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Petitioner: MUSHTAQ HUSSAIN and anothers VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Rehmat Hussain Jaffery, Shakirullah Jan, Tariq Pervez Title: MUSHTAQ HUSSAIN and anothers vs THE STATE Case No.: Criminal Appeal No, 285 of 2009 Criminal Petition No, 286 of 2009 Date of Judgment:2010-03-09 Reported As: 2011 SCMR 45 Result: Order accordingly
JUDGMENT
JUDGMENT TARIQ PERVEZ KHAN, J.---When Criminal Petition No,286 of 2009 was heard by this Court on 16-5- 2009, leave to appeal was granted therein to reconsider the entire evidence, therefore this appeal. 2. Mushtaq Hussain and Muhammad Nazir are two appellants who were tried by learned Additional Session Judge, Rawalpindi, as they were charged for causing fire-arms injuries to Ashfaq Hussain and Altaf Hussain, therefore at the end of trial they were both convicted and sentenced as under:-- Mushtaq Hussain:---convicted under section 324, P.P.C. And sentenced to ten years' rigorous imprisonment and further convicted under sections 337-F(iii) and 337-F(iv), P.P.C. And sentenced to pay Rs,25,000 as Daman to injured Ashfaq Hussain, failing which to undergo further six months' simple imprisonment. Muhammad Nazir.--- convicted under section 324, P.P.C. And sentenced ten years' rigorous imprisonment and convicted under sections 334/337-T, P.P.C. And sentenced to pay 1/10th of Diyat on each count for lose of fingers of Altaf Hussain; in addition to pay Rs,60,000 Arsh to Altaf Hussain injured, failing which to undergo further six months simple imprisonment. 3. Not satisfied from the judgment of the trial Judge dated 31-10-2003, they preferred appeal before Lahore High Court Bench at Rawalpindi which stands decided on 30-4-2009 wherein conviction and sentences of two appellants were maintained. 4. Written application as Exh.P.A. Was produced before the Incharge of Police Post Chak Bali Khan, Police Station Chountra, Rawalpindi duly signed by Altaf Hussain (P.W.1) wherein he narrated the occurrence by stating that, "he got contract of loading and unloading of Gas cylinders from POL Gas Company as against accused party, which has caused. Them annoyance and that their relations became strained which resulted into numerous quarrels between them".
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5. It was stated that on the day of occurrence i,e, on 9-3-2003 at about 5/5.15 p.m. When Altaf Hussain complainant along with his brother Ashfaq Hussain and one Shakil Ahmad were present outside the gate of POL Gas Company, then Mushtaq Hussain and Mudassar armed with Kalashnikov, Wahid armed with .8-MM rifle, Muhammad Irshad armed with .30-bore pistol, Muhammad Khan armed with .7-MM rifle, Baber Nadim and Shah Nawaz both armed with .30-bore pistols while Muhammad Nazir armed with Kalashnikov came to the gate of said Company. No sooner they reached, Mushtaq Hussain is alleged to have made fire shot with Kalashnikov hitting Ashfaq Hussain on the chest while the second fire shot landed at his right leg. Muhamamd Nazir also armed with Kalashnikov is alleged to have. Fired at Altaf Hussain complainant hitting him on the two fingers of the right hand. He has thereafter attributed role of effective firing to other co- accused namely: Mudassar, Muhammad Khan, Babir Nadim and Shah Nawaz. It was further alleged that during indiscriminate firing of the accused, Mudassar their co-accused was hit and died. In all eight accused persons were charged in this case. Out of which Mudassar died on spot on the same day for which a separate case was registered against the complainant party of this case. 6. Except for the two appellants and excluding Wahid co-accused who did not surrender, rest of the accused were acquitted by the trial Court by holding that prosecution could not prove their presence on the scene of crime. 7. To prove the charge against the two appellants prosecution examined in all six witnesses but the relevant witnesses are Altaf Hussain P.W.1 who is complainant of this case and was injured and Ashfaq Hussain his brother who appeared as P.W.3. Shakil Ahmed eye witness named in the F.I.R. Was not produced. 8. Undisputedly both the eye-witnesses have charged the present appellants for causing them fire-arm injuries, but they have attributed similar role to other acquitted co-accused. Presence of these two witnesses cannot be doubted and has not be doubted by the two Courts below and rightly so because they carry stamp of fire-arms injuries on their person. 