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Petitioner: FAISAL HABIB VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Raja Afrasiab Khan, Abdul Majeed Tiwana, Muhammad Rafiq Tarrar Title: FAISAL HABIB vs THE STATE Case No.: Criminal Appeal No,2/SAC/L of 1993 Date of Judgment:1993-04-10 Reported As: 1993 P Cr. L J 1520 Result: Appeals dismissed
JUDGMENT
JUDGMENT ' JUSTICE ABDUL MAJID TIWANA MEMBER-II.--- This judgment shall also deal with and dispose of Cr1. Appeal No,4/SAC/93 filed by the State against the acquittal of Zulfiqar Habib co-accused, both arising out of the judgment dated 30-12-192, by which the learned Judge, Special Court for Speedy Trials, Lahore, convicted Faisal Habib appellant. (1) Under section 302, P.P.C. For the murder (Qatl-e-amd) of Muhammad Sarwar, sentenced him to imprisonment for life as Tazeer and also directed him to pay compensation of Rs,50,000 to the heirs of the deceased under section 544-A, Cr.P.C. Or in default to further undergo imprisonment for 6 months; and (ii) Under section 379, P.P.C. For committing theft of motor-bike of the deceased, sentenced him to 3 years' R.I. ' Both the substantive sentences were directed to run concurrently and the convict was given the benefits of section 382-B, Cr.P.C. Zulfiqar Habib co-accused was, however, acquitted on benefit of doubt. 2. The prosecution case, as it gleans out from the evidence led by it, was that Muhammad Sarwar (deceased) being a resident of Block No, 14, Bagh-eUmar, Sargodha was running a juice shop in the Chowk of New Urdu Bazar, Block No,11, opposite Government High School No,1, Sargodha. Faisal Habib appellant and his brother Zulfiqar Habib acquited accused, were residents of Street No,5 of Muhammadi Colony, Sargodha.They were studying in the aforesaid school and used to visit the deceased's shop for drinking juice and in this way they became intimately known to him (deceased).
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3. On 7-1-1992 at about 10-30 a.m When Muhammad Sarwar (deceased) was present in his house alongwith his Phuphizad Khalid Mahmood Faisal Habib appellant and his brother Zulfiqar Habib acquitted accused, both came there and asked him (deceased) to accompany them for an outing on the Canal Bank as it was a pleasant day. In order to oblige Them Muhammad Sarwar (deceased) took out his new Honda motor-bike and making both the brothers sit behind him, drove it away on the bank of Lower Jhelum Canal towards Bhalwal. Continuing the journey, when they reached in the area of Chak No,34/N.B at a deserted place, Faisal Habib appellant asked Muhammad Sarwar (deceased) to stop the motor-bike as they wanted to have a stroll. He obeyed but no sooner as he came down from the motor-bike, than Faisal Habib appellant pulled out his revolver from the pocket of his shirt and on revolver point asked him (deceased) to hand over the motor-bike to him, Muhammad Sarwar (deceased) resisted his demand but meanwhile Faisal Habib appellant started firing at him, hitting his right shoulder in the vicinity of left ear and left eye, right side of back and waist, as a result of which he fell down. When he was so lying, Zulfiqar Habib acquitted accused snatched away the key of the motor-bike from him and both the brothers drove away his motor-bike on the Canal Bank towards Bhalwal. The occurrence was witnessed by Muhammad Razam complainant the real brother of the victim, as also by Muhammad Yasin P.W., who were incidentally coming from the direction of Bhalwal on a motor-bike. They gave him support and on their query he (injured) told them that he had been brought by Faisal Habib appellant and his brother Zulfiqar Habib acquitted co-accused from his house in the presence of Khalid Mahmood P.W. On the pretext of a walk and, after causing him injuries with fire-arm, they had snatched away his motor-bike worth Rs,38,000. Meanwhile Doctor Abdul Rehman, Farm Superintendent of Live Stock, Khizar Abad, came on a jeep from the direction of Bhalwal and the injured was transported by him to Civil Hospital, Sargodha, where he was admitted. 4. Muhammad Ramzan complainant (P.W.12), after getting him injured brother medically examined and obtaining his medico-legal report, went to Police Station (Saddar) Sargodha where he lodged the report (Exh.P.T.) at about 12 noon, incorporating the above facts therein. 