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Petitioner: THE STATE through Ulfat than and others VS Respondent: LIAQUAT HUSSAIN and others
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Iftikhar Hussain Butt Title: THE STATE through Ulfat than and others vs LIAQUAT HUSSAIN and others Case No.: Criminal Appeal No.11 of 2005 and Criminal Reference No.27 of 2004 Date of Judgment:2005-06-10 Reported As: 2005 MLD 1425 Result: Order accordingly
JUDGMENT
JUDGMENT ' As both the reference and appeal arise out of the same incident therefore, these are consolidated and being disposed of by a single judgment. ' The facts precisely stated are that Ulfat Khan the complainant lodged a report at Police Station Khuiratta alleging therein that on 10-9-2004, at 7 a.m. The complainant and his nephew Muhammad Katib, Muhammad Rasheed, Muhammad Qadeer sons of Bagh Ali and his neighbourer Muhammad Akram were proceeding towards village Dhanna from their houses for labour. Muhammad Katib and Muhammad Rasheed were proceeding ahead whereas the complainant, Ulfat Khan, Qadeer and Akbar were walking behind them. Liaquat Hussain and Muhammad Khan accused-persons waylaid. As soon as Katib and Muhammad Rasheed reached near them, Muhammad Khan raised Lalkara and asked his son to do away with their lives, whereupon, firstly, Liaquat Hussain who was armed with a .30 bore pistol, fired a shot upon the chest of Katib, who fell down. When Muhammad Rasheed tried to pick him up, Liaquat Hussain fired a second shot with the pistol upon Muhammad Rasheed which hit on his right thigh. Meanwhile, the complainant along with Qadeer and Akbar rushed to the place of occurrence but Liaquat Hussain while raising Lalkara and firing shots fled-away along with his father. When the complainant and his companions tried to pick up Katib and Rasheed, they found Katib dead whereas Rasheed was still alive. They took him to the hospital but while on the way, Rasheed also succumbed to the injuries. The occurrence was committed on the behest of Razzaq son of Sattar Din and Javed alias Jadi son of Muhammad Bashir which was witnessed by the complainant Ulfat Khan, Muhammad Qadeer, Muhammad Akbar and some other persons.
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' The motive has been stated to be a dispute of affinity in which connection an altercation took place between the complainant and the accused-persons and a case was also registered at Police Station Khuiratta. ' On this report, a case under section 302/341, 34/109, A.P.C. Was registered by Muhammad Naseer Khan S.-I. Police (P.W.22). ' On 10-9-2004, after arriving at the spot Muhammad Naseer S.-I. (P.W.22) prepared an inquest report of Muhammad Katib, deceased Exh.P.Q. He also prepared his injury sheet Exh.P.M. On the same day, the blood-stained clay and grass (vide recovery memos. Exh.P.F. And. Exh.P.G.) and three empties of pistol .30 bore (vide recovery memo Exh.P.E.) were taken into possession by him in presence of Muhammad Liaquat (P.W.4) and Muhammad Maqsood (P.W.6). ' The accused-appellants were apprehended on 10-9-2004. On the same day, Liaquat Hussain convict-appellant led to the recovery of .30 bore pistol with magazine, which was taken into possession vide recovery Exh.P.H. Attested by Muhammad Jhangir (P.W.8) and Muhammad Ilyas (P.W.9). ' After the post-mortem, on 10-9-2004, the blood-stained clothing of Muhammad Katib deceased was taken into possession by Muhammad Naseer S.-I. Police (P.W.22) vide recovery memo. (Exh.P.C.) in presence of Muhammad Yousaf (P.W.5) and Muhammad Rafique (P.W.7). On the same day, he prepared the site-plan Exh.P.P. ' Mureed Hussain Shah, A.S.-I., Police (P.W.20) prepared an inquest report Exh.P.L. Of Muhammad Rasheed deceased on 10-9-2004. He also prepared an injury sheet of above stated deceased Exh.P.K. ' On 14-9-2004, Muhammad Naseer S.-I. Police got prepared the site-plan Exh.P.J. By Muhammad Yaqoob Patwari (P.W.14). ' On 30-9-2004, Muhammad Naseer, S.