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Petitioner: MAZHAR MIR VS Respondent: THE STATE.
Court Name: Peshawar High Court Judge(s): Syed Ibne Ali, Nazir Ahmad Bhatti Title: MAZHAR MIR vs THE STATE. Case No.: Criminal Appeal No.44 of 1989 Date of Judgment:1990-10-16 Reported As: 1991 P Cr. L J 454 Result: Appeal accepted
JUDGMENT
JUDGMENT SYED IBNE ALI, J.---Mazhar Mir, appellant herein, alongwith his two sisters, namely Mst. Surriya Bano and Mst. Zubaida since acquitted was tried for the murder of Aurangzeb deceased by learned Sessions Judge, Abbottabad, who, by his order dated 16-12-1989, convicted him for the offence of murder under section 302, P.P.C. And sentenced him to life imprisonment with benefit under section 382-B, Cr.P.C. And a fine of Rs.20,000 or in default to suffer further three years' rigorous imprisonment, with the direction to pay half of the amount of fine, if realized, to the heirs of the deceased by way of compensation. By the present appeal, the appellant has challenged his conviction and sentence. While Mst. Jamila Khatoon, widow of the deceased has filed a revision petition for the enhancement of sentence passed under section 302, P.P.C. And the amount of compensation payable to the heirs of the deceased. As both the matters arise out of the same judgment, these are disposed of together. 2. The prosecution case as briefly disclosed in the F.I.R lodged by Sajjad Mahmood P.W.6 complainant, at Police Post Nawanshehr, was that on 18-7-1984, about evening time at 8-40 p.m. He was proceeding from his house towards Bazar and when he reached near house of Aurangzeb in a street of Mohallah Musazai, he beheld Aurangzeb and his were Mst. Jamila Begum (P.W.7), and son Shakeel (P.W.9) who wanted to take away household effects from their house, adjacent to that of Mazhar Mir appellant, while he also spotted Mazhar .Mir appellant with his two sisters Mst. Surriya Bano and Mst. Zubaida acquitted accused standing on roof of their own house and hurling abuses and, in the meantime, Mazhar Mir fired a shot with firearm (Asia Aatsheen), hitting Aurangzeb on head and dropping him dead then and there. The report of shot was heard by people in general. Holding arms openly in their hands, the ladies accused did not allow anybody to get near dead
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body lying on spot. The motive for occurrence was that both the contending parties were neighbours and their womenfolk were invariably on logger's head with each others. Having seen the incident in the above manner, Sajjad Mahmud (P.W.6) appeared at Police Post Nawanshehr about 9-25 p.m. And made the report Exh.P.A./1 narrating the above facts in substance. 3. After recording the report in the very words of the complainant, the A.S.I. Muhammad Akram P.W.11 sent the same to Police Station Bagnotar, where on its basis, a case was registered vide F.I.R. Exh.P.A. By A.S.I. Safdar Ali P.W.2. Thereafter the A.S.I. Proceeded to the spot and on his arrival there, he prepared an injury sheet Exh.P.W.4/2 in respect of dead body and sent the same under escort of F.C. Arif P.W.13 to mortuary at Abbottabad, where on the following day autopsy was conducted by Dr. Syed Amjad Hussain (P.W.4) on the identification of Dildar (P.W.12). The A.S.I. Them arrested Mazhar Mir accused and also inspected the spot. He collected shirt P.1 and Jacket P.2 and blood Exh.P.3 therefrom and made then into a sealed parcel vide recovery memo. Exh.P.W.3/1. He also took into possession an electric bulb fixed outside door of the deceased's house. In addition, he recorded the statement of the witnesses. In the meantime, S.H.O. Naseem Afzal Khan (P.W.10) arrived at the scene and took over the investigation and arrested both the accused ladies. During house search of their house, the S.H.O. Recovered unlicensed revolver of .32 bore Exh.P.5, two missed cartridge Exh.P.6 and took them into possession through recovery memo. Exh.P.W.3/2. All this was done on 18-7-1984. On the following day, during the house search of the very house of accused, the S.H.O. Recovered shotgun Exh.P.7 with cartridges Exh.P.8 and put them into sealed parcel vide recovery memo Exh.P.W.3/3. He also took into possession an empty Exh.P.10 of .12 bore and made it into a sealed parcel vide memo. Exh.P.W.3/4. Besides, he scratched blood-stained hairs from a hind wall of house belonging to one Muhammad Jan and made into parcel; vide recovery memo. Exh.P.W.3/5. He also took into possession blood-stained clothes of deceased and a sealed phial containing 16 pellets extracted from his dead body and made them into sealed parcel through recovery memo. Exh.P.W.l/1. All the recoveries listed above were effected by the two aforesaid Investigating Officers in presence of marginal witnesses, including Zulfiqar Khan P.W.3. Sometime later, the blood collected from spot and blood--stained clothes of deceased were despatched to chemical examiner, who, vide his report dated 17-3-1985 Exh.P.W.11/D-7 opined that the articles revealed that it was human blood and of the -same group. Likewise the empty and shotgun recovered in the case were found wedded with each other vide report dated 13-9--1984 Exh.P.W.11/D-1. Upon completion of the investigation in the manner described above, the local police submitted charge-sheet under section 302/34, P.P.C. To the Ilaqa Magistrate who sent the same against the accused named above to the Court of Sessions Judge, Abbottabad for trial. 