5. After the registration of the case, S.I. Matiullah (PW 14) accompanied the complainant to the place of occurrence where he prepared its rough sketch, collected blood-stained earth and recorded the statements of P.W.s. He then went to Civil Hospital, Sargodha and tried to record the statement of the injured after obtaining the opinion of the doctor about his fitness to make statement, but the doctor opined that the injured was not in a position to make statement. He then recorded the statements of some other P.Ws. 6. In order to arrest the accused, he, accompanied by Muhammad Ramzan complainant and A.S.I. Muhammad Nazir, went to Muhammadi Colony, Sargodha and reaching Street No,5 thereof, he, on the pointing of the complainant, arrested Faisal Habib appellant who was coming on the snatched-away motor-bike of the injured. On the identification of the motor-bike by the complainant that it was snatched away motor-bike of the injured, he seized it, vide memo. (Exh.P.V.) which was attested by the complainant and A.S.I. Muhammad Nazir. On the personal search of Faisal Habib appellant he recovered an unlicensed revolver (P.5) which he seized vide recovery memo. (Exh.P.X.) attested by the same set of witnesses. He arrested Zulfiqar Habib co- accused on 8-1-1992 when he was produced by his father. He went on frequently visiting Civil Hospital from 8-1-1992 to 17-1-1992 for recording the statement of Muhammad Sarwar injured but the doctor did not certify his ability to do so. Eventually on 18-1.1992 the doctor, on his application (Exh.P.0.), opined that Muhammad Sarwar injured could make a statement and he accordingly recorded his statement (Exh.P.CC.), duly signed by the injured. On 31-1-1992, on the receipt of an intimation that Muhammad Sarwar injured had died in the hospital, he went there and, after preparing the inquest report, sent the dead body to the mortuary for post-mortem examination.
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Then he was posted out and the challan was submitted by his successor on the basis of the investigation already completed by him. 7. On the commencement of trial in the Special Court for Speedy Trials, Lahore, Faisal Habib appellant and his brother Zulfiqar Habib acquitted accused both were charged for the murder of Muhammad Sarwar and also for snatching away his motor-bike in furtherance of their common intention. They pleaded not guilt and the prosecution led evidence against them by producing as many as 15 witnesses. To be a little more precise, Dr. Muhammad Aslam Chaudhry, Medical Officer, D.H.Q. Hospital Sargodha (P.W.1) deposed that on 7-1-1992 at 11-30 a.m Muhammad Sarwar aged about 32 years resident of Block No, 14 Sargodha was brought to the Emergency Ward by Dr. Abdul Rehman, Superintendent, Khizar Abad Livestock Farm, who was a passerby. According to him, the injured was suffering from five injuries caused by a firearm first, with inverted margins and slight blackening around 1-1/2 c.m. x 1 c.m. On the top of right shoulder passing through the skin; second, with inverted margins having slight blackening around 1/2 c.m. x 1/2 c.m. On the left cheek 1 c.m. Below and lateral from outer angle of left eyc having an exist just below the tragust with averted margins 1/2 c.m. x 1/2 c.m. On the left ear; third, an entry wound 1/2 c.m. x 1/2 c.m. With blackened margins about 4 c.m. Towards the left of second injury, also having an exit wound 3/4 c.m. x 3/4 c.m. In the pinna of left ear; fourth, an entry wound 1/2 c.m. x 1/2 c.m. With blackened margin on the middle part of right side of chest 3 c.m. Below right scapular angle travelling downward upto the right frontal chest 4 c.m. Below the right nipple with lead of the bullet stuck below the skin; and fifth, an entry wound 1/2 c.m. x 1/2 c.m. With blackened margin on the right renal area 12 c.m. Lateral from midline from back. In the opinion of the doctor, injury No,1 was jurrh-Diamahya while the rest were kept under observation all caused within the duration of one hour. He proved his medico- legal report (Exh.P.A.) and diagram of injuries (Exh.PA/1). 8. The next witness was Doctor Abdul Latif, Surgical Specialist, D.H.Q. Hospital, Sargodha (P.W.2). He testified that on 7-1-1992 Muhammad Sarwar injured was referred by the Emergency Ward of, the Hospital to him at 11-30 a.m. As it was a case of multiple fire-arm injuries needing immediate surgical operation of abdomen. According to him, he operated upon him and round that his abdomen was full of blood and there was rupture of right lobe of live, multipal perforation of small intestine, rupture of misenary and retroperitoneal haemotoma. He deposed that he repaired the liver and the parts of the small intestine whereafter he closed the abdomen, leaving two drains. He stated that the injured remained admitted to the hospital of his Ward up to 31-3-1992 during which he was given proper post-operative treatment. However, he succumbed to his fire-arm injuries on 31-1-1992 despite proper operation and treatment. He proved the bed head ticket and the surgical notes prepared by the House Surgeon on his dictation. 9. In reply to a question of the defence counsel, he stated that he could not tell exact cause of death as he did not conduct post-mortem examination. In reply to another question he deposed that he could not controvert the suggest that some time the death occurred due to operational errors or on account of the negligence of the Surgeon or Doctor. 10. Dr. Muhammad Iqbal, Medical Officer, D.H.Q. Hospital, Sargodha (P.W.3) proved operation notes (Exh.P.B.) consisting of 72 pages. He stated that these notes also bore his signatures as he was medical officer working in the Surgical Ward with Dr. Abdul Latif Chaudhry, the Surgeon Specialist. He deposed that on 7-1-1992 the police had enquired from him through a Rukka (Exh.P.C.) about the fitness of Muhammad Sarwar injured about his ability to make statement and he had replied in negative. Similarly, according to him, the police went on enquiring from him about the injured's ability to record his statement from 9th to 17th of January, 1992 through Rukkas (Exh.P.E. To Exh.P.N.) and he always opined in negative and eventually on 18-1-1992 he expressed his opinion in affirmative. This witness was recalled and again cross-examined on 29-12-1992 and in reply to a
