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Petitioner: JAVAID AZAM and 2 others VS Respondent: MUHAMMAD SALEEM and 10 others
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Sardar Said Muhammad Khan, Syed Manzoor Hussain Gillani Title: JAVAID AZAM and 2 others vs MUHAMMAD SALEEM and 10 others Case No.: Criminal Appeal No.16 of 1996 Date of Judgment:1997-05-15 Reported As: 1997 P Cr. L J 1865 Result: Appeal accepted
JUDGMENT
JUDGMENT ' SYED MANZOOR HUSSAIN GILLANI, J.--- This appeal is filed under section 25 of Islamic Penal Laws Act, 1974, calling in question the order passed by the Division Bench of the Azad Jammu and Kashmir Sharia Court on 20-6-1996, whereby the respondents were acquitted of the charges under sections 5, 14 and 15 of Islamic Penal Laws Act read with sections 307, 147, 148, Penal Code. The respondents (except respondents 9 and 10 who are acquitted throughout) were convicted and sentenced to 14 years rigorous imprisonment besides the sentence of Hakumat-a-Addl in the sum of Rs.25,000 to be paid to the legal heirs of deceased by the District Criminal Court on 23-11-1994. 2. The above respondents were tried for the above referred offences by the District Criminal Court, Mirpur, on the basis of challan filed by the Police Station Mirpur on 27-7-1976. The District Criminal Court, Mirpur, in the first round through its order, dated 15-8-1977, convicted respondents, Muhammad Saleem, Shaukat, Liaquat, Aurangzeb, Allah Ditta and Sakhawat Ali for the death of Muhammad Azam deceased and causing injuries to Khalid Hussain and Mahroof. Muhammad Saleem, was sentenced to death and fine of Rs.5,000 under section 5 of Islamic Penal Laws Act besides seven years rigorous imprisonment and fine of Rs.2,000 for the charges under section 307, Penal Code, and sections 14 and 15 of Islamic Penal Laws Act, while Liaquat, Shaukat, Aurangzeb, Allah Ditta and Sakhawat were convicted to life imprisonment for the offence under section 5 of Islamic Penal Laws Act and sections 148 and 149, Penal Code, with fine of Rs.2,000 each. They were also sentenced to seven years rigorous imprisonment for the offences under section 307, Penal Code, read with sections 14 and 15 of Islamic Penal Laws Act with fine of Rs.500 each. The file was submitted to the High Court under section 374, Cr.P.C. For confirmation of the death sentence awarded to Muhammad Saleem. Appeal was also filed by the convicted respondents and the
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State as well against the order of acquittal. The High Court set aside the order passed by the District Criminal Court, Mirpur, on 7-5-1979 and remanded the case for recording the statements of the prosecution witnesses, Riaz and Khalid Hussain afresh, which were not recorded by the District Criminal Court as visualised by the Islamic Penal Laws Act, and for purgation of the witnesses of the prosecution. After remand, the District Criniinal Court passed the order' on 23-11-1994 convicting the respondents (except respondents 9 and 10) in the case. The Shariat Court, on appeal against the judgment, as stated above, acquitted all the accused through the impugned judgment. 3. Before stating the facts culminating into this appeal, a few admitted facts may be placed on record, i.e. Abdul Karim son of Fateh Muhammad and Muhammad Rafique son of Muhammad Nazir (respondents 9 and 10) were acquitted by all the Courts throughout. Abdul Karim, alias Godhar son of Muhammad Rasib remained absconder all along after the statement under section 242, Cr.P.C. Sufi Rasib, one of the accused died during the proceedings before the District Criminal Court and the case to this extent abated. Allah Dad son of Abdul Karim did not appear before any Court throughout. The litigation between the complainant and accused party before occurrence is also admitted. It is also admitted that all the accused were bailed out by the District Criminal Court on 12-6-1980 and all of them absconded one after the other. Muhammad Saleem, respondent No.1, appeared for the first time in the Shariat Court on 27-7-1993 and finally bailed out on 23-9-1993. He appeared before the District Criminal Court on 7-11-1993. It is also admitted that statements under section 342, Cr.P.C. Of Muhammad Saleem, Aurangzeb, Sakhawat Ali, Shaukat, Abdul Karim son of Fateh Muhammad, Allah Ditta and Liaquat were recorded by the trial Court on 3-8-1988 after taking evidence of Riaz and Khalid Hussain on remand by the High Court. The appeal against the order of District Criminal Court, dated 23-11-1994 was filed by Muhammad Saleem, respondent No.1, only before the Shariat Court and the Shariat Court acquitted all the accused on appeal filed by Muhammad Saleem only. The accused-respondents did not produce any evidence in defence, neither did they opt for it in their statements under section 342, Cr.P.C., when so asked. The accused-respondents were twice examined under section 342, Cr.P.C., who stated the similar version. 