4. At the trial, the appellant and his confederates, since acquitted, denied the charge, professed innocence and asserted that they had been involved falsely in the case because of enmity. However, Mst. Surriya Bano accused, when examined under section 342, Cr.P.C. Took squarely upon her shoulders the sole responsibility of killing the deceased in exercise of the right of self-defence of her person and that of her compeer, Mst. Zubaida Khatoon while averting the unprovoked aggression and wanton assault initiated by the deceased with lethal weapons. The assertion in this context is fully and firmly supported by Mst. Zubaida Khatoon in her statement under section 342, Cr.P.C. No evidence in defence was provided by any of the accused persons in the instant case. 5. The first question that presents itself for decision is whether the deceased met his death as a result of violence of homicidal nature. In this context, reference to the statement of Dr. Syed Amjad Hussain P.W.4, who conducted autopsy of dead body of the deceased, is pertinent. On external examination, he found the following injuries:-- (1) Abrasion on the lateral side of the right scapula 1" x 1-1/2". There is an abrasion of the middle of the back rib 2-1/2" long 1/2" were on right side with abrasion 1/2" x 1/2" on the right lumbar region back.
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(2) Bruise small on apex or right shoulder joint with bruise on the left arm below the shoulder joint. (3) Bruises three in number below the knee joint laterally. There is bruise on the lateral side of the middle of the leg. (4) Bruise on elbow joint. (5) Bruise on the right cheek bone 1-1/2" x 1" below the eye with bruise on the left side of upper lip and on forehead left side. The injuries on the external and internal examination of the skull were as under:-- (1) There is an entrance wound 2" x 2-1/2" on the occipital and parital region back of skull with scalp and bone missing. Brain coming out and damaged alongwith its membrane. This is 3" from right ear above it. The cavity of skull contained blood and damaged brain. Other parts of tae brain congested frontal and parital parts with fracture or occipital, parital and frontal bone in pieces with no exit wound. Stomach was found normal containing churled food. Cause of death was due to shock and damage to the brain and haemorrhage on account of fire-arm injury on the back of the skull in occipital region causing fracture of the skull bone and damage to the brain. 16 pellets weighing three grams 440 miligrams recovered, put in a bottle, were signed and sealed and handed over to the policeman. Probable time that elapsed between injury and death abut 1 to 5 minutes and that between the death and post-mortem examination 11 to 12 hours. The post-mortem report alongwith the pictorial comprising of six pages Exh.P.W.4/1 was handed over to the police. From the testimony reproduced above, it is clear enough that the deceased was done to death by violence of homicidal nature. Who is the author of this tragedy will be answered in sequence elsewhere. 6. Both the acquitted accused had also sustained some injuries in the same transaction and on 22-7-1984 they were examined medically by lady Dr. Mrs. Rifat Naseem Qazi (P.W.5),. Woman Medical Officer, Civil Hospital, Abbottabad. In the first instance, the Lady Dr. Examined Mst. Surriya Bano through her application (Exh.P.W.5/1) and found swelling about 2" x 1" on top of head and abrasion about 1" x 1" on her right arm. Both the injuries were caused by blunt means. The Lady Doctor while examining Mst. Zubaida Khatoon, acquitted accused, in pursuance of her application Exh.P.W.5/3, found the following injuries:- (1) Multiple abrasions on the front of neck and upper part of chest, caused by sharp-edged means. (2) Bruise 2" x 1" on the right mamary gland (breast upper part). (3) Bruise about 2" x 1" on the right chest near the axilla. (4) Bruise about 1/2" x 1" on the right shoulder about 2" above the injury No.3. (5) Multiple bruises each measuring about 2" x 1" on the whole of the left mamary gland (breast). (6) A linear contusion mark about 12" x 1/2" on the back.' (7) Bruise about 1" x 1" in the right arm. Her shirt was torn on the front as well as on the back and soaked in blood at neck region. 7. Before dealing with the evidence produced in the case, we may remark at the very outset that there are two counter-versions, one offered by the prosecution and the other by the ladies, acquitted accused, and supported to some extent by the appellant when examined under section 342, Cr.P.C. The difference in the two versions is as under:-- (a) In regard to actual place of occurrence, the prosecution case is that it happened in the street passing in front of the house of appellant, while the case of defence is that it happened inside his house. (b) In respect of the author of crime, the prosecution alleges that it was appellant who fired at the deceased with shotgun, hitting and killing him at spot, while the defence urges that the deceased was killed by Mst. Surriya by firing at him with shotgun while he was engaged in assaulting her and Zubaida Khatoon, her sister in an attempt to kidnap her as also to molest her.