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question of the learned defence counsel he testified that, as per operation notes (Exh.P.B.), the kidney had not been toughed or repaired by the Surgeon. 11. Yet another doctor examined in this case was Dr. Farooq Niazi (P.W.4). He deposed that on 31-10- 1992 when he was posted as Medical Officer in the Casualty Ward of D.H.Q. Hospital, Sargodha, he had conducted post-mortem examination on the dead body of Muhammad Sarwar and noticed 10 healed scars of some of injuries suffered by him and the others of surgical wound on its different parts. According to him, on dissection he had found right chest cavity full of blood with a hole in the lower lobe of right lung, a tear in the posterior superior surface of liver which stood stitched. There was anstomsis and in it a mild leakage in the small intestine. He added that he also noticed multiple adhesions in the small intestines and there was damage anteromcdically near the hilum with subscapulae hacmotoma alongwith pus formation in the right kidney. Death, in his opinion, occurred due to septicemia and plural effusion caused by injuries Nos.1 and 7 leading to cardiorespiratory failure. According to him, injuries Nos. 1 and 7 was caused by fire-arm and were ante-mortem and injuries Nos.8, 9 and 10 were surgical wounds. He stated that injury No,5, which had damaged the liver and caused plural effusion, and injury No, 7, which had damaged the kidney, were sufficient even individually to cause death in the ordinary course of nature, while injuries Nos.1 to 4 and 6 were simple in nature. He proved post-mortem report (Exh.P.B.) and diagram of injuries (Exh.P.P./A). 12. Zahur Ahmad (P.W.5) had identified the dead body of Muhammad Sarwar at the time of post- mortem examination, Constable Bashir Ahmad (P.W.6) had transmitted a sealed parcel from the Police Station to the Office of Chemical Examiner. Constable Abdul Qayyum (P.W.7) had escorted the dead body of Muhammad Sarwar from the Surgical Ward of the hospital to the mortuary and after the post-mortem examination had delivered the clothes of the deceased to the Investigating Officer; Head Constable. Muhammad Afzal (P.W.8) had kept sealed parcels pertaining to this case in safe custody in the police Malkhana before handing them over to Muhammad Bashir Constable for carrying the same on the relevant officer at Lahore. Muhammad lrshad Patwari (P.W.9) had prepared the site plan of the place of occurrence. Inspector/S.H.O. Abdul Sattar (P.W.10) had got prepared the site plan from the Patwari and did nothing else. All these were formal witnesses. Their statements need no detailed discussion. 13. Khalid Mahmood (P.W.11) had testified that on 7-1-1992 at 10-00 or 10-15 a.m. When he was present in the house of Muhammad Sarwar (deceased), who was his Phuphizad, he, in response to a bell-call, went outside the house and saw the two accused, namely, Faisal Habib and Zulfiqar Habib, standing outside and asked him to call out Muhammad Sarwar. According to him, he delivered their message to Muhammad Sarwar (deceased) who went out and in his presence Faisal Habib appellant asked him to accompany them to the Canal Bank as the weather was pleasant and to oblige them, he took out his motor-bike and they all the three went away on it. He further deposed that he already knew both the accused as he had a shop in the Chowk near the School and they used to visit his shop. 14. Muhammad Ramzan complainant (P.W.12) and Muhammad Yasin (P.W.13) gave the eye-witness account of the occurrence. Their testimony, by and large, finds reflection in the above narration of the prosecution case and the same might be subjected to detail appraisal, where necessary. 15. The next witness was S.I. Matiullah (P.W.14). The part played by him as an Investigating Officer had already been outlined. 16. The last witness was Dr. Abdul Rehman Khan (P.W.15). He had not been cited as a prosecution witness in the calendar of witnesses and had been examined as such on the request of prosecution made during the trial. He testified that during the days of occurrence he was posted as Farm Superintendent, Livestock Farm, Khizar Abad, District Sargodha and on 7-1-1992 when he was coming in his official jeep on the bank of Lower Jhelum Canal for attending a meeting with the