4. The learned Shariat Court has recorded the facts which led to filing of the challan against the respondents in paragraphs 2 and 3 of its judgment in the following manner:-- "(2) The facts giving rise to the present appeals briefly stated are that complainant Muhammad Riaz lodged a report Exh.P.A. On February 1 21, 1976 to the S.H.O. Mirpur that Noor Muhammad son of Bhola who was his uncle, had a dispute over a pathway with Soofi Rasab. This dispute was taken to the Court of Additional District Magistrate, Mirpur where litigation was going on for the last five years. The case was finally fixed for hearing arguments on February 21, 1976. The accused persons mentioned in the F.I.R. Were sitting armed in- the office of Muhammad Sharif Tariq, Advocate. As they were found in an angry mood, Noor Muhammad apprehending the trouble asked the complainant party to go away from the Court premises. According to the complainant, he alongwith other members of the complainant party, preceded towards main thoroughfare. However, Noor Muhammad remained in the Court premises. One Rafique, cobbler by profession, was standing nearby, who informed the accused persons about the movements of the complainant party. On receiving this information, the accused persons followed the complainant party. Soofi Rasab shouted a Lalkara thereby instigating the members of the accused persons to kill the complainant party. In the meantime, discussed persons fired at the complainant party. The complainant party took shelter in the shop of Doctor Walayat. The accused party followed them and 'started indiscriminate firing on them with fire-arms. Liaquat accused was armed with 7 mm rifle, Godhar and Allah Ditta had pistols with them. Abdul Karim had a Danda whereas the other accused-persons had shotguns with them. The accused persons, according to the F.I.R., started firing at 11-30 a.m. Muhammad Azam deceased who had taken shelter in the shop of Dr. Walayat,
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received bullet injury on his head and fell down and soon after became unconscious. Muhammad Mahroof son of Noor Muhammad received a bullet injury on his abdomen, knee and hands. Khalid Hussain, the other son of Noor Muhammad, received bullet injuries on his forehead, wrist and legs. However, the complainant was not injured in this incident. According to the F.I.R., the incident was seen by Dr. Walayat, Chaudhry Muhammad Ismail and Soofi Jalal who were present in the shop of Dr. Walayat. It was claimed in the F.I.R., that this attack was the result of common criminal intention which was pre-planned by the accused party to kill the deceased. Muhammad Azam was reported to be in precarious condition and unconscious. (3) The above referred F.I.R., Ex. PA was received by the S.H.O., Mirpur on spot because there is a note of the S.H.O., on this application that he received a telephonic call that there was firing in the Kachehri Chowk. On receiving this information, he along with Muhammad Rashid, Head Constable, Muhammad Iqbal and Muhammad Fazal, Constables rushed to the place of occurrence where he recorded the statement of Muhammad Riaz complainant. The accused-persons, according to the prosecution version, soon after the occurrence ran away from the scene. Muhammad Rafique Nawabi, S.H.O., prepared the injury report Exh.P.O./2 of Muhammad Azam deceased. According to Exh.P.O./2, he had two injuries on the left side of his forehead. He was taken to C.M.H., Mirpur for medical examination and treatment. The S.H.O., also prepared inquest report Exh.P.K. Of Muhammad Azam deceased. He prepared the injury reports Exh.P.V./1 of Muhammad Mahroof and Exh.P.W./1 of Khalid Hussain and mentioned therein the bullet injuries, they had received. He also referred these injured persons to the Doctor for their medical legal report. Muhammad Azam later on died in the Hospital whose post-mortem was conducted by Dr. Muhammad Akram who at the relevant time was posted as District Health Officer Mirpur. According to the prosecution report Exh.P.U., the cause of death of Muhammad Azam deceased was the result of wound of shotgun which caused shock and hemorrhage and injuries to his brain. The bullet collected from the body of Muhammad Azam deceased by Dr. Muhammad Akram during his post-mortem was handed over to the police. The injuries mentioned on the dead body of Muhammad Azam by Doctor Muhammad Akram are reproduced here: (1) Gun-shot wound over forehead left side near hair line (1/4" x 1/4") margin irregular surrounding area of about 1 mm red and cuticle absent. Wound was rounded. Black eye left seen. (2) Lacerated wound forehead left side 1/2" lat. To injury No.1. Size (1/4" x 1/10") and communicating with injury No. 1." ' The learned Shariat Court summarized the facts' in paragraphs 6, 7 and 8 in the following manner:- "(6) During the course of investigation, blood-stained clothes of deceased Muhammad Azam, Muhammad Mahroof and Khalid Hussain, injured persons, were taken into possession by the Police vide Exhs.P.P., P.C. And P.D., and these were tendered in the evidence. These clothes were sent to the Chemical Examiner through a parcel for his report who reported back that all these articles were stained with human blood. From the shop