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Petitioner: MUHMMAD IMRAN VS Respondent: THE STATE
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Iftikhar Hussain Butt Title: MUHMMAD IMRAN vs THE STATE Case No.: Criminal Appeal No,49 and Reference No,60 of 2006 Date of Judgment:2007-02-08 Reported As: 2008 YLR 508 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' IFTIKHAR HUSSAIN BUTT, J.--- The appellants were convicted in a case F.I.R. No,42/2006, dated 4-4- 2006, police station Hajira, Tehsil Hajira District Poonch, by learned Additional District Criminal Court, Hajira vide its judgment, dated 21-7-2006. Muhammad Imran was sentenced to death under section 302, A.P.C. And one year R.I. Under section . 13/20/65 Arms Act. Murtaza Malik was sentenced to 7 years with a fine of rupees five thousand under section 324, A.P.C. Or in default of payment thereof to suffer one month's S.I. And under section 337(3)-F two years and to pay 'Daman' rupees ten thousand which has \to be paid to injured Farooq and in default of . Payment of 'Daman' to be detained in judicial lockup along with one year', R.I. Under section 13/ 20/65 Arms Act. Shoaib son of Ashraf was sentenced to 7 years with a fine of rupees five thousand under section 324, A.P.C. Or in default of payment thereto to suffer one month's S.I. And two years under section 337(3)-F and to pay rupees ten thousand as 'Daman', which has to be paid to injured Ayyaz and in default of payment of 'Daman' to be detained in judicial lockup along with one year's R.I. Under section 13/20/65 Arms Act. It was also ordered that all the substantial sentences will run one after another. Accused Shoaib Abasi son of Bashir was acquitted of the charge. ' Facts of the prosecution case, as stated, are that on 4-4-2006 Muhammad Khurshid (P.W.1) lodged report Exh.PA at Police Station, Hajira alleging therein that on 3-4-2006 an evening before the occurrence his brother Abdul Ghafoor, who is a shopkeeper in village Ghamir, was proceeding to receive money from Muhammad Akram. A little bit away from his shop at a desolated place, he found Muhammad Imran kissing a. Young girl. Abdul Ghafoor forbade Muhammad Imran not to do so, whereupon an altercation took place between them. On hearing hue and cry, Muhammad Shakeel son of Muhammad Sharif reached at the spot and hushed up the matter. He further
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contended that on 4-4-2006, his brother was present in his shop when Muhammad Imran armed with a .30 bore pistol and dagger arrived at his shop and threatened him to take revenge of his insult and went home. Thereafter Muhammad Imran sent Murtaza Malik towards Abdul Ghafoor for holding a "Punchayat". On this information, at about 2-30 p.m. He along with his brother Abdul Ghafoor, Muhammad Ayyaz son of Faqir Muhammad, Farooq son of Ghulam Muhammad and Abdul Hameed son of Said Muhammad proceeded towards Muhammad Imran. When they reached near Imran, they saw Imran accompanied by Muhammad Shoaib son of Muhammad Ashraf, Murtaza, Mustafa, Shoaib Abasi son of Muhammad Bashir and Adnan son of Muhammad Ayub. As soon as Abdul Ghafoor reached near Imran, he fired a shot with .30 bore pistol, which hit him upon the right side of his abdomen who fell down. Murtaza Malik fired a shot with .12 bore. Gun which hit Muhammad Farooq. Shoaib injured Muhammad Ayyaz by firing a shot of pistol. Adnan also injured the complainant by firing shot of pistol. Abdul Ghafoor succumbed to the injuries on the way to hospital. The occurrence was witnessed by. Abdul Hameed son of Said Muhammad, Sarfraz son of Ghulam Muhammad and Abdul Ghaffar son of Abdul Ghafoor. He further stated that the other accused persons have also been firing shots. ' On this report a case under sections 302, 324, 227, 147, 148 and 149, A.P.C. Was registered by Naseer Ahmad Khan S.-I. Police (P.W.19). After registration of the case, Naseer Ahmad Khan S.-I. Police went at the spot and prepared inquest report Exh.PV. He also sent the dead body for post-mortem. On the same day, he prepared injury sheets of Muhammad Farooq Exh.P.H, Muhammad Ayyaz Exh. PG, Muhammad Khurshid Exh. PI and also got them medically examined. On the same day, he prepared site plan Exh.P.W. And took into possession bloodstained earth and grass vide recovery memo. Exh. PP in the presence of Bashir Ahmad Zia (P.W.11) and Subedar Major (R) Muhammad Maqsood (P.W.12). He also took into possession two empties from the spot vide recovery memo. Exh.PQ attested by the above mentioned P.Ws. Dr. Mumtaz Ahmad, Civil Medical Officer, (P.W.13) handed over the blood-stained shirt, trousers, string and sweater which were taken into possession by Muhammad Yaqoob Head Constable Police (P.W.15) vide recovery memo. Exh.PD in presence of Babar Iqbal (P.W.7) and Muhammad Pervaiz Iqbal (P.W.8). ' On 7-4-2006, Muhammad Imran accused led to the recovery of 30 bore Major (R) Muhammad Maqsood (P.W.12). On the same day, he further took into possession the bloodstained trousers along with string and a shirt of Muhammad Farooq injured P.W. Vide recovery memo. Exh.PS and a trousers of Muhammad Ayyaz injured P.W. Vide recovery memo: Exh.PT attested by the aforementioned witnesses. On 2-5-2006, said Naseer Ahmad Khan S.