-I. Police took into possession the blood-stained clothing' of Muhammad Rasheed deceased vide recovery memo. Exh.P.D. Attested by Muhammad Yousaf (P.W.5) and Muhammad Rafique (P.W.7). ' In the light of document Exh.P.T., it was reported by Chemical Examiner vide its report dated 25-9- 2004 that the clay and clothes of both the deceased were stained with human blood. ' It was reported by the Director, Forensic Science Laboratory Punjab in the light of document Exh.P.U. Vide its report dated 12-10-2004, that the three crime empties were found to have been fired by .30 bore pistol recovered from Liaquat Hussain, accused-appellant. ' The post-mortem of the dead bodies of Muhammad Katib and Muhammad Rasheed deceased was performed on 10-9-2004 by Dr. Muhammad Is'haq C.M.O. Rural Health Centre Khuiratta vide postmortem reports Exh.P.N. And Exh.P.O. He noticed the following injuries on the dead body of Muhammad Katib deceased caused by firearm:-- (1) An entry wound on front of chest just right to midline 11, c.m. Below clavicle bone and at level of 4th intercostal space on margins of sternum. It is 0.5 c.m. In diameter. (2) An exit wound on right side of back of chest 17, c.m. Below the upper border of scapula and 8, c.m. Lateral to midline. It is 0.9, c.m. In diameter. ' Tract of bullet:- ' Bullet entered through above mentioned entry wound, went through medial margin of right lung, went through aorta just on its emergence from heart and ruptured it. Struck with vertebral column changed its direction and went out of exit wound. ' He also noticed the following injuries on the dead body of Muhammad Rasheed deceased caused by fire-arm:-- (1) An entry wound on upper part of right thigh 0.5, c.m. In diameter with inverted margins. No tattooing or powder marks present. Wound is 13, c.m. Below anterior superior iliac spine.
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(2) An exit wound on upper part of left thigh 14, c.m. Below the anterior superior iliac spine. It has 0.7, c.m. Diameter with everted margins. (3) An entry wound on antromedial aspect of left wrist joint 0.5 c.m. In diameter. (4) Exit wound on posteromedial aspect of same wrist joint 0.9 c.m. In diameter. Tract of Bullet:-- (1) Bullet entered from right side of upper thigh, went through anterior compartment. Pierced femoral arteries and veins on both sides also damaged the arteries of urethra spermatic cords of both sides, also injured the urethra and went through anterior compartment of left thigh and exited through exit wound. (2) Bullet entered on anteromedial aspect of left wrist fractured lower end of ulna bone and exited. ' During the investigation, the offence under section 109, A.P.C. Was deleted and the challan was submitted against the accused-appellants under sections 302/341/34, A.P.C. Read with sections 13/20/65, Arms Act, before District Criminal Court Kotli on 28-9-2004, whereas benefit of section 169, Cr.P.C. Was extended to Muhammad Razzaq and Javed Iqbal alias Jaidi accused-persons. The accused-appellants during their examination under section 242, Cr.P.C. Pleaded not guilty and opted for the trial. ' Ulfat Khan, complainant (P.W.1), Muhammad Qadeer (P.W.2), Muhammmad Akbar (P.W.3), Muhammad Liaquat (P.W.4), Muhammad Yousaf (P.W.5), Muhammad Maqsood (P.W.6), Muhammad Rafique (P.W.7), Muhammad Jhangir (P.W.8), Muhammad Ilyas (P.W.9), Muhammad Razzaq (P.W.10), Ahmed Khan (P.W.11), Muhammad Mehrban (P.W.13), Muhammad Yaqoob Patwari (P.W.14), Dr. Muhammad Is'haq (P.W.15), Kabeer Hussain Shah constable No.103 (P.W.18), Muhammad Siddique Khan Head-constable police (P.W.19), Mureed Hussain A.S.-I. Police (P.W.20), Sardar Shadab Ahmed Khan D.S.P. (P.W.21) and Muhammad Naseer Khan S.-I. Police (P.W.22) were produced in support of the prosecution tale, whereas P.Ws.12, 16 and 17 were given up by the prosecution. ' After completion of the prosecution evidence on 22-11-2004, an opportunity was provided to the accused-appellants under section 342, Cr.P.C. To furnish their explanation about the evidence and all circumstances appearing against them. Both the accused-appellants pleaded that false evidence was produced against them on account of enmity and they claimed to be innocent. ' The District Criminal Court Kotli, after completion of the trial,. Awarded death sentence to Liaquat Hussain accused on two counts under section 302(A), A.P.C. And one month simple imprisonment under section 341, A.P.C. And 5 years simple imprisonment under