awarded to Ghulam Abbas and the co-accused Ghulam Ghoas and Mian Khan may also be sentenced under law. 6. The learned counsel for the complainant-appellants referred to the following case-law in support of his contention:--- (i) PLD 1979 SC (AJ&K) 23. (ii) PLD 1981 SC 637. (iii) PLD 1983 SC (AJ&K) 211. (iv) 1983 PCr.LJ SC (AJ&K) 761. (v) PLD 1988 SC (AJ&K) 207. (vi) 1992 PCr.LJ (Shariat Appellate Court) 604. (vii) 1993 PCr.LJ 2158. (viii) PLD 1993 Peshawar 109. (ix) 1997 SCM R 373. 7. Mr. Muhammad Mushtaq Ch. The learned counsel for the State supported the conviction and sentence and argued that the ocular evidence was corroborated by the recovery evidence. 8. The learned counsel for the appellant-convict and for the accusedrespondents, Mr. Abdul Majeed Mallick, vigorously contended the following points:--- (1) That the alleged incident of murder took 'place in the earlier hours of the morning, outside the village and it is an unseen occurrence. (2) The F.I.R., was delayed and the time given in it was incorrect. The F.I.R., was admittedly destroyed and the second report was prepared, to rope-in the accused-persons. (3) That the prosecution witnesses are real brothers of the deceased, who are related, interested and inimical. Thus, their testimony cannot be accepted without its independent corroboration. (4) That the ocular testimony was contradicted by the medical evidence and the surrounding circumstances of the case. (5) That the alleged recovery of deadly weapons and crime empty, was fabricated and was not proved by trustworthy evidence. The licence of the accused and magazine were not produced in the Court and pistol produced in the Court was without number. (6) That the site-plan purported to be prepared by the 'patwari', was fake and fabricated which does not reflect the point and the position of the assailants and the distance between victim and assailants. (7) That the place of occurrence disclosed in the inquest report was in conflict with the place of occurrence described in the site-plan. (8) That the Trial Court fell in error in ignoring and over looking the material contradictions and conflicts in the prosecution case.
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(9) That the prosecution led identical and same evidence against the three accused but the Trial Court disbelieved the prosecution evidence to the extent of Mian Khan and Ghulam Ghoas and convicted the appellant-Ghulam Abbas by relying upon the same false, conflicting, interested and inimical evidence of prosecution. (10) That the prosecution failed to prove its case beyond the reasonable doubt but trial Court did not consider the inherent weaknesses, loop-holes and lacunas pointed out in the prosecution evidence by the defence. (11) That the appellant-convict is innocent who has not committed the alleged murder, therefore, the impugned order be set aside, the appellant-convict be acquitted, and the order of acquittal to the extent of other respondents be upheld. 9. In support of his contention, the learned counsel for the accused-persons has cited the following authorities:--- (i) PLD 1963 SC 25 and 40. (ii) PLD 1963 (W.P.) Karachi 891. (iii) PLD 1984 (Sh.C. AJ&K) 2. (iv) PLD 1989 SC (Shariat Appellate Bench) 633. (v) PLD 1989 Sh. C. (AJ&K) 1. (vi) PLD 1990 Sh. C. (AJ&K) 3. 10. I have given my due consideration to the above respective contentions of the learned counsel for the parties in the light of the facts and circumstances of the case and the law applicable to it. At the very out-set it will be relevant to point out that F.I.R., was lodged well in time which contains all the relevant facts. The accused-persons are clearly nominated therein and the role attributed to them has also been specifically mentioned. It does not appear from the prosecution evidence that either the alleged incident of murder took place in the earlier hours of the morning, outside the village or it is an unseen occurrence because the murder was witnessed by eye-witnesses and their evidence is convincing and confidence inspiring. Furthermore, the ocular version of the prosecution has not only been testified by the medical evidence that also by other sufficient corroborative material. 11. I may observe here that there is also no chance of false implication of the accused persons in the case because there is no background of any heinous or grave animosity between the parties and the motive behind the commission of the crime, as set up by prosecution, is only an altercation between the wives of deceased and Mian Khan accused-respondent and some other domestic disputes on the basis of which the parties were not at good terms. On careful consideration of the point it is found that there is nothing in the evidence that the accused-party did anything against the complainant party which might have created ill will and enmity in the minds of the complainant party against the accused party. Therefore, and enmity was on the side of accused party rather than on the side of complainant party. 12. The learned counsel for the accused-persons much emphasized that according to the inquest report Exh.P.N., at a.m. The police came to know that deceased was murdered which means that deceased was done to death at 4-00 a.m. Or 5-00 a.m. In support of his argument, he also referred post-mortem report Exh.P.L. And contended that the time of post-mortem has not been recorded and according to the post-mortem report, the time which elapsed between death and post- mortem is four to six hours, which means that post-mortem was also done in the morning and proves that it is a case of unseen occurrence, where the dead body was found and the deceased was killed in the early hours of the morning. I see no force in this argument because the time of occurrence has been clearly mentioned in F.I.R. Exh.P.A. As 6-00 a.m. It also transpires from document Exh. P.B. That the occurrence took place at 6-00 a.m. And it was reported at 7-00 a.m. As for as the time of occurrence, as described in column 3 of inquest report Exh.P.N. Is concerned, it