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(c) In regard to background attending the origin of homicidal attack on the deceased, it is the stance of the prosecution that the deceased, accompanied by his were Mst. Jamila P.W.7 and son Shakeel P.W.9 had left his father's house to collect some household effects from his erstwhile abode, contiguous to that of the appellant and on his arrival there, no sooner, did he unlock his house and put on electric light fixed on entry door, then the appellant came out and started grappling with the deceased and then repaired to his house and again came out carrying a shotgun and tired therewith, hitting and dropping the deceased dead on the spot. While the defence denying the above assertions, one and all, maintained that deceased, by himself armed with a revolver and knife criminally trespassed into the house of appellant to kidnap Mst. Zubaida Khatoon, and gave her beating and on intervention by her sister Mst. Surriya, he also injured her and during struggle, his revolver fell down and in the process, their clothes got torn. To rescue her sister, and frustrate evil design, Mst. Surriya Bano fired with a shotgun at the deceased, who forthwith jumped out and fell dead in the lane. In nutshell, Mst. Surriya set up the plea of self- defence of her person and that of her sister and that her act of killing the deceased is fully protected by law of the land. 8. Having reproduced the rival contentions of the parties and gone through the record, we feel inclined to hold that it is a case of two versions and that both the stories as a matter of rule, require to be examined side by side. But this does not mean that the prosecution is entitled to fill in lacuna in its case by utilizing the statement of an accused to the extent to which it is helpful and advantageous to the prosecution. For, it is main principle of criminal law that an accused person must be presumed to be innocent unless and until the guilt of the accused is established by the prosecution beyond shadow of doubt. The onus is always on the prosecution to prove their case, and that the accused cannot be convicted merely on proof of his having told an untruth or injected falsity in relation to one or more of the facts alleged against him. Even section 106 of the Evidence Act cannot be used to undermine the above rule of law, which is as old as hills. If in determining whether this burden has been discharged by the prosecution, the version of the accused appears to be reasonably possible, then a reasonable doubt 'pervades the whole case and the accused becomes entitled to a verdict of not guilty. In this context, we are fortified by the dictum of the Supreme Court in Sultan Muhammad's case reported as PLD 1954 FC 29. Understood in this sense, we are first obliged to scan the prosecution evidence to find out if the story put across through the mouth of the complainant Sajjad Mahmud P.W.6 stands proved beyond shadow of doubt or, at any rate, any doubt stands created in the truth of the story so detailed in prosecution evidence. For this purpose, we take up first assessm ent of the evidentiary value of the deposition of the prosecution witnesses. 9. The fate of this case hinges on the testimony of Sajjad Mahmud P.W.6, Mst. Jamila P.W.7, Alaud Din P.W.8 and Shakeel P.W.9 who profess to be eye--witnesses of the occurrence. All of them are closely related inter se and with the deceased. For instance, Alaud Din P.W.8, on his own showing is first cousin of the mother of the deceased, although this relationship is falsely denied by other eye- witnesses, just to give him a badge of disinterested witness and the vain attempt on their part to conceal relationship existing between them seriously impairs their veracity. However, the broad fact remains that Sajjad Mahmud P.W.6 is sister's son while Mst. Jamila P.W.7 and Shakeel P.W.8 respectively are widow and son of the deceased. It is admitted by Mst. Jamila that on 9-6-1984 Mst. Zubaida Khatoon acquitted accused lodged a report at police post Nawanshehr against her, the deceased, Mst. Bibi Jan, her mother-in-law and her other relations for trespassing into her house and assaulting her and Mst. Surriya acquitted accused with sticks and fists and kicks. There is actually no denying the fact that the deceased also lodged a counter-report against the appellant and his two sisters, named above for abusing him and in consequence, both the contending parties were bound down under section 107/151, Cr.P.C. Strangely enough, the trend of other eye-