section 13/20/65, Arms Act, whereas Muhammad Khan, accused was awarded life imprisonment under section 302/34, A.P.C. And one month simple imprisonment under section 341, A.P.C. Vide its judgment/order dated 30-11- 2004. Feeling aggrieved and dissatisfied, both the convict-appellants Liaquat Hussain and Muhammad Khan have challenged the aforesaid conviction and sentence before this Court whereas a reference has also been made by the trial Court for confirmation of the death sentence as required by section 338-D, A.P.C. The aforesaid judgment/order of District Criminal Court Kotli dated 30-11-2004 is the subject-matter of the appeal and reference titled above. ' Abdul Aziz Ratalvi, Advocate the learned counsel for the convict-appellants argued with vehemence that the trial Court fell in grave error while passing the impugned judgment. According to him, the appellants were implicated in the occurrence on account of enmity. The learned counsel further contended that the prosecution witnesses are closely related to the deceased. Ulfat Khan (P.W.1) is uncle of the deceased whereas Muhammad Qadeer is their brother and Muhammad Akbar is their brother-in-law, therefore, being interested witnesses their evidence cannot be taken into consideration. The learned counsel also submitted that the perusal of the statement of Ulfat Khan (P.W.1) shows that he is not a reliable witness. He pointed out that according to the prosecution case, the F.I.R. Was lodged at 9-00 a.m. Whereas according to Ulfat Khan (P.W.1), the F.I.R. Was lodged at about 11-00 a.m. The learned counsel further contended that
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Ulfat Khan (P.W.1) has deposed that Liaquat Hussain fired two shots whereas Muhammad Qadeer (P.W.2) and Muhammad Akbar (P.W.3) have testified that Liaquat Hussain fired three shots, therefore, the version of the P.Ws. Being inconsistent and self-contradictory is not worthy of any credence. The learned counsel maintained that according to the post-mortem report two shots were fired upon Muhammad Rasheed, deceased, but according to the P.Ws. One shot was fired upon him, therefore, the ocular version is in conflict with the medical evidence. The learned counsel pressed into service the submission that the eye-witnesses' account has not been sufficieritly supported by the corroboratory evidence. The learned counsel also submitted that the recovery witnesses do not belong to the locality, therefore, the mandatory provision of section 103 Cr.P.C. Was not followed on this account, the recovery evidence is not reliable. The learned Counsel laid great stress upon the point that the evidence of Dr. Muhammad Is'haq (P.W.15) is also not worthy of any credence because it is not possible that a bullet of .30 bore pistol could fracture the ulna of the deceased after crossing both the thighs. The learned counsel criticized the evidence of Muhammad Naseer Khan, the Investigating Officer, and submitted that he intentionally did not state the timings of the investigation in order to defend the illegalities of the investigation. According to the learned counsel, the occurrence took place at.Night but the time of occurrence was changed with an intention to implicate the accused-appellants in the case in fact both the deceased were done to death by the complainant. The learned counsel vigorously argued that according to Mureed Hussain Shah A.S.-I. Police (P.W.20), he received information at 7/7-15 a.m. At Police Station Khuiratta, therefore, it was not possible that the occurrence had taken place at 7-00 a.m. The learned counsel further maintained that the prosecution case is full of material irregularities and serious contradictions and it is based upon surmises and conjectures but the trial Court failed to consider that the benefit of even slightest doubt goes in favour of the accused and the prosecution is bound to prove its case beyond any reasonable doubt. The learned counsel zealously argued that the trial Court also committed an error while imposing the sentence of life imprisonment to Muhammad Khan on account of mere raising a Lalkara, according to him no overt act has been attributed to Muhammad Khan, but the complainant party involved both