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Petitioner: MUHAMMAD HANIF alias FOUJI VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Sayyed Mazahar Ali Akbar Naqvi, Syed Shahbaz Ali Rizvi Title: MUHAMMAD HANIF alias FOUJI vs The STATE Case No.: Criminal Appeal No,2114 and Murder Reference No,254 of 2009 Date of Judgment:2015-02-10 Reported As: 2017 YLR 543 Result: Appeal accepted
JUDGMENT
JUDGMENT ' SYED SHAHBAZ ALI RIZVI, J.-- -This judgment shall dispose of Criminal Appeal No,211-J of 2009 titled as Muhammad Hanif alias Fouji v. The State filed by Muhammad Hanif alias Fouji against his conviction and sentence and Murder Reference No,254 of 2009 titled as The State v. Muhammad Hanif transmitted by the learned trial court for confirmation or otherwise of the sentence of death awarded to Muhammad Hanif alias Fouji (appellant), as both these matters have . Arisen out of the same judgment dated 20.05.2009 passed by the learned Addl. Sessions Judge, Kasur in case FIR No,747 dated 03.12.1999, offence under Sections 302 and 34, P.P.C. Registered at Police Station Saddar Kasur District Kasur whereby, the appellant was convicted under Section 302(b), P.P.C. And sentenced to death with the direction to pay Rs,1,50,000/-, as compensation to the legal heirs of Muhammad Sharif (deceased) as envisaged under Section 544-A of the Code of Criminal Procedure, 1898 and in default thereof to undergo simple imprisonment for six months. ' It is pertinent to mention here that earlier the learned trial court convicted the appellant vide judgment dated 26.06.2002 and sentenced to death which was challenged before this Court through Crl. Appeal No,280 -J of 2002. A learned Division Bench of this Court while hearing the said appeal remanded the .Case to the learned trial court vide order dated 12.02.2009 for rewriting of the judgment. The learned trial court after hearing the arguments passed fresh judgment on 20.05.2009, hence, this appeal. 2. Brief facts of the case, as disclosed by Muhammad Babar, complainant (PW-8), in his statement (Exh-PF) on the basis of which formal FIR (Exh-PF/1) was registered, are that his father Muhammad Sharif (deceased) was a lawyer in Kasur Katchery whereas, he was a student having residence in Faqiriyawala. On 03.12.1999, he did not go to school due to sickness. His mother (Mst. Nasreen
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Begum PW12) along with Abdul Qayyum (PW-15) had gone to Kasur on motorcycle whereas, Muhammad Rasheed (given up PW) and Muhammad Ramzan (PW-11) were sitting with his father in their baithak having chit chat. At about 09.15 a.m., Tanveer, accused (since acquitted) came there and asked his father Muhammad Sharif (deceased) to hear his mother before goicig to Katchery. His father (Muhammad Sharif deceased) had' opposition with Muhammad Hanif (appellant) due to party faction who had got registered a false case of theft against his father (deceased) and the mother of Tanveer, accused (since acquitted). On receiving the message, his father immediately went to the house of Mst. Balqees along with Tanveer, accused (since acquitted) who did not return for some time whereupon, due to suspicion, he along with Muhammad Rasheed (given up PW) and Muhammad Ramzan (PW-11) went to the house of Mst. Balqees. When they just reached near the shop of one Muhammad Arif, his father met them in injured condition. Meanwhile, Tanveer, accused (since acquitted) armed with .32 bore revolver, Muhammad Hanif (appellant) armed with Chhura, Amjad (since acquitted) and Khalil (since acquitted), opening the outer door of the house of Mst. Balqees, came out and moved towards the metalled road. He along with Muhammad Rasheed (given up PW) and Muhammad Ramzan (PW11) brought his father to his house and administered him some water who told them that Tanveer Ahmad, Amjad and Khalil accused persons caught hold of him whereas, Muhammad Hanif (appellant) inflicted him injuries with Chhura but he after scaling over the wall rescued himself. Due to precarious condition of his father, they were taking him to DHQ Hospital in the car. Meanwhile, Mst. Balqees alias Foujin was standing outside her house and at the same place, his (complainant's) mother along with Abdul Qayyum (PW-15) met them on motorcycle who told that Tanveer armed with revolver, Muhammad Hanif armed with Chhura, Amjad and Khalil ran after them while raising lalkaras that they had finished Sharif and his family be also killed but they saved their lives. They took the injured to hospital who succumbed to the injuries on the way. ' The motive behind the occurrence, as disclosed by the complainant in the FIR (Exh-PF/1), was previous enmity. The complainant further alleged that afterwards, to create false defence, the accused persons caused injuries to Mst. Balqees. 