-I. Police obtained the report of Chemical Examiner Exh.PY. He also obtained the report of Forensic Science Laboratory- Exh.PX on 6-5-2006 and the report of Serologist (not exhibited) dated 19-7-2006. ' The autopsy of the dead body of Abdul Ghafoor was conducted by Dr. Mumtaz Ahmad (P.W.13), Civil Medical Officer Rural Health Centre Hajira, on 4-4-2006. He found the following injuries on the dead body:--- (1) Wound of entry at the Rt. Lumber 'region just below the Rt. Costal margin and wound of (2) Exit on the Lt. Side of the Lt. Buttock just below about 3 inch on posterior aspect of Lt. Hip joint. ' The appellants along with other accused-persons were arrested and after usual investigation, the appellants were sent to face trial before Additional District Criminal Court Hajira whereas Muhammad Shoaib son of Muhammad Bashir, Muhammad Adnan son of Muhammad Ayub and Muhammad Murtaza were given the benefit of section 169 and their names were placed in column No,2 of the challan. Later on accused Muhammatl Shoaib and Muhammad Adnan were also summoned to face the trial but Muhammad Adnan absconded and was proceeded under section 512, Cr.P.C. Vide order dated 27-6-2006. The charge against the accused-appellants was framed on 22-6-2006 whereas against Shoaib Abasi son of Bashir was framed on 3-7-2006. All the accused persons denied the guilt and claimed the trial.
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' To prove its case, the prosecution produced Muhammad Khurshid (P.W.l), Abdul Hameed (P.W.2), Abdul Ghaffar (P.W.3), Muhammad Ayyaz (P.W.4), Muhammad Farooq (P.W.5), Sarfraz Mahmood (P.W.6), Babar Iqbal (P.W.7), Muhammad Pervaiz Iqbal (P.W.8), Muhammad Aurangzeb (P.W.9), Abdul Ghanni (P.W.10), Bashir Ahmad Zia (P.W.Ll), Subedar Major (R) Muhammad Maqsood (P.W.12), Dr. Mumtaz Ahmad (P.W.13), Sajjad Anjuhi Patwari (P.W.14), Muhammad Yaqoob Head Constable Police (P.W.15), Aftab Ahmad Head Constable Police (P. W. 16), Muhammad Pervaiz Constable Police No,280 (P.W.17), Sardar Muhammad Musa Khan D.S.P. (P.W.18), and Naseer Ahmad Khan S.-I. Police (P.W.19). ' The salient feature and important circumstances of the prosecution evidence were put to the accused-persons for their explanation, as required by section 342, Cr.P.C. The accused persons once again denied die prosecution evidence and claimed to be innocent. ' Muhammad Sarfraz (D.W.l), Baqir Khan (D.W.2), Muhammad Farooq (D.W.3), Matloob Ahmad (D.W.4), Muhammad Shakeel son of Muhammad Akbar (D. W.5), Muhammad Shakeel son of Muhammad Shaffi (D.W.6), Muhammad Atique (D.W.7), Muhammad Raheem (D.W.8) and Muhammad Waqas (D.W.9) were produced in defence. ' After conclusion of the trial, the Court below awarded above mentioned sentences to the appellants whereas Muhammad .Shoaib son of Muhammad Bashir was acquitted of the charge. Feeling aggrieved and dissatisfied, convict- appellants Muhammad Imran,. Muhammad Shoaib son of Muhammad Ashraf and Muhammad Murtaza lodged the aforementioned appeal for setting aside the conviction and sentence whereas a reference has also been made by the trial Court for the confirmation of death sentence, as required by section 338-D, the Azad Penal Code (Amendment) Act, 1995. ' Sardar Muhammad Rasham Khan, the learned counsel for the convict- appellants argued that the trial Court has committed illegality while passing an order of conviction and sentence against the accused-persons because the prosecution has miserably failed to establish a case against them beyond any reasonable doubt. The learned counsel further contended that the investigating agency extended the benefit of section 169, Cr.P.C. In favour of Muhammad Adnan son of Muhammad Ayub, Muhammad Shoaib son of Bashir and Muhammad Mustafa son of Muhammad Ismail but they were later on summoned by the trial Court in an illegal fashion. The learned counsel also submitted that according to the prosecution evidence, inhabitants of the village reached at the spot during the occurrence but the prosecution did not produce any independent witness and all the prosecution witnesses are closely related to the complainant; therefore, their evidence cannot be taken into consideration. The learned counsel pointed out that the prosecution witnesses have alleged that Shoaib Abasi and Mustafa Malik have been making aerial firing, although matter of fact is that the accused- persons were not present at the spot during the occurrence. The