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witnesses shows that they have given evidence with a motive other than that of telling the truth. They either denied or pleaded want of knowledge of the facts which they were presumed to have known in view of close inter-relationship. It is clear enough, that all these witnesses share amongst themselves the feelings of hostility against the appellant and his sisters, acquitted accused. Further insult was added to the injury, when the deceased with his family, as a sequel to the above litigation, was forced to give a go-by to his residence in a house contiguous to that of appellant and take up the same in his father's house, distant one kilometre therefrom. This abrupt and sudden deprivation of their own house further aggravated the already existing embittered feelings between the parties. It will thus be seen that the eye-witnesses are not only inter-related but are also admittedly inimical towards the appellant and his family members. They can easily be termed as interested witnesses and their evidence cannot be accepted unless it is corroborated by some strong confirmatory circumstance. In a case like the one in hand, medical evidence, which only indicates that death was caused by use of fire-arm, cannot be treated corroboration qua the appellant so far as his identity is concerned. Similarly motive of enmity is always a double-edged weapon and if it can be used against accused person to have egged him on to commit the crime, it can with force and weight be used against the prosecution for false implication of accused person, especially when the crime is unwitnessed or when ocular testimony is highly unreliable and tainted with material improvements, contradictions and discrepancies. 10. Notwithstanding of what has gone before, it will be apt to sift the evidence of motive before dealing with the aforesaid ocular witnesses. In F.I.R. Lodged by Sajjad Mahmud P.W.6 it is alleged that womenfolk of both the parties, being neighbours, used to quarrel with each other. He has not disclosed the nature and number of quarrels in his evidence and significantly enough, he has shown his utter ignorance if security proceedings were initiated against the parties in pursuance of their mutual incriminations or that deceased left his house contiguous to that of the appellant and shifted to his father's house for residence. Save Mst. Jamila P.W.7, other witnesses have also sung a song of ignorance and fattered about the facts listed above. However Mst. Jamila P.W.7 while alluding to earlier complaints has not asserted that after departure from their house and until the fateful day, any untoward incident had happened in the intervening period between the contending parties. Curiously, the witness in hand has added another item of motive by saying that some undesirable persons used to visit the house of the appellant and the deceased objected to their visit on which they were annoyed. The complaint Exh.P.W.11, DO2 is conspicuous by absence of such an uncharitable accusation intended to malign the ladies accused. And the prosecution itself abandoned this item and did not put to any accused under section 342 Cr.P.C. The question arises if the evidence of motive which has come from the mouth of complainant or eye-witness, whose word in respect of main incident stands in need of extraneous corroboration, can be used to corroborate his own assertion in this behalf. The answer is simple and trite. It is independent corroboration which is required and the evidence of the same witness in regard to some other matter cannot be equated with independent corroboration. Reference may be made with advantage to Supreme Court authority reported as Nawaz Ali and another v. The State 1981 SCMR 132. 11. It is worth noting that the starting point of prosecution is that the deceased alongwith his were and son, had gone to collect household articles from his abandoned home to meet the needs of engagement of his brother. None of the witnesses in their earlier statements stated that engagement was to take place and articles were taken away and even such engagement ever took place thereafter at any time. On their own showing, the deceased and his companions did not hire any hand cart or labourer not carried any basket or Chaddar to take the intended articles. It is in the evidence of A.S.I. Muhammad Akram that nobody produced before him any lock or key to confirm the assertion for opening the deceased's house to remove articles therefrom nor did he
