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Petitioner: SUHAIL and 3 others VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Ali Muhammad Baloch, Ch. Ejaz Yousuf Title: SUHAIL and 3 others vs THE STATE Case No.: Criminal Appeals Nos.24/K to 27/K of 2000 Date of Judgment:2000-11-02 Reported As: 2001 P Cr. L J 1086 Result: Order accordingly
JUDGMENT
JUDGMENT ' CH. EJAZ YOUSUF, J.--- This Judgment will dispose of Criminal Appeal No,24/K of 2000 filed by Suhail son of Abdul Waheed Pathan, Criminal Appeal No,25/K of 2000 filed by Atique son of Iqbal Rajput, Criminal Appeal No,26/K of 2000 filed by Naeem alias Bholla son of Muhammad Jamil and Criminal Appeal No,27/K of 2000 filed by Daud son of Sarwaryar Ahmadzai, as all these appeals arise out of the same judgment, dated 31-3-2000 passed by the learned Sessions Judge, Nawabshah whereby the appellants have been convicted under section 396 read with section 149, P.P.C. And sentenced to undergo life imprisonment each alongwith a fine of Rs,1,00,000 (one lac) each or in default, to further undergo R.I. For two years each. Benefit of section 382-B, Cr.P.C. Has, however, been not extended to the appellants. It has been directed that the amount of fine on recovery shall be paid to the legal heirs of the deceased. 2. Facts of the case, in brief, are that on 7-1-1996 report was lodged by one Syed Sikandar Shah at Police Station "A" section, Nawabshah wherein, it was alleged that the complainant, alongwith his brother namely Syed Shabir Shah alias Naveed Shah, Taimur Shah and father namely Syed Bashir Shah were living in one and the same house. In the night between 6-1-1996 and 7-1-1996, at about 9-00 p.m. The complainant alongwith his father, after taking evening meals went to the Mohallah Mosque for offering Nawafils of Shab-e-Barat. His aforenamed brothers, however, slept in the house. At about 1.30 a.m. On 7-1-1996 after the prayers, when the complainant and his father returned to their house, they saw that outer gate of the house was open and tube-light was on (luminating). No sooner they entered the courtyard than, five youngsters who were already present there, took them on pistol points and asked them to raise their hands up. The culprits, who were residents of their Mohallah, were identified by the complainant as Suhail Pathan, Atique Rajput,
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Habib Shaikh, Naeem alias Bhola and Dawood. It was further alleged by the complainant that accused Atique took out five currency notes of Rs, 1,000 denomination each and National Identity Card from the pocket of his father whereas, accused Suhail snatched from him, a sum of Rs, 15,000 in the shape of Rs, 1,000 denomination currency notes, National Identity Card and a Seiko wrist watch whereon his name was scribed. On commotion, complainant's brothers were attracted and they also identified the culprits. Since backsides of the accused persons namely Atique and Suhail were towards the complainant's brothers therefore, they caught hold of them. Syed Taimur Shah apprehended accused Atique whereas Syed Shabir Shah caught hold of accused Suhail. His father tried to apprehend the remaining culprits. Complainant's father was ahead of him. The remaining three culprits fired at them, which hit his father, who fell down. In order to rescue their companions, they also fired at his brother. On hearing the gun shot reports as well as cries of the P.Ws. Neighbours were attracted whereupon, the three culprits, leaving behind their companions, fled away. In the meantime P.Ws. Fazal Karim, Mumtaz and others came at the spot and they saw complainant's father who had sustained fire-arm injuries on his right arm, elbow and neck. Shabir Shah alias Naveed Shah had also sustained injury above his left ear and he was bleeding. On enquiry, he disclosed that accused Habib in order to rescue accused Suhail from his grip, had fire at him, and the bullet hit Suhail accused on foot. Accused Dawood gave him a blow on his head with butt of a pistol and the bleeding was the result of the injury. Taimur Shah told him that accused Naeem alias Bhola in order to rescue accused Atique had fired at him and the bullet hit accused Atique in the stomach. The apprehended accused persons alongwith their pistols, were detained in the Otak. The injured were immediately shifted to the hospital where, complainant's father expired. On the stated allegations a formal F.I.R. Bearing No, 6 of 1996 was registered at the said police station under section 17(4)(2) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") and investigation was carried out in pursuance thereof. On the completion of investigation the accused persons were challaned to the Court for trial. 3. Charge was accordingly framed, to which the accused/appellants pleaded not guilty and claimed trial. 