learned counsel maintained that due to inefficiency of the counsel for the accused party, no specific defence could be taken in the trial Court but the defence witnesses have categorically stated that the complainant party launched a murderous attack upon the accused party, who were armed with rifle and hatchets but the trial Court did not pay any attention to this aspect of the case. The learned counsel agitated that according to the prosecution witnesses all of the accused-persons have been firihg shots but according to Dr. Mumtaz Ahmad (P.W.13) only two persons sustained fire-arm injuries whereas other received injuries by a blunt weapon; therefore, in case of contradiction between the ocular version and the medical evidence, it cannot be relied upon. The learned counsel pressed into service the submission that according to Abdul Ghaffar (P.W.3) all of six accused have been firing shots but only two empties were taken into possession from the spot which casts serious doubt upon the prosecution story. The learned counsel argued with vehemence that in the'light of defence evidence Imran accused also sustained injuries during the occurrence but the prosecution suppressed ' the same; therefore, the prosecution version is
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suspicious and doubtful. The learned counsel also contended that according to prosecution witnesses, accused Shoaib Abasi and Mustafa Malik have been firing in the air but the trial Court acquitted them of the charge and thev impugned judgment has not been challenged by the prosecution to their extent, which proves that the prosecution version is not worthy of any credence. The learned counsel submitted that .The recovery witnesses are also interested and closely related to the complainant party; therefore, corroboratory evidence also does not provide any support to the prosecution version. The learned counsel finally argued that motive has not been proved; therefore, the trial Court fell in grave error while awarding death sentence to Muhammad Imran accused and other sentences to the remaining accused- appellants. In support of the arguments, the learned counsel cited the following authorities:- (1) 2003 YLR 1327, (2) 2005 SCR 1 and (3) 2006 SCR 58. ' Controverting the arguments raised by the learned counsel for the convict- appellants, Khalid Yusuf, the learned Assistant Advocate General, appearing on behalf of the State, submitted that the motive of the occurrence has not only been proved by the prosecution but it is admitted on the part of defence. The learned State Counsel argued that the prosecution story stands proved by the evidence of six eyewitnesses who have unanimously supported the prosecution version. The learned counsel for the State further maintained that the careful examination of the cross- examination and suggestions put to the prosecution witnesses show that the time of occurrence, place of occurrence, the mode of occurrence, the presence of the accused party and the complainant party at the place of occurrence are admitted on the part of defence. The learned State Counsel pointed out that the occurrence has also been abundantly proved during the cross- examination. The learned State Counsel pressed into service the submission that although the prosecution witnesses are closely related to the complainant but they do not nurse any grudge against the accused party; therefore, their evidence cannot be brushed aside. The learned State counsel further maintained that the prosecution witnesses have been found ' Adil' during purgation and their evidence is clear and consistent; therefore, the impugned judgment does not suffer from any nonreading or misreading' of the evidence, which may be maintained. In support of the contention, the learned State counsel referred to me the following case-law: (1) PLJ 1975 Cr. Cases 230, (2) PLD 1975 SC 160 and (3) PLD 1976 Lahore 1025. ' I have given my due consideration to the arguments addressed at Bar, perused the record with care and case-law cited by the leaned counsel for, the parties. It is by now settled proposition of law that a witness cannot be described as an interested witness and his evidence cannot be discarded on account of relationship with the party. An interested witness is one who has a motive for falsely implicating an accused-person. In the instant case although the prosecution witnesses are interested and closely related with the deceased but they do not nurse any grudge or rancor against the accused party; therefore, their evidence cannot be discarded on this score only. It is basic principle of criminal jurisprudence that the credibility of a witness does not depend upon relationship, but the same should flow from his deposition. The nature and quality of the statement of a witness should evoke confidence and trust and if