3. Muhammad Hanif alias Fouji (appellant) was arrested in this case on 21.12.1999 by Ashfaq Hussain Kazmi, Inspector (PW-16) who, on 26.12.1999, while in police custody, after making disclosure, got recovered Chhuri (P-6), which was taken into possession vide recovery memo Exh- PH. After completion of investigation, the challan was prepared and submitted before the learned trial court. The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused (since acquitted) on 12.12.2001, to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution produced as many as sixteen witnesses, during the trial. Muhammad Babar (PW-8) is the complainant of the case. He along with Muhammad Ramzan (PW-11) is also the witness of dying declaration allegedly made by the deceased. Muhammad Mukhtar (PW-5) and Muhammad Ashiq (PW7) furnished the ocular account of the occurrence. Mukhtar Ahmad (PW-5) and Shaukat Ali (PW-10) are the witnesses of alleged recovery of crime weapon at the- instance of the appellant. Mst. Nasreen Begum (PW-12) and Abdul Qayyum (PW- 15), were also threatened by the appellant and his co-accused after the occurrence. ' The medical evidence was furnished by Dr. Tariq Bashir (PW6) who gave secondary evidence on behalf of Dr. Arshad who conducted the post mortem examination on the dead body of deceased Muhammad Sharif. ' Ashfaq Hussain Kazmi, Inspector (PW-16) is the Investigating Officer of this case. Muhammad Nasrullah, Draftsman (PW-3) prepared scaled site plan of the place of occurrence whereas, rest of the witnesses are formal in nature.
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5. Learned prosecutor gave up Dr. Arshad PW having gone to Saudi Arabia whereas, Rasheed Ahmad PW was given up being unnecessary and after tendering in evidence reports of Chemical Examiner (Exh-PP & Ex-PQ), reports of Serologist (Exh-PR & Exh.PS) and that of Forensic Science Laboratory (Exh-PT), closed the case for prosecution. 6. The statement of the appellant, under Section 342 of the Code of Criminal Procedure, was recorded. He refuted the allegations levelled against him and professed his innocence qua the infliction of injury to the deceased. While answering to a question that "Why this case against you and why the PWs have deposed against you?", the appellant replied as under:-- "Deceased Sharif was my relative, who started frequently to visit the house of my Bhabi Balqees Bibi, mother of my co-accused Tanveer Ahmad (Juvenile) and widow of my brother Ahmad Din (since dead) after two years of the death of my brother. The deceased Muhammad Sharif developed illicit relations with my Thabi' Balqees and my nephew Tanveer Ahmad complained me in this context but I suggested him that you and your mother can control deceased Muhammad Sharif and I decline my invervention. Tanveer Ahmad (Juvenile) co-accused also complained me that his fallows used to taunt, but I again decline to support him. ' On the day of occurrence I was doing my job in the shop, whereas my co-accused Tanveer Ahmad (Juvenile) was sitting outside the shop, who informed me that the deceased Sharif had again come in his house, I while suggesting him that he himself could kill the deceased Sharif out of all and restrained him to keep myself away. Tanveer (Juvenile) co-accused also said that he had been restraining the deceased Sharif from visiting of his house but he did not and I advised not to kill Muhammad Sharif deceased. Thereafter I and Tanveer Ahmad entered into the Haveli of the house of occurrence, there deceased and Mst. Balqees were found in embracing condition in front of the Bathroom. They were kissing to each other. Tanveer Ahmad (Juvenile) co-accused on seeing the deceased Sharif and Balqees Bibi in lapha' flared up and took out a Chhuri from the folding of his Shalwar, whereas I took out 32 bore Revolver. The deceased Muhammad Sharif at the relevant time tried to scale over the wall to rescue himself from the murder. However, he was overpowered by co-accused Tanveer Ahmad (Juvenile) and inflicted Chhura blows to the deceased Muhammad Sharif. Meanwhile Mst. Balqees grappled with me and I gave consective shots to her, resulting injuring her, and she fell down on the ground there. Meanwhile Tanveer (Juvenile) co- accused came to me and told that he had finished Sharif deceased. Chhuri P6 was blood stained. Afterwards I and my co-accused Tanveer (Juvenile) sheltered in my shop out of fear from the complainant party who an influential one. The police also arrested me and my co-accused Tanveer from my shop, whereas Tanveer Ahmad handed over two photographs of Mat. Balqees along with the deceased Muhammad Sharif. We also informed the I.O. That the deceased Muhammad