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deals with the time and date of the death and not the time and date of the fact, when the police was informed about death of the deceased. In this respect the statement of Nisar Yousaf S.I. Police (P.W.9) can be referred whereby he deposed as under:-{{URDU TEXT}} 13. Although the time of the examination of the dead body, at the time of post-mortem was inadvertently not written by Dr. Muhammad Anwar (P.W.7), as stated by him but it appears from the prosecution evidence that post-mortem was done within 4 to 6 hours of the death of the deceased. All these facts corroborate the prosecution version. 14. The learned counsel for the defence has next contended that according to the F.I.R., the occurrence was witnessed by two real brothers of the deceased but no independent witness was produced for the corroboration of the testimony of the interested witnesses. As against this, the learned counsel for the complainant and the learned Additional Advocate-General has pointed out that witnesses were found 'Adil' in purgation (URDU TEXT) and no material contradiction was found in their statement even after the lengthy cross-examination by the defence. Therefore, the fact of relationship does not effect the capability of the eye-witnesses who were positive and numinous about the commission of the crime. In this respect, numerous authorities were cited by the learned counsel for the parties. In this regard, the basic authority in Azad Jammu & Kashmir is PLD 1979 SC (AJ&K) 23, wherein it was opined that the mere fact of witnesses being related inter se or to the deceased is not sufficient to discredit their testimony outright, if otherwise such witnesses are found to be witnesses of truth. But where the witnesses are found to be interested and inimical in sense of having a motive to falsely implicate innocent persons from the other party, the Court should be on guard and to cautiously look for some supporting circumstance in order to eliminate the chances of false implication. 15. In the case of Niaz Muhammad alias Jaja and another v. The State (PLD 1983 SC AJ&K 211), the evidence of interested witnesses was relied upon and it was held that conviction can be based on evidence of even interested witnesses provided of course it is otherwise of convincing quality, while considering such evidence Court would conduct its appraisal with utmost care and caution and in case of safe reliance further confirmatory evidence is not necessary. 16. In the case of Muhammad Sharif Khan v. The State (PLD 1988 SC (AJ&K) 207) it was observed that corroboration of direct evidence may not be asked for when such ocular testimony comes from an independent source but evidence of related, interested inimical and otherwise little trustworthy witnesses would ordinarily need its corroboration from an impartial source. 17. In the case of Abdul Hakeem v. The State and two others (PLD 1990 Sh.C. AJ&K 3), it was laid down that it is essential to seek the independent corroboration of ocular evidence of interested and inimical witnesses before basing the conviction of the accused of such evidence. 18. In the case of Muhammad Amin v. The State (1992 PCr.LJ (Sh.C. AJ&K) 604) it was held that the testimony of closely related, interested and inimical witnesses is to be appraised carefully. In order to record conviction, it was expedient to find independent corroboration for such evidence. 19. In Muhammad Khalil v. The State (1992 SCR 249), the view expressed by the Court is that the mere fact that the witnesses are related to the deceased is not sufficient to discard their testimony, especially so when they have not been shown inimical to the accused. 20. Abrar Hussain Shah v. The State (1992 SCR 294) lays down the rule that the testimony of a prosecution witness cannot be discarded merely on the ground that he is related to the deceased or the complainant. It may be stated that if the witnesses are related not only to the complainant but also to the accused closely, the corroboration of their statements by independent evidence cannot be insisted upon especially so when they are otherwise found trustworthy. 21. In Pakistan jurisdiction the basic authorities for this view are PLD 1963 SC 25 and PLD 1963 SC 40, referred by the learned counsel for the defence which have been followed and referred to in Mehtab Khan's case (PLD 1979 SC (AJ&K) 23) and again in Bacho's case (PLD 1963 (WP) Karachi
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891). In Shaukat Javaid's case (PLD 1993 Peshawar 109). It was laid down that relationship of eye- witnesses with the deceased per se could not militate against their credibility who had no animus to falsely implicate the accused. 22. In Abdul Rashid's case (1997 SCM R 373) it was opined that the eye-witness cannot be termed as interested if he is related to the deceased but it must be proved that he has no motive to falsely implicate the accused. 