9. Learned counsel for appellants has argued that the testimony of the two eye-witnesses is not in conformity with the medical evidence as to the direction of injury received, because these were not possible if were caused in the manner as given by the eye-witnesses. Next it was argued that one of the injuries on the person of Ashfaq Hussain was having burning marks which would not be possible from the distance of 35 to 40 feet. Contention is that if Ashfaq Hussain was victim of firing made by Mushtaq Hussain the appellant, all injuries on his person should have similar effect which is not the case therefore ocular account shall be excluded. ' It is also argued that effective role of firing is attributed to four acquitted co-accused but the testimony of the two injured eye-witnesses has been disbelieved against them and for relying on their ocular account viz: two appellants, it was required that there should have been sought independent physical corroboration in the shape of recovery of empties etc. Lastly it was argued that it is a case of two versions i,e,, if on one hand the two eye-witnesses of this case have sustained fire-arms injuries but on the other hand a co-accused of the two appellants namely Mudassar brother of Mushtaq Hussain appellant has lost his life. It is argued that P.W. Ashfaq Hussain and other were charged for the killing of Mudassar and that Ashfaq Hussain was awarded death sentence by the learned trial Judge but in appeal was acquitted therefore applying the rule of consistency between the two parties where both have suffered losses, benefit of doubt was equally available to the two appellants which has not been given extended by two Courts below. 10. Learned Deputy Prosecutor General has argued that the learned trial Judge has held that no doubt that there is cross-version and no doubt neither of the parties established as to which party was aggressor and which was agreed upon but it will be a case of free fight making every accused responsible for his individual act. His submission is that the two injured eye-witnesses have
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supported the charge against the appellants therefore, they have been rightly convicted and sentenced. He has also argued that mere existence of cross-cases cannot help the appellants because the defence has not specifically set up the.Plea of self defence. 11. For the preceding paragraphs have agreed with the learned trial Judge as well as with the learned Judge of the High Court but to the extent to accept the presence of two eye-witnesses namely Altaf Hussain and Ashfaq Hussain. The reason for our agreement is that they were both having fire-arms injuries on their persons which were located on different parts of their bodies, thus excluding the possibility of being self inflicted. 12. There are certain admitted facts not only between the two parties before us i,e, accused and complainant party but similarly admitted by the learned trial Judge as well as learned appellate Court. These facts are that on the same place and on the same day and same time if on one hand two P. Ws. Have sustained firearms injury but one of the co-accused of the present appellants was killed with firearms for which there is sufficient material on record. It has been admitted by complainant in the .I.R. Exh.PA that Mudassar co-accused was hit with the firing of his companions (who later on died). Similarly in their cross-examination they have admitted the killing of Mudassar but at the hands of his own companions. Two Courts below have also accepted that there is cross version against the complainant party of this case for killing of Mudassar co-accused of the present appellants. 13. We first referred to the statement of Altaf Hussain (P.W.1) and then to the statement of Ashfaq Hussain, followed by reference that will be made to the statement of Masood Ahmad, Sub- Inspector P.W.6 who is the Investigating Officer not only of this case but also of the murder case of Mudassar (co-accused of the appellants). 14. Having said in his F.I.R. That Mudassar deceased was hit with the fire shot of his own companion, Altaf has admitted in his cross-examination "I cannot tell that Mudassar deceased was hit by whose fire of his companion". He further admits regarding the case F.I.R. No,41 of even date under the murder charge registered on the report of Muhammad Khan acquitted accused. He further admits that his application Exh.PA was taken as a counter version by the Police. 15. Referring to the statement of Ashfaq Hussain, he admitted in his examination-in-chief the killing of Mudassar but with the firing of his own companion, he admitted that he is an accused in murder case of Mudassar, pending before the same learned trial Judge. He was suggested but denied that on the day of occurrence Mudassar and Altaf Hussain has scuffled, Altaf Hussain was armed with Kalashnikov which fell down during the scuffle which was picked up by the Mudassar deceased (co-accused) who used the same for causing injuries to Altaf Hussain and to him and that he being armed with .30-bore pistol made firing as a result of his firing Mudassar was killed. He was further suggested that fight took place between the deceased of the cross-case and him as well as Altaf Hussain P.W. 16. Masood Ahmad, Sub-Inspector P.W.6 admitted recording of case F.I.R. No,41 for the murdering of Mudassar dead accused. He further admitted that eye-witnesses of one case are accused in the other and so on. He also admitted to have conducted investigation in the cross-case and that during his investigation complainant party of this case never took up the plea of self-defence. ' We have made few references to the statements of two eyewitnesses and I.O. To communicate that there is admission of existence of cross-case by the prosecution side. 17. Not because what we have observed in above paragraphs, even the trial Judge could not get out of the factual position when in para-2 of its judgment, he make reference that on cross version to Altaf Hussain case, F.I.R. No,41 was lodged for murder charge by Muhammad Khan acquitted co- accused against the two eye-witnesses and others. 