Sharif was a womalisor having bad character, who developed illicit relations with Mst. Balqees Bibi and Tanveer Ahmad co-accused had Murdered the deceased Sharif out of Ghairae. ' I also informed the police that I had no relations with my co-accused Amjicl Ali and Khalil with whom we have litigations. ' All the PWs are inter se related and interested witnesses who have deposed falsely against me due to the pressure of Muhammad Hariif Civil Judge, brother of deceased Sharif who had great influence in the local area." 7. The appellant neither opted to give evidence on oath as provided under Section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against him nor did he produce evidence in his defence. 8. The learned trial court vide its judgment dated 20.05.2009, found the appellant guilty, convicted and sentenced him as mentioned and detailed above. 9. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case; that the occurrence was not witnessed by anybody; that the alleged eye-witnesses are
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chance witnesses and are not reliable; that there is delay of more than twenty-four hours in conducting the post mortem examination on the dead body of the deceased which falsifies the stance of the prosecution; that the alleged recovery of Chhuri (P-6) at the instance of the appellant is doubtful as the same was allegedly effected after twenty-three days of the occurrence; that motive has not been proved by the prosecution; that the prosecution evidence has been disbelieved qua the acquitted co-accused of the appellant and the conviction of the appellant cannot be based on the same evidence until and unless there is strong independent corroboration but no such corroboration is available in this case; that prosecution could not prove its case against the appellant beyond any shadow of reasonable doubt; that this appeal may be accepted, the appellant may be acquitted and the Murder Reference may be answered in the negative. 10. Learned Deputy District Public Prosecutor assisted by learned counsel for the complainant opposes this appeal and contends that the appellant is nominated in promptly lodged FIR; that both the eyewitnesses have explained their presence at the place of occurrence at the' relevant time and they are not the chance witnesses; that the prosecution case is fully corroborated by the medical evidence and the evidence of recovery of Chhuri at the instance of the appellant; that the prosecution case is further corroborated by the evidence of motive; that the case of the acquitted accused persons is distinguishable from that of the appellant as they were not assigned any injury on the person of the deceased; that the prosecution case also finds corroboration by the dying declaration made by the deceased in front of the witnesses; that the occurrence has been admitted by the appellant though with the different stance; that the prosecution has fully proved its case against the appellant; that this appeal may be dismissed and Murder Reference may be answered in the affirmative. 11. We have heard the arguments of learned counsel for the appellant, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant and also gone through the record with their able assistance. 12. The case of the prosecution mainly hinges upon the testimony of Muhammad Mukhtar (PW-5) and Muhammad Ashiq (PW-7). We have noticed that both these witnesses are not the residents of the area where this occurrence took place. Admittedly, Muhammad Mukhtar (PW-5) and Muhammad Ashiq (PW-7) are residents of Taragarh and Shabbar, situated at a distance of 14/15 and 16/17 kilometers, respectively from the place of the occurrence that took place in village Fiqiriyawala. The reason advanced by them for their presence at the place of occurrence that they went to meet one Abdur Rehman to recover money regarding sale of potatoes who could not meet them, upon which, they returned and stopped at the shop of the appellant to purchase cigarettes and after hearing, noise, they entered into the house of occurrence through window present in the wall of shop and witnessed the occurrence, is not plausible. To substantiate their stance, said Abdur Rehman was neither produced before the police nor the learned trial court to establish their presence at the place of occurrence. No independent corroboration is available to the story of said eye-witnesses. Furthermore, after witnessing the alleged occurrence, the behaviour of Mukhtar Ahmad (PW-5) and Muhammad Ashiq (PW-7), as narrated by them, is quite unnatural. The place of occurrence is, admittedly, situated in an inhabited area. Both the witnesses, during cross- 'examination, have stated that after coming out from the shop, they did not raise any alarm or hue and cry to inform or, attract the inhabitants of the vicinity to the place of occurrence rather they stated that they went to Katchery. Mukhtar Ahmad (PW-5), during' his cross-examination has stated that on their way to Katchery, they sat in a tea shop for about thirty or forty-five minutes. Even after reaching the Katchery, they did not inform anybody about the occurrence except Abdur Rehman. The above portrayed behaviour of the eye-witnesses is highly improbable and unnatural. In view of above discussion, we are of the view that Muhammad Mukhtar (PW-5) and Muhammad