4. At the trial, the prosecution, in order to prove the charge and substantiate the allegations levelled against the accused/appellants, produced eight witnesses, in all. P.W.1 Syed Sikandar Ali Shah is the complainant. He, at the trial, while reiterating the version contained in the F.I.R deposed that the culprits present in Court were the same who had committed the offences of murder and dacoity in their house. He produced in Court the F.I.R. As Exh.13-A. He also produced his own N.I.C., the N.I.C. Of his father and a sum of Rs, 20,000 cash alongwith a wrist watch as Articles A-1, A-2, A-3 and Exh.A-4 respectively. In the course of his cross-examination he disclosed that his father was fired at, from a distance of 4/5 feet. He, however, denied the suggestion was incorrect that some unknown dacoits had tried to commit dacoity in their house, as a result whereof his brother fired from the upper storey of the building which hit his father and his brother also received injuries in the panic. He also denied the suggestion as incorrect that accused Atique was already lying in injured condition, in the hospital, when he had taken the injured to the Hospital. He also denied the suggestion as incorrect that the accused persons Atique and Suhail, both had received injuries in the fire works and not in the incident. P.W.2 Syed Shabir Shah alias Naveed Shah is an eye-witness of the occurrence. He deposed that on 7-1-1996 he was present in his house. His father and brother Syed Sikandar Shah had gone to the Mohallah mosque to offer Nafal prayer as it was Shabe-Barat. He slept in the house. His younger brother Taimur Shah was also sleeping in another room having common door. Taimur Shah awakened him by telling that there was a commotion in the house. They came out of the room and saw that the accused persons were present in the courtyard. He also saw his father and brother Sikandar Shah standing with raised arms as they had been taken
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on pistol points by the accused persons, Accused Suhail took out money as well as N.I.C. From the pocket of the shirt of his brother Sikandar and also removed his wrist watch, whereas accused Atique Rajput took out money and N.I.C. From the pocket of his father. He further deposed that he caught hold of accused Suhail from backside whereas, his younger brother namely Taimur Shah caught hold of accused Atique by his arms. His father in order to apprehend the remaining accused persons advanced towards them whereupon, he was fired at. His father received fire- arms injuries on his neck, chest and elbow and in consequence, he fell down. The accused persons directed them to release the apprehended accused persons and in order to rescue their companions, accused Naeem alias Bhola fired towards accused Atique Rajput who was apprehended by his younger brother Taimur Shah whereas, accused Habib Shaikh fired towards accused Suhail. He further stated that accused Suhail received bullet injury on his foot, as a result of firing made by Habib Shaikh whereas, accused Dawood Pathan gave butt blow to him, on the head. They raised cries which attracted Mohallah people. They apprehended the accused persons with the help of inhabitants of the area and detained them in Baithak of the house. Since he and his father were bleeding, therefore, both were taken to Hospital in the vehicle of Matloob Khan. In the Hospital, doctor disclosed that his father was dead. In the course of his cross-examination he denied the suggestion as incorrect that some unknown dacoits had committed dacoity in their house and his father died as a result of firing made by Taimur Shah. He also denied the suggestion as incorrect that accused Atique was already lying in the Hospital, in injured condition, when they reached there and that accused persons Atique and Suhail had received injuries in fire works on the occasion of Shab-e-Barat. He also denied the suggestion as incorrect that accused persons had neither trespassed into their house nor had they, tried to robe them nor made firing and that the witness and the deceased had received injuries in panic. He also denied the suggestion as incorrect that the accused persons Suhail and Atique were not arrested alongwith the weapons of offence from their house, nor currency notes, N.I.Cs. And wrist watch were recovered from their possession P.W.3 Syed Taimur Shah, at the trial corroborated the statements of P. Ws. 1 and 2 in all material particulars. In the course of his cross-examination he stated that the accused persons fired at them from a distance of 2/3 feet. He denied the suggestion as incorrect that they had, prior to the incident, altercation with accused Naeem as he had fired crackers in front of their house P.W.4 Mumtaz Ali is a witness of the locality. He deposed that on the day of occurrence, in the night, he was offering prayers as it was Shabe-e-Barat. At about 1.30 a.m. He heard gun shot reports as well as noise which was coming from the house of the deceased. He went mining towards the place of incident and saw that light in the house was on and accused persons namely Dawood, Habib and Naeem alias Bholla armed with pistols, were coming out from the