18. Even in the body of judgment the defence version and the version of the cross case is repeatedly recorded with reference to the argument of the learned defence counsel. For us
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paragraph 23 of the learned trial Judge is very important for concluding that it is a case of two versions, paragraph 23 is reproduced as below:-- "23. Both the parties have admitted the time, date and place of occurrence. The presence of P. Ws. Is also admitted as they got injuries in the occurrence. Previous enmity between the parties regarding criminal litigation pending in different courts is admitted. The Tussel between the Altaf Hussain complainant and Muhammad Khan accused regarding obtaining of tenders of loading and un-loading of cylinders of POL Gas Company Pindori is also admitted as both had deposited the tenders with the said Company and Altaf Hussain complainant succeeded in getting the same. Both the parties suppressed the real facts regarding injuries received by Mudassar Hussain deceased of the accused party and the injuries by the complainant Altaf Hussain and his brother Ashfaq Hussain as both the parties claimed that their opponents received injuries by their own companions." 19. However notwithstanding as observed by the trial Judge in paragraph 23, the learned trial Judge vide his judgment in paragraph 26 admitted that I.O. Has found acquitted accused of the present appellants to be found innocent during investigation. In paragraph 27 of the judgment of the trial Judge we find as under:- "27. In view of the above mentioned circumstances, I have come to the conclusion that both the parties suppressed the real facts and did not come to the court with truthful version and in such eventuality where versions of the parties are not fully truthful and are not helpful for the purpose of just adjudication." 20. However having held that both the parties are suppressing real facts and have not come out with truth, learned trial Judge proceeded to hold that it was a case of free fight, which in our opinion is a wrong conclusion because it was not a case of fight where two parties have confronted each other and started quarrel, scuffle and then grappling and then attacking each other. 21. Keeping in view, the evidence of the parties even Hon'ble Judges of the High Court in Chambers were compelled to record in paragraph 7 of their judgment: "At the same time, we note that both the parties i,e, Altaf Hussain and others on one side and Muhammad Khan, etc, on the other were narrating the occurrence in different manners, for obvious reasons to twist the facts in order to save themselves and to implicate their opponents." 22. The finding of the learned High Court, which appears to us is not correct where Court is of the opinion that both parties are not bringing truth on record then two versions are to be put in juxta position and Court of its own, shall conclude as to which version is more probable. 23. In this case both the parties are not residents of the scene of crime. The presence of complainant party is explained by stating that they were having some contract of loading and unloading of cylinders with POL Gas Company. It has also come in evidence that the houses of accused parties are situated nearby within a distance of less than 1 KM and that between the residence of the accused and POL Company there is no 'abadi', therefore coming to Hotel which is the scene of crime for taking tea, no exception can be taken about the presence of either party. 24. It has come in the statements of two eyewitnesses that the parties have strained relations from before for which they have quarrelled and on one occasion cross - cases were registered against each other. In view of the above that there are strained relations between the parties and they get together on one spot, both residing away from the spot, possibility cannot be excluded that having seen each other they both attacked each other and in the attack two prosecution witnesses of this case sustained fire - arm injuries and one man from the either - side was killed will be a case where no evidence can be led to show that which party started aggression. 25. To rebut the argument that the defence did not plead right of self defence, we will refer to very recent judgment by this Court reported as Ghulam Farid v. The State, (2009 SCM R 929) where it