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Deputy Commissioner and reached in the area of Chak Subedaran at 11 a.m. He saw a person lying injured on the Canal Bank and another person present with him. He deposed that he stopped his vehicle near the injured, whose name he later came to know as Muhammad Sarwar, and the person present near him, was a Sub-Engineer of Irrigation Department and was already known to him by face, told him that the injured had been fired at and he should be taken to the hospital. According to him, the injured himself told him that two brothers, who were sons of an Advocate of Sargodha, had fired at him and injuried him. He added that the injured had told their names to him but he could not recollect the same (at the time of making statement). Anyhow, he placed the injured in his jeep and after taking him to the Emergency Ward of Civil Hospital, Sargodha, left him there. He further stated that the Sub-Engineer and other person, who was present in the nearby field, had also accompanied the injured in his jeep to the hospital. He, however, expressed his inability to recollect if the injured had told the name of his assailant as Faisal Habib but at the same time failed to contradict that the injured had told him that the person who had fired at him with pistol was Faisal Habib. In reply to another question, he categorically repudiated that the injured had told him that Zulfiqar Habib had snatched away the key of motorbike from him and drove it away from the spot. In the cross-examination he stated that after attending the official meeting he again went to the hospital in the afternoon on the same day where Majid Ullah D.S.P. Had told him that the injured had been operated upon whereafter he went to his Farm. In reply to a question of the defence counsel, he stated that he never appeared before the police and nothing transpired between him and D.S.P. Majid Ullah except what he had already stated. He denied the suggestion of the defence that he made a false statement that Muhammad Sarwar injured had told him on the spot that the sons of Habib Ullah Advocate had caused him fire-arm injuries. He admitted that he was serving in the Livestock Department which was under the charge of Provincial Minister Ch. Aamer Cheema, M.N.A. Sargodha. However, he denied the suggestion that he was deposing at their instance or under their pressure. 17. The appellant and the acquitted co-accused, in their respective statements recorded under section 342, Cr.P.C., denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication, professed innocence. They declined to appear as their own witnesses and to make statement on oath under section 340(2), Cr.P.C. Faisal Habib appellant, however, brought on the record certified copy (Exh.P.B.) issued by the College Authorities, indicating the fact that he had been student of Government College, Sargodha from 1990 to 1992, copy of birth certificate (Exh.D.C.), showing that he was about 17 years old on the day he was making statement. He also placed on the file to certified copy of birth entry of his brother Zulfiqar Habib (Exh.D.D.) indicating that he was 14 years old. 18. On the conclusion of the trial, the learned trial Judge, by the judgment now under challenge, after acquitting Zulfiqar Habib co-accused on benefit of doubt, convicted and sentenced Faisal Habib appellant in the manner aforesaid. Aggrieved by his findings, where the convict had filed appeal against his conviction, the State has preferred appeal against the acquittal of Zulfiqar Habib. Both the appeals are being disposed of together. 19. It was argued on behalf of Faisal Habib appellant that: (i) the eye-witnesses, namely, Muhammad Ramzan complainant (P.W.12) and Muhammad Yasin (P.W.13) besides being closely related to Muhammad Sarwar (deceased), were chance witnesses and they were unworthy of reliance; (ii) the dying declaration (Exh.P.CC.) was a fabricated piece of evidence, having been written by the Investigating Officer himself despite the fact that the deceased had remained alive in the hospital for a number of days and some local Magistrate could conveniently be called for recording the same but this course was not adopted;
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(iii) Dr. Abdul Rehman (P.W.15) was never cited as a prosecution witness in the calendar of witnesses and his deposition suffered from many legal informities; (iv) the recovery of the motor-bike of Muhammad Sarwar (deceased) from Faisal Habib appellant was fake, it was not witnessed by any independent witnesses; (v) the "last seen" evidence of Khalid Mahmood (P.W.11), who was also a near relation of the deceased, was a cooked up affair and was altogether devoid of substance as there was no possibility of his being present in the house of deceased when the appellant and his acquitted accused allegedly took him out of his house on a pretext; and (vi) Faisal Habib appellant was hardly a little more than 16 years old at the time of occurrence, as per his birth certificate (Exh.D.C.), and since he was minor within the meaning of section 229, P.P.C. And in view of the provisions of