the father and son in the case so that nobody should remain outside to defend the case of the accused-persons. The learned counsel finally submitted that the prosecution has miserably failed to appreciate the evidence in its true perspective, therefore, the impugned judgment is not sustainable, which may be set aside. In support of the contentions, the learned counsel cited the following authorities:-- (1) PLD 1969 SC 127. (2) PLD 1986 Lahore 391. (3) 1996 PCr.LJ 817. (4) 2004 PCr.LJ 1239. (5) PLD 2004 Quetta 123. (6) 2005 PCr.LJ 53, 83 and 138. ' Rafiullah Sultani, Advocate, the learned counsel for the complainant controverted the arguments raised by the learned counsel for the convict-appellants and submitted that both the accused- appellants have been nominated in the F.I.R. And a clear role has been attributed to them, which has also been proved by the prosecution evidence without any shadow of doubt. The learned counsel argued that the prosecution has produced three eye-witnesses, who are unanimous on the point that on raising a Lalkara by Muhammad Khan, co-accused, his son Liaquat Hussain fired three shots upon Muhammad Katib and Muhammad Rasheed, the deceased, one after another. The learned counsel pointed out that ocular version has been 'fully supported by sufficient corroboratory evidence and three empties along with blood-stained clay were recovered from the spot whereas the weapon of offence .30 bore pistol was recovered at the instance of Liaquat
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Hussain, accused-appellant and the medical evidence produced by the prosecution further confirm the- ocular version. The learned counsel further submitted that the fire-arm expert has also reported that three empties recovered from the spot were found to be fired by .30 bore pistol taken into possession at the instance of Liaquat Hussian, accused. According to the learned counsel, the place, the time and the manner of occurrence have been fully proved by the prosecution evidence. The learned counsel pointed out that the accused-persons have also not taken any clear defence. The learned counsel also argued that the style of cross-examination and the perusal of suggestions made by the defence shows that the accused-appellants have simply defended the occurrence and taken the plea of alibi but neither a single witness was produced in support of their plea nor the accused-appellants got their statements recorded under section 340, Cr.P.C. To prove their version, therefore, the defence has miserably failed to prove its version. The learned counsel pressed into service the submission that the evidence of Ulfat Khan (P.W.1) cannot be read in isolation rather his whole statement has to be taken into consideration, which shows that the occurrence took place at 7-00 a.m. And F.I.R. Was lodged at 9-00 a.m. And if for the sake of arguments, the evidence of Ulfat Khan is brushed away, even though the veracity of the F.I.R. Is not injured, which has been fully supported by the evidence of two other eye-witnesses. The learned counsel zealously argued that the evidence of a related witness cannot be ignored unless it is proved on record that he has falsely implicated the accused-appellants on account of enmity. According to the learned counsel the motive has been alleged and it has been proved by the prosecution evidence that the accused-appellants were annoyed. With the complainant party on account of affinity and in furtherance of their common object they put to death both the deceased. The learned counsel further maintained that the defence has not challenged the main story of the occurrence deposed by the eyewitnesses, therefore, the same stands admitted on the part of the defence. The learned counsel submitted that the occurrence took place in the bright hours of the day and the parties are closely related, therefore, the question of identification of the accused- persons does not arise. While dealing with the injuries of Muhammad Rasheed, deceased, the learned counsel argued with vehemence that when Liaquat Hussain fired a shot upon Muhammad Katib, Muhammad Rasheed deceased went to pick him up and at that time Liaquat Hussain fired another shot upon Muhammad