after careful perusal of the evidence, the Court reaches the conclusion that the evidence of an eye-witness is reliable and without any bias towards either party, it is by itself sufficient to pass an order of conviction and sentence without any corroboration. In the instant case, the prosecution witnesses have passed the test of close and severe scrutiny. On examination of the evidence of eyewitnesses, it is found that their evidence is straightforward and implicitly reliable. The convict-appellants 1 have been clearly nominated in the F.I.R. And a specific role of firing upon the deceased and the eyewitnesses has been attributed to them. The eye-witnesses along with three injured witnesses are natural who were present at the place of occurrence in connection with "Punchayat" to resolve die altercation took placed at last evening. It also transpires from the style of cross-examination, the suggestions put to the eye-
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witnesses and the defence evidence that time, date, place of occurrence, the presence of accused party and the presence of eye-witnesses have been admitted by the defence. It has been further admitted on the part of defence that the deceased was done to death on account of firing a shot by a deadly weapon; therefore, only the manner of occurrence has been disputed by the defence. ' In this regard, Muhammad Khurshid (P.W.l), the complainant, categorically stated that an altercation took place between Abdul Ghafoor deceased and Muhammad Imran, accused who was found kissing a young girl in the past evening before the occurrence. Thereafter the complainant party was invited by the accused party to settle the grievance in a "Punchayat". When the complainant party reached at the place of "Punchayat", Muhammad Imran fired a shot of .30 bore pistol which hit Abdul Ghafoor deceased on right side of his abdomen who fell down whereas Muhammad Murtaza fired a shot with .12 bore gun which hit Farooq on the * right side of his back who also fell down. Muhammad Shoaib son of Muhammad Ashraf fired a shot of .30 bore pistol which hit Muhammad Ayyaz on upper side of his right knee. Muhammad Adnan (the absconding accused) fired a shot of .30 bore pistol, which hit the complainant on his left thigh. Muhammad Shoaib son of Muhammad Bashir and Muhammad Mustafa son of Muhammad Ismail have been firing in the air. The complainant also testified that he filed an F.I.R. Against the accused- persons. ' Abdul Hameed (P.W.2) deposed that when they reached the place of "Punchayat'', all the accused-persons were present there, who were armed with deadly weapons. As soon as Abdul Ghafoor deceased reached nearby, Muhammad Imran fired a shot of pistol, which hit him upon right side of his belly. When Farooq steped forward to pick him up, Muhammad Murtaza fired a shot of .12 bore gun, which hit him upon right side of his back. Adnan fired a shot of .30 bore pistol, which hit Khurshid on left side of his thigh whereas Muhammad Shoaib son. Of Muhammad Ashraf fired a shot with .30 bore pistol, which hit Ayyaz on the upper side of his right knee. Shoaib Abasi and Mustafa Malik have been firing shots in air a little bit away from the place of occurrence. ' Abdul Ghaffar (P.W.3) testified that as soon as the deceased along with eyewitnesses arrived at the place of "Punchayat", Muhammad Imran, accused, fired a shot of .30 bore pistol, which hit him upon right side of his abdomen. When Farooq went forward to help him, Murtaza Malik fired a shot of .12 bore gun, which hit him on his back. Muhammad Shoaib son of Muhammad Ashraf fired a shot of .30 bore pistol, which hit Ayyaz on upper side of his right knee. Meanwhile, Muhammad Khurshid, complainant, reached nearby Abdul Ghafoor deceased when Adnan fired a shot with .30 bore pistol, which hit him upon his left thigh. Mustafa Malik and Shoaib Abasi have been firing in air. ' Ayyaz Ahmad (P.W.4), Muhammad Farooq (P.W.5) and Sarfraz Mahmood (P.W.6) also fully supported the prosecution x story. During the cross- examination upon Ayyaz Ahmad P.W. The defence admitted that Muhammad Farooq (P.W.5) sustained injuries during the occurrence. It will be relevant to note here that the cross-examination about the participation in "Punchayat" is an exercise in futility because the presence of accused party and the convict-appellants is admitted on the part of defence. ' A detailed scrutiny of the evidence of eye-witnesses, amongst them Khurshid (P.W.l), Ayyaz Ahmad (P.W.4) and Muhammad Farooq (P.W.5) are injured witnesses and their presence at the place of occurrence is not disputed, shows that the evidence is unbiased, reliable, trustworthy and unimpeached, which cannot be rejected merely on the ground of relationship. My this view finds support from a case titled Raj Ali and others v. The State (1987 PCr.LJ. 1817), wherein at page 1822 of the report the following principle was enunciated:- ' "However, there is nothing whatever to discredit the version of the remaining two eye-witnesses, viz. Miran Shah and Rasool Shah. They both had sustained serious injuries which guarantee their presence at the time of occurrence. We do not see any force in the argument that evidence of these two Witnesses also could not be relied on as they were related to the deceased. A witness cannot be discredited merely because he was related to the deceased. The complainant side had