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Ashiq (PW-7) could not explain and justify the reason of their being present at the place of occurrence at the relevant time and are chance witnesses. In this view of the matter, as the statements of the "-witnesses are not believable and appealing to the mind, being improbable and unnatural, the same cannot be relied upon to maintain the conviction of the present appellant as is held by the Hon'ble Supreme Court of Pakistan in the case of Haroon alias Harooni v. The State and another (1995 SCM R 1627) wherein, the Hon'ble Supreme Court was pleased to observe as under:-- "9. ...Since the facts of the two cases seldom coincide, therefore, no hard and fast rule for the appreciation of evidence can be laid down. The general rule, however, is that the statement of a witness must be in consonance with the probabilities, fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent man. If these elements are present, then the statement of worst enemy of an accused may be accepted and relied upon without corroboration, but if these elements are missing, then statement of a pious man may be rejected without second thought." ' Same view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Saleem v. The State (2010 SCM R 374). Both the said witnesses are also discrepant with each other and with the contents of FIR (Exh-PF/1). A material discrepancy between the two eye-witnesses qua the actual occurrence has been noticed as Muhammad Mukhtar (PW-5) during his cross-examination has mentioned as under:-- "...The deceased Sharif Advocate was then sitting in northern eastern side of the window..." ' While regarding the same fact Muhammad Ashiq (PW-7) replied as under:-- "...Sharif deceased was made to sit on the southern side from the window..." ' In the same way, Muhammad Mukhtar (PW-5) did not see any tree in the house of occurrence while Muhammad Ashiq (PW-7) claims that there were three trees in the courtyard. Moreover, in the FIR, it is the case of the prosecution that the occurrence took place at 09.15 a.m. Whereas, according to Muhammad Mukhtar (PW-5), they reached the house of Abdur Rehman, from whom they went to receive money, at 9/9.15 a.m. Whereas, Muhammad Ashiq (PW-7), during his cross- examination, has stated that they reached the house of said Abdur Rehman at about 09.00 a.m. It is not humanly possible that a person, at the same time, could be present at two places. The above material contradiction also creates doubt in the veracity of their statements and makes them unreliable. They have also made dishonest improvements in their previous statements recorded under Section 161 of the Code of Criminal Procedure, 1898. They were duly confronted and the dishonest improvements made by them were brought on the record. It is by now well established principle of law that a witness who materially improves his statement, is not worthy of reliance. We have also noticed that both Muhammad Mukhtar (PW-5) and Muhammad Ashiq (PW-7) have specifically nominated all the accused by name with parentage with specific role in their statements recorded under Section 161 of the Code of Criminal Procedure, 1898 while it is admitted fact that the accused persons especially Tanveer, Amjad and Khalil were common village dwellers, previous acquaintance of whom has not even been claimed by the witnesses which creates doubt regarding the probity of their statements. Similarly, confused replies by Muhammad Mukhtar (PW- 5) during the cross-examination have also been observed by us and it would be advantageous to reproduce the same portions of his statement when he was cross-examined by the appellant himself as under:-- "...The door of your shop is in eastern side. The door of shop was probably in middle. Volunteered, I do not remember exactly...I did not see any tree in the house of occurrence. Volunteered, I do not remember as there was any tree or not. I did not see as to whether Sharif deceased was then wearing Shalwar Qamiz or shirt Chadar. I had not seen as to what kind of clothes were worn by you at the relevant time...I saw deceased Sharif advocate on that very day.