Rasheed, which hit him on his thighs and arm. According to him, while considering the position and posture of Muhammad Rasheed, deceased, the entry of bullet in both thighs and thereafter in the ulna is quite possible, which has been fully supported by Dr. Muhammad Is'haq (P.W.15). The learned counsel further maintained that if any contradiction appears between ocular version and medical evidence, the ocular version has to be considered and not the medical evidence. The learned counsel vigorously argued that the provisions of section 103, Cr.P.C. Are not applicable when a recovery is made at the instance of an accused-person, therefore, it was not incumbent upon the Investigating Officer to find out the witnesses of locality for recovery purpose. The learned counsel finally submitted that if the conscience of the Court is convinced by the evidence of a single witness that the offence was committed by the accused, even such evidence is sufficient for conviction. In support of the arguments, reliance was placed upon the following case-laws:-- (1) 1979 PCr.LJ 113. (2) 1980 PCr.LJ 654. (3) 1983 PCr.LJ 298. (4) 1983 PCr.LJ 761. (5) PLD 1984 SC (AJK) 182. (6) 1987 PCr.LJ 1689. (7) PLD 1992 SC (AJK) 20. (8) PLD 1995 Kar.
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469. (9) 2000 YLR 2750. (10) 2005 PCr.LJ 226 = 2005 PCr.LJ 464. ' Zaheer Babar Chughtai, the learned PP appearing on behalf of the State, has fully owned and supported the arguments raised by the learned counsel for the complainant and submitted that Muhammad Mehboob was abandoned by the prosecution but the accused-appellants did not produce him in the defence, therefore, in this regard the defence cannot be allowed to take any benefit. ' I have given my deep consideration to the arguments addressed at Bar, perused the record with care and the case-law cited. The prosecution case is based on ocular version, therefore, it will be appropriate to firstly deal with eye-witnesses' account. Ulfat Khan (P.W.1), the complainant, lodged an F.I.R., nominated the accused-appellants and fully supported the manner of occurrence during his statement wherein he testified that when he along with Muhammad Qadeer, Muhammad Rasheed and Muhammad Akbar was proceeding towards village Dhanna for the purpose of labour, both the accused-appellants waylaid and launched an attack upon both the deceased. Muhammad Khan raised a Lalkara in consequence of which Liaquat Hussain son of Muhammad Khan fired a shot with .30 bore pistol upon the chest of Muhammad Katib, who fell down on the ground. When Muhammad Rasheed went close to him to pick him up, Liaquat Hussain fired another shot upon Muhammad Rahseed, which hit him upon his right thigh, who also got injured and fell down. When he went near the deceased found Muhammad Katib dead whereas Muhammad Rasheed was still alive, who was taken to the hospital but while on the way he succumbed to the injuries. He further deposed that the occurrence was witnessed by Muhammad Qadeer and Muhammad Akbar. ' Muhammad Qadeer, a brother of the deceased, also stated that when he along with the complainant, both the deceased and Muhammad Akbar was proceeding towards village Dhanna for labour both the accused-appellants waylaid. Muhammad Khan raised a Lalkara and his son Liaquat Hussain fired a shot upon the chest of Muhammad Katib and when Muhammad Rasheed went to pick him up, Liaquat Hussain fired another shot upon Muhammad Rasheed, which hit him on his right thigh. Thereafter Liaquat Hussain fired another shot, which missed the target. Muhammad Akbar (P.W.3) also corroborated the deposition of both the eye-witnesses and stated that on the fateful day he was proceeding with the complainant, both the deceased and Muhammad Qadeer (P.W.2) for labour. Both the accused-appellants waylaid and launched an attacked. Muhammad Khan raised a Lalkara whereupon Liaquat Hussain fired a shot of pistol upon Muhammad Katib, which hit him upon his chest, who fell down upon the earth and when Muhammad Rasheed went to pick him up, Liaquat Hussain fired another shot, which hit upon the right thigh of Muhammad Rasheed. Thereafter Liaquat Hussain fired third shot but it did not hit any person. The perusal of above