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himself enter the house to verify this fact. 1n this setting of facts, it is difficult to believe, if at all the deceased visited his house or opened the same for the stated object. Thus the reason for the presence of the eye-witnesses at or near the spot for the above purpose in the company of deceased disappears ipso facto. There was thus no occasion for the appellant and his sisters to start abusing straightaway to the deceased at first sight or grappling with him especially when he did not provide any provocation or cause of grievance to them. The non-existence of any injury n the person of appellant at the time of his arrest soon after the occurrence, deposed to by A.S.I. Muhammad Akbar P.W.11, excludes his participation in grappling which resulted in as many as thirteen bruises of various size on different parts of the body of deceased before fatal shot was fired. Furthermore, in the background of the earlier litigation resulting in loss of enjoyment of his own residence, the motive for initating assault and attack lay with the deceased. The motive for attack set up by the prosecution stands condemned by its own absurdity and inherent falsity. It is not always for the prosecution to set up a motive for the crime because it is hidden in the mind of the offender who rarely discloses it, but once it has set up a motive, then it is its duty to establish it by production of clear and cogent evidence. This is the law which has been laid down 6 by the Supreme Court in Hakim Ali case reported as 1971 SCMR 432. The failure to prove the motive not only shatters the cornerstone of the prosecution case but also obliges the Court to subject the ocular evidence to close and critical examination and analysis. It is crystal clear that motive put forward .By prosecution instead of corroborating ocular account exposes it to distrust. 12. Reverting to the evidence of eye-witnesses, the learned counsel for the complainant in his attempt to dispel our lurking doubts about the presence of eye-witnesses at the spot, has urged that since the first information report was made without loss of time, the complainant had obviously no opportunity for deliberation for fabricating a story. The F.I.R. Or the prosecution version is not sacrosanct or a gospel truth, especially when it is forthcoming from a witness who, on his own showing, chances upon the scene of offence as if casualty was waiting for his arrival to take effect. For instance, Sajjad Mahmud P.W.6 says while he was going to bazar, he happened to get to house of deceased and saw him with his were and son intending to collect some household effects therefrom. Their presence for the purpose as stated has already been rejected by us. However, Mst. Jamila P.W.7 says that her outcry at the time of grappling between the deceased and the appellant attracted Sajjad P.W.6 which the latter does not allege either in F.I.R. Or in his statement at the trial. Nor does he equally see incident of grappling nor shirt and jacket of deceased at the alleged spot. He omits to mention these facts in F.I.R. Though, at trial, he makes it bold to suggest to the contrary. Significantly even Alaud Din P.W.8 is silent with regard to this aspect of case and is however positive that he did not see the appellant and the deceased grappling with each other. Thus the arrival of Sajjad Mahmud P.W.6 and that of Alaud Din P.W.8 was not due to alarm raised by Mst. Jamila P.W.7 as alleged by her either at the beginning or during course of alleged grappling. Their appearance on the spot exactly at the time of enacting tragedy was a mere coincidence by supernatural happening. The shirt and the jacket allegedly belonging to deceased, although not identified as such by any witness, were found stained with human blood, meaning thereby that he received bleeding injuries with blunt means before fatal shot was fired. Yet Sajjad Mahmud P.W.6, Mst. Jamila P.W.7 and Shakeel P.W.9 on their own showing stood like disinterested witnesses and did not move even little finger to save the deceased from the alleged clutches of the appellant. Above all, is it credible that a were, son and nephew of the deceased would not have rushed to his help in such a situation, more particularly when the assailant was not armed at all. None of them even goes to police station for report. Further, singular absence of any injury on the appellant as already pointed out or any tear or speck of blood on his clothes argues against the factum of grappling in the street or participation of the appellant therein prior to firing. The recitals in F.I.R. Also support this inference. All this leads us to entertain serious doubt about the presence of Mst. Jamila P.W.7 and
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Shakeel P.W.9 in the company of the deceased at the time and place and for the purpose as alleged by them. Significantly enough, in his statement before the police with which he was duly confronted, even Alaud Din P.W.8 excludes the presence of these witnesses as also of P.W. Sajjad Mahmud on his alleged arrival at the scene, although he himself has not been mentioned in F.I.R. Since this witness has been falsely introduced by Mst. Jamila P.W.7 and Shakeel P.W.9 and subsequently by Sajjad Mahmud P.W.6, the safer course is to keep his statement out of consideration. It is however relevant to consider that Sajjad Mahmud P.W.6 would not have omitted the name of…
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