section 306, P.P.C. Read with section 308, P.P.C, even if he committed the murder of Muhammad Sarwar under some compelling circumstances, he was, at the most, liable to pay only Diyat and no other sentence could be awarded to him. 20. On the contrary, it was argued on behalf of the State in opposition of the appeal of Faisal Habib appellant and in support of the State appeal against acquittal of Zulfiqar Habib co-accused that the case against both the brothers stood amply proved by reliable ocular evidence, supported by circumstantial evidence of "last seen", statement of Dr. Abdul Rehman (P.W.15) who was an independent witness by all standard, and evidence of recovery of stolen motorbike of the deceased as further corroborated by the dying declaration of the deceased, and both the accused being liable for the murder of Muhammad Sarwar, Faisal Habib appellant was rightly convicted and his acquitted co-accused should now be convicted. 21. As regard the first contention of the learned counsel for Faisal Habib appellant, we do not agree with him that the testimony of the eye-witnesses is to be discarded on account of their relationship with the deceased. This was not a legal infirmity in this case because the eye-witnesses had not previous animosity, spite or illwill against the appellant and his acquitted co-accused, rather, the prosecution case was that the deceased and the accused were on friendly terms and for that reason they went out together for an excursion. So the relationship of the witnesses with the deceased by itself does not nullify their testimony. However, we are inclined to agree with the second limb of his argument that both the eye-witnesses were chance witnesses and their deposition did not inspire confidence on that account. They claimed that on the day of occurrence they had gone to Chak No,19/N.B. For the purchase of a fruit garden and when they were returning home in Sargodha Town on the bank of Lower Jhelum Canal, they happened to see the occurrence resulting in a fatal injury to Muhammad Sarwar (deceased) at the hands of Faisal Habib appellant on his refusal to hand over the motor-bike to him and Zulfiqar Habib acquitted accused snatching away the key from the injured, drove it away alongwith his brother toward Bhalwal. When cross- examined on the purpose of their visit to Chak No,19/N.B. They stood exposed. Muhammad Ramzan complainant (P.W.12), who had lodged the report, when confronted with the contents of the F.I.R, had to cut a sorry figure, particularly on the factum of his accompanying his injured brother in the official jeep of Dr. Abdul Rehman (P.W.15) who had transported him from the spot to D.H.Q. Hospital, Sargodha and had got him admitted. The record of the hospital indicated that Muhammad Sarwar injured was brought to the hospital and got admitted by Dr. Abdul Rehman (P.W.15) and not by Muhammad Ramzan complainant (P.W.12) which he falsely claimed. Had he been present at the time of occurrence alongwith Muhammad Yasin (P.W.13), they would have made some effort to save the victim, so nearly related, from the assailants, and in that process they might have even suffered some injury but they did not appear to have displayed any such conduct. Similarly, had the complainant accompanied the injured to the hospital in the official jeep of Dr. Abdul Rehman (P.W.15), his name would have found mention in the medico-legal report and not that of Dr. Abdul Rehman (P.W.15) who was stranger and a bypasser and had brought the injured to the hospital out
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of human sympathy. We, therefore, hold that neither of the two eye-witnesses had seen the occurrence and discard their testimony as such. 22. So far as the second contention of the learned counsel is concerned, we are of the view that the dying declaration of Muhammad Sarwar (deceased) was neither fabricated nor untrue. It may be noted that the dying declaration of the deceased was oral as well as in writing. Dr. Abdul Rehman (P.W.15) had deposed about his oral dying declaration, while the written one (Exh.P.CC.) was proved by Si. Matiullah (P.W.14). Learned counsel for the appellant had tried to whittle down the testimony of Dr. Abdul Rehman (P.W.15) by contending that in the first instance he was not cited as one of the prosecution witnesses and when his name was included in the calendar of the witnesses on the request of the prosecution, he had to depose under the influence of certain high-placed political personalities of the District due to the political affiliations of the appellant's father with the opposite political party and for that reason he went on wavering throughout his statement. We have already given the gist of his statement in paragraph No, 16 ibid and without repeating the same in extenso, consider it suffice to say that he, with reference to the statement of the injured, whom he was transporting in his official jeep from the spot of D.H.Q Hospital, Sargodha, deposed that…
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