stated ocular version shows that all the three eye-witnesses are unanimous on the point that on raising a Lalkara by Muhammad Khan, his son Liaquat Hussain fired two shots with a pistol upon both the deceased. However, Ulfat Khan has stated that Liaquat Hussain fired two shots whereas Muhammad Qadeer and Muhammad Akbar have deposed that accused Liaquat Hussain fired three shots. It has been proved on the record that only two shots hit the deceased and the third shot missed the target, therefore, the above stated discrepancy about the third fire, coming from Ulfat Khan is not fatal to the prosecution case because the deceased were done to death by two shots of the pistol and the third shot missed the target. It is settled principle of law that the minor infirmities and discrepancies do not cast doubt upon the main story of the prosecution if the ocular account is cogent and worthy of credence on its material particulars rather such minor contradictions have to be ignored.
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It will not be out of the place to mention here that the main story of occurrence about firing shots by Liaquat Hussain upon the deceased and raising Lalkara by Muhammad Khan was not challenged in the cross-examination, therefore, it will be deemed to have been admitted by the defence. In this manner, the prosecution case stands fully proved by the ocular version. My this view finds support from the principle enunciated in Willayat Khan's case (PLD 1985 SC (AJK) 41) and in Mst. Farooq Bibi's case (1999 CLC 1358) which was also affirmed in a case reported as Abdul Latif v. Sifarish Ali Khan's case (2004 YLR 1663) in the following manner:-- "So far as the principle laid down in the authorities cited by the learned counsel for the appellant is concerned, it is correct that if the statement of a witness is not challenged in the cross- examination, the same is considered to have been admitted by the opposite party." ' The next question which needs determination is as to whether the evidence of eye-witnesses being closely related to the deceased and the complainant is confidence inspiring or not? It is admitted on the record that the complainant is uncle of both deceased whereas Muhamthad Qadeer is their brother and Muhammad Akbar is their brother-in-law. In this manner, the P. Ws. Are not only related to the deceased but they are also co-related. It is celebrated principle of criminal jurisprudence that mere friendship or relationship does not make a witness an interested one and testimony of such a witness cannot be brushed away on such ground, who otherwise seems to be natural and truthful witness. An interested witness is one who has a motive for falsely implicating an accused, therefore, relationship with the deceased will not be sufficient to discard the veracity of a witness if the evidence rings true. In the instant case, the eye-witnesses have no such 'animus so as to falsely implicate" or substitute the accused-appellants in the commission of murder. Although the parties have no cordial relationship between them and on account of affinity and dispute of land they are also involved in criminal litigation but it is not humanly possible for an' uncle or a brother to involve his own nephew or first cousin in a double murder case on account of dispute of affinity or criminal litigation, instead of real culprits. It may be stated here that an independent or an impartial' witness is not always reliable and a related witness is not always a liar but it is always the quality of evidence and value of testimony which matters. If the conscience of the Court is satisfied that the evidence of an eye-witness is cogent, natural and confidence inspiring, it can always be relied upon without any further. Corroboration. In this regard, a host of case-law can be referred to but I have decided to quote only few cases. The view taken in the case reported as Muhammad Sharif v. The State (PLD 1978 SC (AJK) 146), was affirmed in Mehtab Khan's case (PLD 1979 SC (AJK) 23), Niaz Ahmad alias Jaja's case (PLD 1983 SC (AJK) 211), Muhammad Khalid's case (1992 SCR 249), Ibrar Hussain Shah's case (PLD 1992 SC (AJK)…
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