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no previous enmity with the accused. The witnesses had no reason to falsely implicate the accused or substitute them for the real assailants. Substitution of innocent person for the real culprit should be a rare phenomenon." ' The same view was affirmed in a case titled Iqbal alias Bhala and 2 others v. The State (1994 SCMR 1), wherein it was opined'at page 4 in the following manner:- ' "The fact that P.W.10 was an injured witness is a very important factor in appraising his testimony. Mere friendship or relationship does not make a witness an interested one and testimony of such a witness was otherwise seems to be a truthful witness cannot be rejected on such ground. An interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. 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 noting has been bought 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 SCMR 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 blood-stained articles recovered from the accused and supported by two other witnesses. In Allah Ditta and others v. The State (1970 SCMR 734) the testimony of four P.Ws. Out of which two had sustained injuries was accepted although they were related to the deceased because they were natural witnesses; injuries sustained by two P.Ws. Proved their presence and involvement in the occurrence and there was motive on the part of the accused to attack the deceased. Further their evidence found support from the medical evidence. Reference can also be made to Muhammad Akbar v. Muhammad Khan and others (PLD 1988 SC 274) and Sehruddin v. Allah Rakhia (1989 SCMR 1461 at 1465) where testimony of injured witness was accepted. In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown (1969 SCMR 777) it was observed that "to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not". Applying these principles to the present case the presence of P.W.10 cannot be doubted. He has suffered injuries. The medical evidence also supports his version. The recoveries also corroborate his statement as besides the arms and empties that were recovered, Towel, Chaddar, "Safa", Soap, bottle containing oil and a pair of shoes of Eisab Khan deceased, lend support to the testimony of prosecution witnesses including P.W.10. Nothing has been brought on record to show that he was personally involved in the enmity between the parties. Therefore, his testimony is sufficient to establish the crime against the appellants. Besides this P.W.5 had deposed about the incident relating to chopping off the head of Eisab Khan. There is no inconsistency or , material contradiction to discredit his testimony. The medical report corroborates his statement. " ' The same view was also affirmed in the following cases:- (1) Mahtab Khan v. The State (PLD 1979 SC AJK 23). (2) Muhammad Khalid v. The State (1992 SCR 249). (3) Niaz Ahmad alias Jaja v. The State (PLD 1983 SC AJK 211). (4) Abdul Rasheed and 3 others v. Abdul Ghaffar and 5 others (2001 PCr.LJ. 524). ' From the survey of above referred authorities, it becomes crystal clear that superior Courts in Pakistan and Azad Jammu and Kashmir have unanimously observed that the evidence of friends
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and close relations cannot be brushed aside and conviction can be based on the evidence of even interested witnesses without any corroboration provided the evidence is natural, straightforward and reliable. However, for the sake of abundant caution corroboration is sought to satisfy the conscious of the Court that no innocent person is being convicted. In the instant case, the evidence of injured eye-witnesses and other eye-witnesses derives ample support from sufficient corroboratory evidence. ' Dr. Mumtaz Ahmad (P.W.13) testified the post-mortem report Exh.PE, who found injuries caused by a fire-arm exactly on the same part of dead body of the deceased whereat stated by the eyewitnesses. According to him, the injuries mentioned in the post-mortem report are the cause of death of the deceased and probable time which elapsed between the injuries and death is 10 to 20 minutes. ' At this stage I want to resolve an objection raised by the learned counsel for…
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