house. They approached the place of occurrence from western side whereas, the accused persons fled towards eastern side of the house of Syed Bashir Shah. He saw the deceased lying in injured condition. P.W. Naveed Shah .Had caught hold of accused Suhail whereas, P.W. Taimur Shah had apprehended accused Atique. Both the accused persons were armed with pistols. On inquiry P.W. Sikandar Shah disclosed to him that the dacoits, who were five in number had entered their house, two of them were apprehended, whereas, the rest were able to make good their escape. He was further told by Sikandar Shah that the dacoits had robbed, a sum of Rs,15,000 from him, and a sum of Rs,5,000 alongwith a Seiko wrist watch and N.I.C., from Syed Sultan Shah alias Bashir Shah. The witness further deposed that he had seen accused persons namely Atique and Suhail in injured condition. Accused Atique had injury on the left side of his chest whereas, accused Suhail had injury on his right foot. They took the accused persons Atique and Suhail to a room and locked them therein. Sikandar Shah brought police, at the house, at 2.45 a.m. Police took into custody the culprits alongwith pistols and also effected other recoveries. P.W.5 Dr. Saeed Ahmed Medical
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Officer, P.M.C.H. Nawabshah had on 7-1-1996 at 2-00 a.m. Examined injured Syed Shabir Shah and found as under:-- "(1) Contusion 3 c.m. x 3 c.m. With central laceration and oozing of blood at posterior part of left perietal region." ' He was of the opinion that nature of the injury was simple and caused by hard blunt substance and it was fresh. He produced in Court Medico-legal Certificate concerning the above, as Exh.18. On the same day at 3-00 a.m. He examined accused Atique and found the following injuries on his person:--- "(1) of left side of chest/margin inverted, wound of entry. ' Fire-arm discharge punctured wound 1 c.m. x 1 c.m. At lower part (2) Fire-arm discharge punctured wound 1 c.m. x 1-1/2 c.m. At lower part of back of chest margin inverted laterly wound of exit. During Surgery spleen was found ruptured, Gastic performation, diaformatic tear was repaired alongwith spleenictony." ' He produced in Court, Medico-legal Certificate concerning the above as Exh.19. On the same day he had also examined accused Suhail and found as under:-- (1) Fire-arm discharge punctured wound 1 c.m. x 1 c.m. At back of Medial Aspect of Right Heelo, entry wound margin inverted. (2) Fire-arm discharge punctured wound 1-1/2 c.m. x 1/12 c.m. On lateral aspect of back of right Heel margin inverted wound Exit. (3) Lacerated wound 4 c.m. x 1/2 can. Muscle deep on right parital region. . (4) Lacerated wound 4 c.m. x 1-1/2 c.m. Muscle deep on interparital Region, X-Ray shows fracture of the Celcancoms Bone of Right Foot." ' He produced certificate regarding accused Suhail as Exh.20. He also conducted post-mortem examination of deceased Syed Bashir Ahmed and found as under:--- (1) One fire-arm discharge punctured wound oval in shape about 1-1/2 c.m. x 1-1/2 c.m. In diameter at mid of the right side of neck with bleeding margin inverted. Wound of entry. (2) One fire-arm discharge wound 2 c.m. x 2 c.m. Oval shape margin inverted on Mid of left side of neck wound of Exit. (3) Fire-arm discharge punctured wound 1-1/2 c.m. x 1 c.m. Diamter oval in shape margin diverted on right shoulder. Deep up to apex of right lung. (4) Fire-arm discharge punctured wound 1-1/2 c.m. x 1-1/2 c.m. In diameter oval in shape at back of right elbow joint margin inverted wound of entrance. (5) Fire-arm discharge punctured wound 2 c.m. x 2 c.m. Margin inverted on/front of right elbow joint. Wound of Exit. On internal examination he found:--- (1) Neck on deep dessection the blood vessel Nerve Cervical vertex. Trachea and aesophagus were found ruptured and trachea and aesophagus full of blood. Shoulder on deep dessection bullet damaged the right shoulder joint and apex of right lung plural cavity full of blood. Elbow joint, on deep dessection bullet damaged the bone of right elbow joint." ' He was of the opinion that cause of death of the deceased was haemorrhage and shock due to rupture of blood vessels, Nerv, Cervical vertibery of Neck and injury to lung. He confirmed that the injuries were caused by fire-arm weapon. He produced post-mortem report as Exh.21. In the course of his cross-examination he sated that the accused persons Atique and Suhail, were brought to him by police. P.W.6 Mehboob Ali Shah is a witness of the memo. Of arrest of the accused persons namely Suhail and Atique and the recovery of weapons from their possession. He is also a witness of the inquest report as well as arrest of accused persons Naeem alias Bhola and Dawood. He produced the same in the Court as Exh.28 and Exh.29 respectively. P.W.7 Yar Muhammad Tapedar had prepared site plan sketch of Wardat. He produced the same in Court as Exh.31. P.W.8 Bashir Ahmed, Sub-Inspector is the Investigating Officer of the case. He deposed that on 7-1-1996, on the