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' Previously Sharif Advocate deceased was somewhat known to me. Volunteered, I had seen him in the Kachehry..." ' This confusion and double mindedness of the witness leads us to doubt his truthfulness. Even otherwise, entering into the house of unknown person through the window by a traveler especially when the house is situated in a populated village, having houses and shops around, is not believable narration furnished by the witnesses. There is another important aspect of the case that co-accused of the appellant namely, Tanveer, Amjad Ali and Khalil have already been acquitted. Tanveer accused was assigned the role of calling the deceased from his house and was shown at the time of occurrence armed with .32 bore pistol which was allegedly recovered from him during the course of investigation while Amj ad caught hold of deceased from right hand and Khalil accused was holding him from left arm when the appellant gave Chhura blow. In this view of the matter, we are of the view that the evidence which has been disbelieved qua the acquitted co- accused persons cannot be believed against the appellant until and unless there is strong independent corroboration available against D him but the same is lacking in this case. Guidance in this regard is respectfully sought from the case of Sheral alias Sher Muhammad v. The State (1999 SCM R 697) wherein, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "8. ...It is a well-settled proposition of law that when the eye-witnesses are disbelieved qua majority of the accused material corroboration is required to accept their testimony against the other accused..." ' Similarly, the Hon'ble Supreme Court of Pakistan in the case of Akhtar Ali and others v. The State (2008 SCM R 6) was pleased to observe as under:-- "5. ...It is a settled law that eye-witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration. See Ghulam Muhammad's case PLD 1975 SC 558, Sheral alias Sher Muhammad's case 1999 SCM R 697 and Ata Muhammad's case 1995 SCM R 599. It is also a settled law that credibility of the ocular evidence is not divisible..." ' Same view was reiterated in the cases of Muhammad Akram v. The State (2012 SCM R 440), Muhammad Ali v. The State (2015 SCM R 137) and Ali Sher v. The State (2015 SCM R 142). ' There is another aspect of the case that Mst. Balqees Bibi in whose house the occurrence took place also moved an application (Exh-PO) to the police for registration of case supporting the prosecution story. She further alleged that after the death of Muhammad Sharif (deceased) at about 10.30 a.m.; in connivance with her son Tanveer, accused (since acquitted), one Muhammad Majeed and her Dewer Muhammad Hanif (appellant) made firing at her with their respective pistols. Muhammad Majeed made first fire which landed above her chest on the neck. Then Muhammad Hanif (appellant) made three fire shots which landed on left side of front of chest, left shoulder and left arm. Muhammad Hanif (appellant) asked her that they made fire shots at her to level the case. We have observed that the prosecution has not produced Mst. Balqees Bibi before the learned trial court to substantiate this stance. Even Muhammad Ramzan and Mst. Chiragan Bibi, brother and mother of said Mst. Balqees Bibi, who have been shown as witnesses to the said incident, have not been produced before the learned trial court. Even no medico-legal report of Mst. Balqees Bibi is available on record. In this view of the matter, we are of the view that said application allegedly moved by. Mst. Balqees Bibi is of no help to the prosecution case. ' The prosecution has also withhold another eye-witness Muhammad Ashraf as is evident from the following part of the statement of Ashfaq Hussain Kazmi, Inspector (PW-16), the Investigation Officer, who at page 78 of the paper-book has replied as under:-- "Q. By learned defence counsel. ' Whether Muhammad Ashraf was eye-witness of the incident?
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' Ans. I can so tell after looking into the file. PW is so permitted. ' After consulting the file PW stated that Muhammad Ashraf was an eye-witness of the occurrence. Volunteered he is so mentioned in the inspection note. ' I have not mentioned his name in the dander of witnesses. It is incorrect to suggest that I have not mentioned his name in the calander of witnesses because he was not willing to support the prosecution version. " ' This leads us to draw inference against the prosecution as is envisaged under Article 129(g) of the Qanun-e-Shahadat Order, 1984. All the supra discussed facts of the case lead us to hold that no judicial certainty can be attached to the presence of the witnesses Muhammad Mukhtar (PW-5) and Muhammad Ashiq (PW-7) at the relevant time and the ocular account furnished 'by them doubtful, that renders their testimony untrustworthy, hence is not to be relied upon. Reliance in this respect is placed on the case of Basharat and another v. The State (1995 SCM R 1735) wherein, the Hon'ble Supreme Court was pleased to observe as under:-- " 9 . ...There is no judicial certainty or circumstantial guarantee about the presence of the eye- witnesses on the spot. On the other hand, there are cogent reasons to doubt that the eyewitnesses were present on the spot and seen the occurrence. So, there is no option but to exclude the ocular evidence from consideration." 13. As per prosecution case, occurrence of this case took place at 09:15 a.m. On 03.12.1999, the matter was reported to the police at 11:00 a.m. And the FIR (Exh-PF/1) was registered at 11.20 a.m. On the same day, whereas distance between police station and the place of incident, as per relevant column of FIR, is ten kilometers…
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