of Dr. Walayat two packets of M.V. Syrup were taken into possession by the Police during the course of investigation vide Exh.P.M. Which according to the prosecution's version were left by Muhammad Ismail, P.W.9, a retired Inspector of Police, due to the firing of the accused-party. Besides this, the police also took into possession the empty cartridges, the used pellets of revolver broken panes of glass from the said shop vide recovery memo. Exh.P.O. The earth stained with blood of Muhammad Azam deceased was also taken into possession vide Exh.P.R. In presence of Nazar Hussain, Muhammad Aslam and Muhammad Riaz who were shown as marginal witnesses of these documents. ' Out of the accused-persons vide Exh.P.H. a .12 bore shot gun (P.9) was recovered at the instance of Sakhawat Ali, accused from the house of his father-in-law. At the instance of Abdul Karim,
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accused-respondent a Danda (P.11) was recovered from his house vide Exh.P.J. At the instance of Muhammad Saleem, accused-appellant, a .12 bore shot gun (P.6) was recovered from his house on 25th February, 1976 vide Exh.P.E. Aurangzeb accused also led to the recovery of .12 bore rifle (P.7) vide Exh.P.F. A rifle (P.8) was recovered at the instance of Liaqat, accused from his house vide Exh.P.G. At the instance of Abdul Karim alias Godhar, revolver (P.10) was recovered. At the instance of Shoukat Hussain a .12 bore gun (P.13) vide recovery memo. Exh.P.L. Was recovered. At the instance of Allah Ditta, accused a .12 bore gun (P.12) was recovered from his house vide Exh.P.K. The marginal witnesses of these articles are Nazar Hussain and Muhammad Riaz, P.Ws. Nos.2 and 10. On demand, the licences of these fire-arms were produced by accused persons on whose instance these were recovered. The site plan Exh.P.T. Along with note Exh.P.T./1 was also prepared on 27-2- 1976. (8) After the completion of the investigation the accused-persons were sent to face trial before the Court on 27th February, 1976 where they denied their guilt in their statements recorded under section 242, Cr.P.C. The prosecution, later on, in support of its case produced Muhammad Riaz, complainant, Khalid Hussain, P.W., Mahroof P.W., Muhammad Aslam P.W., Muhammad Alam, P.W., Muhammad Ibrahim P.W., Muhammad Ismail P.W., Nazar Hussain P.W., Haji Noor Muhammad P.W., Said Muhammad P.W., Mustafa Khan Kiani P.W., Noor Muhammad Khan P.W. Head Constable, Dr. Ch. Muhammad Akram Khan P.W., Ahmad Saeed Khan P.W., who partly had conducted investigation in the case, Muhammad Khurshid A.S.-I. P.W. And Muhammad Rafique Nawabi, S.H.O., P.W. Who recorded the F.I.R. And later on completed the investigation and finalized the challan." 5. We have heard Messrs Sher Zaman Chaudhry and Abdul Basir Qureshi, the learned Advocates for the appellants, assisted by Additional Advocate-General and Mr. Abdul Majeed Mallick, the learned Advocate, for respondent No.l. 6. The learned counsel for the appellants stating the reasons given by the Shariat Court for acquittal of the accused-respondents, inter alia, contended; that all the reasons given by the Shariat Court are flimsy and based on surmises and conjectures; that the occurrence took place in the broad daylight without any mistaken identity of the accused-respondents; that F.I.R. Was promptly lodged without any delay; that the case of prosecution is supported by seven witnesses, two of whom are injured and Ch. Muhammad Ismail is an independent witness whose credibility is not challenged; that enmity between the parties is proved by the admission of the accused; and that the question of corroboration by the experts does not arise in the case as the case is proved by independent eyewitnesses. 7. Mr. Abdul Majeed Mallick, the learned counsel for respondent No.1, arguing the case, inter alia, contended; that F.I.R. Is lodged after preliminary investigation by the Deputy Superintendent of Police and S.H.O.; that no independent witness is produced in support of the prosecution version; that the evidence led in support of the prosecution is self-contradictory and does not inspire the confidence; that the best evidence of the occurrence, i.e. Soofi Jalal and Dr. Walayat and the surrounding shopkeepers of the vicinity were withheld and not produced; that the evidence of prosecution is not believed to the extent of Abdul Karim and Muhammad Rafique, hence the entire evidence is not reliable against the respondents; that the crime empties were not sent to the Ballistic Experts; that Ismail, Soofi Jalal and Dr. Walayat who are alleged by the prosecution to be in the shop on which the accused party allegedly fired are not injured which belies the prosecution story; that the crime-empties and weapon of offence were recovered from the shop of Dr. Walayat which implies of cross-firing having taken place; that the deceased, according to the medical report, had a head injury with the blunt weapon which implies that the case was not of firing. Learned Advocate cited plethora of cases in support of their contentions. The relevant shall be referred at appropriate stage.