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was ruled that an accused if not raised the plea of self - defence during the trial either in his statement under section 342, Cr.P.C, or at the time of cross - examination of prosecution witnesses - Court, however, could infer the same from the evidence led during trial if it was tenable. 26. Since benefit of cross - version was given to the accused of cross case , same will be extendable to the present two appellants particularly when the two eye - witnesses were injured but have charged the acquitted co - accused as well for causing injuries to them. The net result of this detailed discussion is that since both the Courts below have held that there is a cross - case and no definite finding can be given about the aggression made by the present appellants, they were entitled to benefit of doubt. ' We therefore allow this appeal, convictions and sentences are set aside and they arc acquitted of the charges. They shall be released forthwith, if not required in any other Lase. Appeal allowed. (Sd.) Tariq Pervez Khan, J. ' MIAN SHAKIRULLAH JAN, J.---I have gone .Through the proposed judgments of my learned brothers with a dissenting view. However, 1 will give my own reasons for arriving at a conclusion. The necessary facts have already been given in the two proposed judgments need not to be reiterated except, where reference is necessary. 2. This appeal has been filed with the leave of the Court, concluding paras 3 and 4 of the leave granting order read as under:- "3 Learned counsel stated that it was the case of acquittal in view of the evidence available on record but the High Court without taking into consideration total evidence has maintained the sentence/conviction awarded to them by the trial Court. 4. Contentions raised, require consideration. Leave to appeal is granted." 3. The tenor of the leave granting order is for re-appraisal of the evidence. Since it is a criminal case, being an appeal for reassessment of the evidence, for arriving at our conclusion, the entire evidence will have to be analyzed and the findings of facts recorded by the two-Courts below would be of no consideration or of less consideration with some weight to be given to that of the trial Court, regarding the credibility of witness as having the benefit by observing his (witness) demeanor, and when all the witnesses had been examined by the same Presiding Officer/Judge, who passed the order of acquittal or conviction in the case. In the civil eases and particularly at the level of second appeal such a consideration, the arrival of the Courts below at a concurrent finding on question of fact is relevant, but that is because of the law envisages so unlike in criminal appeal where the entire evidence is to be assessed. 4. It is a unique case of its kind where the Police, after the receipt of a written statement from the complainant, instead of registering a separate and independent F,I.R. On the basis of the above written statement made it a part of a case registered. Vide F.I.R. No,41 of 2001 under. Sections 302/148/149, P.P.C. -claiming casualty by the rival party at the hands of the complainant party, may be, considering both the counter versions to be the result of one occurrence and thus entered its contents in the diaries of the afore referred registered case. Such a practice is unprecedented and never experienced earlier and still to come across as the general principle is that whenever counter versions are received by the Police separate F.I.Rs, are chalked out. The Police, while treating the written statement as part of the earlier registered case by the opposite side and not registering an independent case, seems to be oblivion of the fact that the statement if so taken in a case, after the registration of a case, would be under section 161, Cr.P.C. And which, not to speak of a written statement, even prohibit the signing of such a statement by the maker under section 162, Cr.P.C. But here the receipt of a written statement is in violation of sections 161 and 162, Cr.P.C. Which also seems to be in the handwriting of some Police official by making comparison of the written
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statement and the signature on such a statement. A proper course was to register a separate case on the basis of such a written statement containing all the necessary ingredients of the F.I.R. i,e,, the time of report, the time of occurrence, distance from the Police Station and being read over to the maker and then getting his thumb impression or signature in token of its correctness and at the end the Karwai Police with regard to necessary steps taken by the Investigating Officer immediately after registration of the case and then signature of the scribe. In the present case the written statement which has been made the basis for further investigation in the case on the line as narrated by the complainant party is bereft of all the aforesaid characteristics and even the Police Officer to whom such a written statement has been provided has not endorsed it even with