23. In Mir Hassan and others v. The State and others (1999 SCM R 1418) the Supreme Court of Pakistan laid down the following principles for appreciation of evidence of an interested witness, who claims to be the eye-witness of an occurrence:- "Before considering the above contentions on merits, it would be appropriate to state here first, some of the broad legal principles enunciated by this Court which should be kept in mind while deciding a case involving capital punishment. One such principle is that, if an interested witness claiming to be an eye-witness charges a person with the commission of an offence, the first thing which the Court has to determine is, whether he saw the occurrence and was in a position to identify the accused and secondly whether he should be believed to convicting the offender without corroboration. If the interested witness has charged only one person with the commission of offence or has charged more than one person and the number of persons charged by him appear to be reasonable from the circumstances of the case, then in the absence of anything in the evidence which rendered it unsafe to rely on his evidence, his evidence is to be accepted without corroboration as substitution is a thing of rare occurrence and cannot be assumed readily and he who asserts substitution must lay foundation for it. But if the Court finds that the interested witness has exaggerated the number of accused, the Court will insist for corroboration of his testimony from some additional circumstances in the case. (See Niaz v. State PLD 1960 SC 387). The next question arises, in what manner the corroboration to the testimony of the interested witness is to be sought by the Courts before relying on it for conviction. The corroboration to the testimony of an interested witness need not always be from an independent witness supporting the story put forward by the interested witness. Corroboration my be sought from any circumstance in the case which would satisfy the mind of the Court that the witness has spoken the truth. What would be these circumstances is not possible to lay down with precision as these would vary from case to case according to the facts and circumstances of each case. Corroboration in the case of an interested witness need not be of the same probative force as in the case of an accomplice (see Nazir v. State PLD 1962 SC 269)". "An interested witness in a criminal case is one, who has motive to involve the accused falsely in the case. Therefore, mere friendly relation or relationship of the witness with the deceased or complainant party is no ground to discard his evidence describing him as an interested witness (see Iqbal alias Bhala v. State 1994 SCM R 1)." 24. From the survey of a fore quoted case law, it would be Evident that during the last more than four decades the superior Courts in Azad Jammu and Kashmir and Pakistan have been consistently emphasizing that the evidence of interested witnesses cannot be refused always because of mere relationship and conviction can be based on evidence of even interested witnesses if the evidence is convincing, truthful and confidence .Inspiring but for the sake of abundant caution the appraisal of such evidence must be conducted with care and caution. A corroboration is insisted upon only to satisfy the mind of the Court that the witnesses are speaking truth in peculiar facts and circumstances of the case. 25. In the present case the complainant has exaggerated the number of the accused persons. Muhammad Kabir (P.W.1) and Muhammad Yousuf (P.W.2) are real brothers of the deceased and also inter-related, therefore, in the light of the abovementioned dictum of Supreme Court of Pakistan, it will be necessary as an abundant caution that some confirmatory and corroborative
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evidence be looked for. I may note here that no infirmity or inherent defect has been pointed out and the evidence of eye-witnesses rings true on material particular of the case. 26. I may resolve here some objections of the learned counsel for the defence, whereby he pointed out that Muhammad Kabir (P.W.1) did not state about raising of 'Lalkara' by the accused-persons but Muhammad Yousuf (P.W.2) deposed in his statement that the accused-persons had also raised 'Lalkara'. It is also agitated that Muhammad Yousuf (P.W.2) stated that the accused-persons had threatened them that nobody can come closer but Muhammad Kabir (P.W.1) did not depose in like-manner. The above discrepancies in the statement of prosecution witnesses do not render the ocular version as false or conflicting because these are the minor discrepancies which do appear in the statements of the prosecution witnesses in the normal course of life and it appears that the P.Ws. Are riot parrot like well-tuned. As it has been recorded above, the eye-witnesses are firm, positive and conclusive upon material particulars of the case and their ocular version is convincing truthful and confidence inspiring. It may be pointed out that the defence has admitted the presence of the P.Ws. Son the spot by way of suggestion put to them in their cross-examination. 27. Now, I advert to another objection raised by the learned counsel for the defence that F.I.R., was destroyed and second report was prepared. Suffice to say that it was clarified by Muhammad Kabir (P.W.1) in his statement that when he came to know about the death of his brother he tore out the first report and lodged F.I.R. Exh.P.A. Hence the objection is repelled. 28. Coming to the next point, the learned counsel for the defence argued that the prosecution led identical and same evidence against the three accused-persons but the Trial Court disbelieved the prosecution evidence to the extent of Mian Khan and Ghulam Ghoas accused and convicted the appellant by relying upon the same evidence of prosecution. Controverting the submission, the learned counsel for the complainant and learned A.A.-G. Argued that the prosecution has proved its case beyond reasonable doubt but the Trial Court was mistaken to appraise the prosecution evidence to the extent of Mian Khan and Ghulam Ghoas, accused. Therefore, these accused may also be sentenced. After going to the merits of the submissions made by the learned counsel for the parties, I would like to state that the accused Mian Khan has not been attributed to shot a fire upon the deceased. According to F.I.R. And Muhammad Kabir (P.W.1) when the complainant party was carrying the injured Muhammad Rafique, Mian Khan accused shot fires and raised 'Ialkaras' but Muhammad…
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