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8. We have considered the arguments of the learned Advocate in the light of record, case-law cited at Bar and in the light of the judgments of the Courts below. 9. The learned Shariat Court has, after referring to various lapses and omissions in the statements of witnesses produced on behalf of the prosecution to prove the occurrence, come to the conclusion that the case is doubtful and shrouded in mystery. To support its view, the Shariat Court has recorded that A.D.M. And D.S.P. Who are stated by Muhammad Mahroof and Muhammad Ismail, P.Ws., to be present at the place of occurrence have not been cited and produced as witnesses. A.D.M. Having recorded statement of Muhammad Mahroof and D.S.P. Having sent the injured persons to hospital were material witnesses in the estimation of the Court. The D.S.P. Being first to have received the information of the occurrence, but the information has not been treated as F.I.R. Perhaps for the reason that after conducting investigation by D.S.P., it was not found favorable for the prosecution. The above stated reasons on the face of it seem hypothetical and based on surmises. Under section 154, Cr.P.C., an information regarding the commission of a cognizable offence has to be given to an Officer Incharge of a Police Station, who is to reduce it in writing. Any information to a D.S.P. Or S.S.P. Of an occurrence is not the F.I.R. Neither can it be so treated. They are administrative officers to control the administration of a Sub-Division or a District, not to record the F.I.R. Or conduct, the investigation or inquiry, unless specially entrusted with the task. Under the ordinary course of their working, when they come to know or are informed of an occurrence, they order the subordinate authorities to proceed under law, and at times, they visit themselves to look after and see as to whether the officers subordinate to them perform their duties. The higher authorities are usually approached for prompt and urgent help. In the case in hand, the D.S.P., as usual, on receiving telephonic information might have visited the place of occurrence which was a very important place of business adjacent to District Offices. His mere visit of the place or sending the injured persons to hospital did not make him a necessary witness when the usual task of investigation of the case was conducted by the relevant/concerned Police Officer, i.e. S.H.O., of the area, neither does the simultaneous visit of D.S.P. And S.H.O., as argued by the learned counsel for defiance, mean that F.I.R. Was lodged after preliminary investigation. The information to D.S.P. Under the circumstances and his visiting the spot and dispatching the injured to hospital, ensured expeditious and efficient handling of the matter to help the relevant authorities and minimize the panic spread in the busy Chowk of the area. 10. Besides, the D.S.P. Who is anyhow concerned with the law and order situation, even common people reach on spot to render their helping hand under the circumstances without making them liable to be cited or produced as witnesses. Muhammad Ismail, who is alleged to have given the information to D.S.P. Was a retired Police Officer having equation with his erstwhile colleagues for ensuring the prompt action in the matter, used his personal influence under the circumstances of the case, and the perusal of record reveals that it really expedited the matter. 11. Similarly, the reason recorded by the Shariat Court that statement of Muhammad Mahroof was recorded by A.D.M. But he was not cited as a witness, is over-reading the statement of Muhammad Mahroof, for the reason that Mahroof has simply said in his cross-examination that{{URDU TEXT}} ' This does not mean that his statement was recorded or reduced into writing. Under these circumstances, when the complainant/injured party or anybody else witnessing the occurrence is asked by any officer responsible for law and order as to what happened and how the occurrence took place, any reply to the query or question does not mean a regular statement. It is simply a narration of facts to a person desirous of knowing it, because of his being concerned with the law and order. Moreover, there was no occasion for A.D.M. To record the statement of Mahroof, as he was neither holding an inquiry under section 202, Cr.P.C. Nor entrusted specially for holding the inquiry under the Inquiries Act. Such a reply or statement by Mahroof, as so held by the Shariat Court, is similar in nature as the statement of Muhammad Ismail that he was summoned by