the timing of its receipt and not signed by him and not made further necessary inquiries, the essentials of an F.I.R. This written statement neither fulfils the conditions of statement under section 161, Cr.P.C. Nor of F.I.R. The conduct of the Investigating Officer strengthens the stand of the accused as they have taken and then asserted in their statement recorded under section 342, Cr.P.C. That the written statement has not been made on the same day rather it was on the next day so that the complainant party may have sufficient time for consultation, deliberation, concoction and fabrication of the case according to their wishes and desires and not based on actual facts. The purpose of the F.I.R. Is to set the criminal law in motion and to obtain the first hand, spontaneous information of occurrence in order to exclude the possibility of fabrication of story or consultation or deliberation or the complaint has had time to devise or contrive anything to his advantage and to the disadvantage of others and to safeguard the accused of such like happenings/occurrences in the F.I.R., as the spontaneity is the guarantee of truth to a greater extent. In this respect reference can be made to the case of Asal Muhammad and others v The State (PLD 1994 Peshawar 214) [authored by one as a Judge of the Peshawar High Court], with elaborate discussion on the subject i,e,, F.I.R. And statement recorded under section 161, Cr.P.C. Which may be helpful while explaining the position in the present case. The relevant para therefrom is reproduced herein below:-- "11. The information given to the police or the statement recorded by the police is of two types, (1) whether investigation has not commenced and for the first time information with regard to a cognizable offence is given and (2) the statement is recorded by the police after the commencement of the investigation i,e, during the course of investigation. As regards the second kind of statement which is given during the investigation, that is inadmissible under the specific provisions of section 162, Cr.P.C. And its purpose only to contradict its maker with such statement at the time of his deposition in the Court while with regard to the first information report, there is no specific provision in respect of its admissibility or otherwise like the one provided under section 162, Cr.P.C. And for statement recorded during investigation under section 161, Cr.P.C. And it will have to be seen in the light of the various provisions of the Qanun-e-Shahadat, 1984, if we look at section 154, Cr.P.C. Which envisages that the information given of a cognizable offence to the incharge of a police station, the substance thereof shall be entered by him in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf and according to Chapter 22.45 i,e, Chapter 22, para 45 of the Police Rules, 1934 First Information Report Register shall be maintained in accordance with rule prescribed and according to Chapter 24.5 of Rules, ibid, the form of the F.I.R. And its various details have been given therein. The consists of two ingredients (i) The document itself; (ii) contents of this document which further include (a) the statement/ narration of the maker of F.I.R. Entered in the document; (b) the various entries made by the scribe at the time of its scribing. In addition, as earlier stated the purpose of the F.I.R. Is to set the criminal law in motion and to obtain the first hand, to obtain spontaneous information of occurrence in order to exclude the possibility of fabrication of story or consultation or deliberation or the complaint has had time to devise or contrive anything to his advantage and to the disadvantage of others and to safeguard the accused of such-like happenings/occurrences in the F.I.R., as the
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spontaneity is the guarantee of truth to a greater extent and immediate utterance is the manifestation of psychological reaction and when the witness deposes in the Court against the accused, he may be given the advantage of corroborating him (maker of F.I.R.) under Article 153 and contradicting him under Article 140 or impeaching his credit under Article 151, Qanun-e- Shahadat in respect of his earlier narration in the F.I.R. The document itself (ingredient (a) mentioned above) is not proved unless the maker deposes in the Court (i,e, his statement is recorded in the Court as evidence) except under Article 46 of Qanun-e-Shahadat which is admissible as dying declaration as commonly known, as according to Article 71 of Qanun-e- Shahadat the evidence be direct. Now the status/position of the document of F.I.R. Is to be seen from evidence point of view. According to Article 85(4) of Qanun-e-Shahadat the documents required to be maintained by a public servant under any law would be called public documents and thus the F.I.R. Is said to be a public document according to the definition of this provision of law being the outcome of an act of public officer…
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