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report made by Sikandar Shah, he had registered F.I.R. Exh.13-A whereafter, he proceeded to the place of occurrence and arrested accused persons namely Atique and Suhail and also recovered crime weapons from their possession. He further deposed that he had also sent the aforenamed accused persons to Hospital and also effected recoveries of the robbed property. He had also arrested Naeem alias Bhola on 7-1-1996 and recovered pistol on his pointation. He also produced in Court the Chemical Examiner as well as Ballistic Expert reports as Exh.36 and Exh,37, respectively. In the course of his cross-examination he denied the suggestion as incorrect that weapons of offence were not recovered from the possession of accused persons and it were foisted on them. 5. On the conclusion of the prosecution evidence the accused persons were examined under section 342, Cr.P.C. In their above statements, they denied the charge and pleaded innocence. In answer to the question as to why P. Ws. Have deposed against them, accused Suhail stated that he had exchange of hot words, in the evening of Shab-e-Barat, with the complainant party over Atish Bazi, in the street, in front of complainant's house and he was implicated falsely on account thereof. Similar was the stand taken by rest of the accused persons. All the accused persons denied the recovery of crime weapons as well as other articles from their possession. Accused persons namely Suhail and Atique, in their above statements, further stated that they were injured during Atish Bazi in the evening of Shab-e-Barat, in the street. They also denied their arrest at the residence of the complainant in injured condition. Accused persons further stated that the dacoity had been committed by some unknown persons and they were implicated falsely due to exchange of hot words as well as on suspicion. Except accused Naeem none of the accused persons got examined themselves on oath. However, accused Atique produced his brother namely Muhammad Toufeeq as D.W.1 and cousin namely Saleem Raza as D.W. 2. Accused Naeem deposed that in the night of occurrence at 9.00 p.m. They were firing crackers. Complainant, Sikandar Ali Shah and P.W. Naveed Shah came there and forbade them from making noise. On their refusal, complainant Sikandar threatened them for dire consequence. They continued playing fire crackers uptil 10 p.m., whereafter he returned to his house. In the morning he was arrested from his house. He further stated that he did not produce any revolver or bullets before the police. He refuted the suggestion as incorrect that accused Atique had received injury while committing dacoity in the house of the complainant. He also denied the suggestion as incorrect that accused Atique was arrested in the house of Syed Bashir Shah. He also denied the suggestion as incorrect that he was deposing falsely. D.W.2 Muhammad Toufeeq deposed that accused Atique was his younger brother. In the night of Shab-eBarat, at 1.00 a.m. He and another boy namely. Muhammad Saleem came out of Akbari Mosque and observed that people had gathered in front of the Mosque. He went there and saw that Atique accused was lying on the ground in injured condition and blood was oozing out of his body. He was unconscious. He i.e, the witness hired tonga of Muhammad Saleem and took the injured to the hospital for treatment. He further stated that accused Atique was admitted in the Hospital. D.W.3 Saleem Raza deposed that accused Atique was his cousin. In the night of Shab-e-Barat he and Toufeeq came out of the mosque after prayers and saw Atique accused lying on the ground in injured condition. He was unconscious. Since he used to ply tonga, therefore, he brought his tonga and took the injured to, the Hospital where, he was admitted. ' On the application filed by Mr. Noor Nabi Memon, Advocate, D.W.4 Dr. Muhammad Ismail, Additional Medical Superintendent P.M.C.H. District Nawabshah was also called and examined. He produced certificate dated 28-8-1997 as Exh.50, concerning accused Atique. In the course of his cross-examination he stated that he had based the certificate on the endorsement made by C.M.O. And it contained the date as 13-4-1996, of P.M.C. Nawabshah. He, however, clarified that the Register does not show arrival time of the patient in the Hospital. D.W.5 Dr, Saeed Ahmad Khan was examined as D.W.5 who produced in Court photocopy of page 70 of the Ward Register as Exh.54