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Deputy Commissioner in his office where he narrated the whole story to him. Such a statement does not make the Deputy Commissioner as witness nor the statement of Ismail as a first information report. The learned Shariat Court has given undue and unwarranted weight to these events, which if at all relevant, were so to the extent of interest of District Administration in ensuring that true facts are properly perceived by them for proper implementation of law and order. These were not the sufficient grounds to hold the case doubtful. 12. The learned Shariat Court has held the prosecution case doubtful alleging discrepancies and improvements in the statements of prosecution witnesses, particularly Muhammad Ismail, and has dfurther held that as their statements have not been accepted to the extent of Muhammad Rafique and Abdul Karim, the acquitted accused, the same are treated as not reliable against the other accused respondents as well. The perusal of the judgment and the trend of the arguments of the counsel for the defence, does not reveal as to which discrepancies bedevil the prosecution version or which improvements in their statements negate the true prosecution version. The parrot like narration of events by all the prosecution witnesses is not the essence of proof nor is one's failure in doing so a discrepancy or contradiction of the prosecution version. The perception, intelligence, eloquence and I.Q. Of all the persons is not equal, similarly, the expression of their perception also varies. The Court is to see the substance of the statement not the minute details thereof, unless the happening of the occurrence is perceived by the Court to be impossible by the statement of the witnesses when read in juxtaposition to each other. The improvement made in the statement, if not belying the version or setting up a counter or different version, does not amount to falsify the case. Improvements contrary to the real version, are different from the substantiation or explanation of the version before the Court vis-a-vis the statement under section 161, Cr.P.C. The latter is cursory statement to enable the Investigating Officer to make the mind as to whether the case is fit for being challenged or not. Any narration of the facts or events in addition to that as recorded under section 161, Cr.P.C. Is not an improvement amounting to contradiction and making the version false, neither can such a witness be said as not reliable. If a witness contradicts his earlier statement or makes a statement which is inter se inconsistent or contradicted by the other or others, the same may reasonably be treated as not acceptable and witness as not reliable. No such contradiction or inconsistency is either pointed out nor recorded by the Shariat Court. A part of the statement or event not finding place in statement under section 161, Cr.P.C., but being in the statement before the Court, is not an improvement, but a substantiation of the case, which, if not being contrary or against the earlier statement, is reliable without any I blemishes. There was no ground to hold the witnesses as not reliable or version as doubtful. The other contention of the learned counsel for the respondents that as the statements of the witness are not accepted to the extent of Muhammad Rafique and Abdul Karim, acquitted accused, these be rejected as a whole, can also not be accepted firstly for the reason that the role of these accused-respondents is very beginning and does not inspire or categorically reveal that they had any commonality of interest or intention with the rest of the accused-respondents and secondly for the reason that Court has to sift the grain from the chaff and hold a person responsible to the extent of his role only on the basis of that portion of evidence which can be legally relied upon. It is held in Muhammad Sharif v. The State PLD 1978 SC (AJ&K) 146:-- "The conviction recorded by the High Court is also condemned on the ground that the evidence against Abdul Rashid (acquitted accused) when disbelieved, it was not safe to sustain the conviction of the appellant on the same evidence. The maxim falsus in uno falsus in omni bus (false in one particular false in all) is a dangerous one especially in this part of the country for if whole body of testimony were to be rejected because the witness was evidently speaking untruth in one or more particulars, it is to be feared that witness might be dispensed with. There is always embroidery to a story, however, true in the main. When main part of the deposition is true it should
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not arbitrarily be rejected because of want of veracity on perhaps some very minor point (Fields Law of Evidence in British India, 8th Edition XL and XLI). Therefore, where a witness is stated to have given false evidence to implicate some innocent persons, besides the real culprits, his whole deposition may not be rejected when the main portion of evidence, which rings true can be legally relied upon." 13. It is held in the case of Khalid v. The State 1983 PCr.LJ 761:-- "Besides, discrepancies on minor points are not really a proof of case being false, instead these are bound to happen in case of truthful witnesses, parrot like…
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