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containing Entry No, 1055. He also produced photo copy of the O.P.D. Register (in Door) containing entry, dated 6-1-1996 as Exh.55 and dated 7-1-1996 as Exh.56. He also produced Register OPD (Out Door), dated 6-1-1996 and 7-1-1996 as Exhs.57 and 58, respectively. 6. After hearing arguments of the learned counsel for the parties the learned trial Court convicted the accused/appellants and sentenced them to the punishment as mentioned in the opening para. Hereof. 7. We have heard Mr. Noor Nabi Memon, Advocate, learned counsel for the appellants, Shaikh Ghulam Sabir Niazi, Advocate, learned counsel for the complainant, Mr. Jawed Akhtar, Advocate, learned counsel for the State and have also perused the entire record with their assistance. 8. Mr. Noor Nabi Memon, Advocate, learned counsel for the appellants has raised the following contentions:-- (1) That the appellants could not have been convicted and punished on the basis of ocular testimony of highly interested witnesses. (2) That there was unexplained delay in despatching the crime weapons to Ballistic Expert thus, the delay had marred evidentiary value of the recoveries. (3) That the prosecution witnesses particularly eye-witnesses were not subjected to Tazkiyah-tul- Shuhood, therefore, the appellants could not have been punished on the basis of their testimony. (4) That testimony of P.W.4 Mumtaz Ali, being hearsay was inadmissible. (5) That no corroboratory evidence from any independent source was available so as to believe the occurrence. (6) That the trial Court has gravely erred in ignoring glaring and material infirmities in the prosecution case. (7) That the statutory benefit of section 382-B, Cr.P.C. Was illegally withheld by the learned trial Court. 9. Shaikh Ghulam Sabir Niazi, Advocate, learned counsel for the complainant, on the other hand, while controverting the contentions raised by the learned counsel for the appellants submitted that since guilt of the appellants was fully brought home, at the trial, by the prosecution, through independent and reliable evidence, therefore, the impugned judgment was unexceptionable. He added that in the instant case the F.I.R. Was lodged promptly and not only names of all the accused persons were mentioned therein but specific roles were also attributed to them. Besides, the incident in detail was also described therein and names of the witnesses were also given, therefore, the possibility that it was lodged after deliberations was ruled out. He further submitted that though eye-witnesses were related to the deceased yet, neither they had any enmity with the accused persons nor had they any motive to falsely implicate them, therefore, their testimonies were rightly believed by the learned trial Court. He maintained that arrest of the accused persons namely Atique and Suhail, at the place of occurrence and recovery of crime weapons from their possession established the fact that the prosecution version was true and the appellants were responsible for the offences. He submitted that recovery of stolen property from the possession of the accused persons further lends support to the prosecution version. 10. Mr. Jawed Akhtar, Advocate, learned counsel for the State, while adopting the arguments advanced by the learned counsel for the complainant submitted that since guilt of the appellants was substantially and materially brought home at the trial through reliable and independent evidence, therefore, they were rightly convicted by the learned trial Court. 11. In furtherance of his first contention that the appellants could not have been convicted and punished on the basis of ocular testimony of highly interested witnesses, the learned counsel for the appellants submitted that in the instant case, statements of the eye-witnesses i.e, Syed Sikandar Shah, Syed Shabir Shah alias Naveed Shah and Syed Taimur Shah, being real sons and closely related to the deceased, could not have been believed by the learned trial Court, in
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recording conviction against the appellants because they were interested in their prosecution. It appears that the learned counsel for the appellant has raised the contention perhaps, under a misconception because it is well-settled that mere relationship of a witness with the deceased or the complainant would not make him an interested witness if he had otherwise, no motive of his own to involve the accused. In this view we are fortified by the following reported judgments:-- (1) Saeed Akhtar and others v. The State 2000 SCM R 383 and (2) Allah Wasaya and another v. The State 2000 SCM R 746. ' It may be mentioned here that in the case of Iqbal alias Bala and two others v. The State reported as 1994 SCM R 1 the proposition has been authoritatively answered by the Honourable Supreme Court of Pakistan and it would be instructive to reproduce the relevant observations from the above judgment which reads as follows:-- ' "The principles for accepting the testimony of even an interested witness are set out in Nazir v. The State PLD 1962 SC 269. In the present case P.W.10 is not an interested witness as nothing has been brought on record to show that he had motive for falsely implicating the appellants or was personally involved in any act of enmity between the parties. In Khalil Ahmad v. The State 1976 SCM R 161 the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent corroborated by the presence of injuries on his person, human…
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