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Petitioner: NAMATULLAH and anothers VS Respondent: THE STATE through Muhammad Hanif, and JUDGMENT
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Iftikhar Hussain Butt Title:NAMATULLAH and anothers vs THE STATE through Muhammad Hanif, and
JUDGMENT
Reported As: 2001 YLR 108 Result: Appeal dismissed Judgment JUDGMENT ' The abovementioned appeal and reference are outcome of a judgment of 'the District Criminal Court, Kotli, dated 13-8-1999, whereby Namat Ullah, accused/ appellant No,1 was convicted and sentenced to "Qisas" alongwith imprisonment for four years, four months and seven days as "Tazeer", whereas Fazal Dad, accused/ appellant No,2 was convicted and sentenced to fourteen years imprisonment. 2. The brief facts of the case are that on oral F.I.R. Was lodged at Police Station, Khuiratta by Muhammad Hafeez (P. W. 1), on 5-4-1995 at 7-00 p.m. Alleging that Zubair, deceased, was his nephew who was under his supervision whereas Namat Ullah and Fazal Dad, accused are also his close relatives and neighbours. Namat Ullah knew the fact that Zubair has developed illicit relations with his sister Mst. Kausar. Fazal Dad, uncle of Namat Ullah called a meeting of "Panchayat" in the house of Namat Ulfah where he and Zubair were also invited. The respectable of the "Panchayat" tried to satisfy Namat Ullah and his uncle Fazal Dad, but of no avail. Namat Ullah openly declared in the "Panchayat" that he will not allow Zubair to go alive but on the intervention of respectables of "Panchayat", dispute was resolved. The notables of the "Panchayat" remained seated in the house of Namat Ullah. On the advise of Rakhmat Ullah, Zubair went to his house. When Zubair reached on the back side of the house of Namat Ullah at about 6-00 p.m., Namat Ullah and Fazal Dad chased him and launched an attack upon him with an intention to do away with his life, Fazal Dad, accused, inflicted injuries on the person of Zubair with a stick whereas Namat Ullah caused injuries with a knife on the left side of his chest and head, Zubair fell down upon the earth and the blood starting oozing. The occurrence was stated to be witnessed by Muhammad Hanif, complainant,
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Muhammad Latif son of Faiz Tallab, Rekhmat Ullah son of Rehmat Ullah, Muhammad Akbar and respectables of the "Panchayat". 3. The motive of offence is stated that accused were under impression that the deceased had developed illicit relations with Mst. Kausar, sister of Namat Ullah, accused. 4. Muhammad Hanif (P.W.1) went and lodged an oral report at Police Station, Khuiratta which was recorded by Muhammad Nawaz Khan, A.S.I., Police (P.W.16), who registered the case Exh.P.A/II, under sections 307 and 34, A.P.C. Read with section 15 of Islamic Penal Laws (Enforcement) Act, 1974. On the same day Zubair succumbed to his injuries, therefore, the offences under sections 307, A.P.C. And 151, P.L. Were deleted and an offence under section 5, I.P.L. Was added. Muhammad Nawaz, A.S.I., went on the spot and prepared inquest report Exh.P.F. He also prepared an injury form of the deceased Exh.P.E. And took into possession the grass and blood-stained clay Exh.P.1 from the place of occurrence vide recovery memo. Exh.P.A.A. In presence of Haji Muhammad Ilyas (P.W.8) and Rehmat Ullah alias Rehmi (P.W.9). On that very night, Shabbir Ahmed S.I. (P.W.17), S.H.O., Police Station Khuiratta took over the investigation of the case from Muhammad Nawaz Khan, A.S.I. On the next day, he sent the dead body for post-mortem. After postmortem, the clothing of the deceased, Shirt and Shalwar were taken into possession vide recovery memo. Exh.P.B. In presence of Muhammad Hanif (P.W.1) and Rehmat Ullah alias Rehmi (P.W.9). On that very day, the accused were apprehended by Shabbir Ahmed on the same day "Churri" Exh.P.2 was recovered and taken into possession on the pointation of Namat Ullah accused vide recovery memo. Exh.P.BB, in the presence of Haji Muhammad Ilyas (P.W.8) and Rehmat Ullah alias Rehmi (P.W.9). On the pointation of Fazal Dad, accused, a stick P-3 was also recovered and taken into possession on 6-4-1995 vide recovery memo. Exh.P.CC in the presence of abovementioned P.Ws. He also got prepared the site- plan Exh.P.D. By Muhammad Ishaq Patwari (P.W.10) on that very day. The statements of eye- witnesses Muhammad Latif (P.W.2), Rekhmat Ullah son of Rehmat Ullah (P.W.3), Muhammad Akbar (P.W.4) and Inayat Ullah (P.W.5) were recorded on the same day. Whereas the statement of Muhammad Hafeez (P.W.6) was recorded on 7-4-1995. He also obtained report of Chemical Examiner. 5. According to the post-mortem report Exh.P.D., prepared by Dr. Muhammad Farid (P.W.11) revealed the following injuries on the person of the deceased:-- (a) Stab wound 3 x 2 c.m. On the left chest anteriorly at acardiac area penetrating pleura, left lung and heart; (b) Incised wound 4 x 2 c.m. On left mastoid region. (c) Incised wound 3 x 2 c.m. And 1 c.m. Deep on left leg near knee joint laterally. (d) Multiple bruises on chest anteriorly and posteriorly and on thigh anteriorly and posteriorly as well. 6. Accordingly to his opinion cause of death was stab wound on left Chest (Cardiac area) by which chest wall, left pleura, lingualla of left lung pericardium and heart were stabbed which led to excessive haemorrage and then shock to death. 7. After completion of the investigation, the appellants/accused were sent up for the trial where the prosecution relied upon the ocular testimony of Muhammad Hanif (P.W.1), Muhammad Latif (P.W.2), Rekhmat Ullah son of Rehmat Ullah (P.W.3), Muhammad Akbar son of Allah Ditta (P.W.4), Muhammad Hafiz (P.W.6), the evidence of recovery of bloodstained gross and earth P-1 recovered from the place of occurrence, the recovery of "Churri" P-2, the recovery of stick P.3, Medical Evidence and the evidence of motive. At the trial, the accused denied the recovery of "Churri" and stick and submitted that they were falsely implicated on account of enmity. Muhammad Ayyub and. Muhammad Iqbal, witnesses were produced by the accused/appellants in their defence. The District Criminal Court vide its judgment dated 13-8-1999, convicted and awarded Namat Ullah, accused, the sentence of "Qisas" with/imprisonment to four years four months and seven days as
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"Tazeer" while Fazal Dad, accused was sentenced to life imprisonment up to fourteen years and it was also ordered that his period of detention from 6-4-1995 to 13-8-1999, shall be deducted from the sentence awarded to him. The convict-persons have filed the instant appeal against the aforementioned judgment, whereas reference has also been sent by the trial Court for the confirmation of the sentence of "Qisas". 8. Arguing on behalf of the convict- appellants, Namat Ullah and Fazal Dad, it was vehemently argued by Mirza Muhammad Nisar, the learned counsel that the prosecution miserably failed to bring guilt home to the convict-appellants. The learned counsel contended that the prosecution version put forward by the prosecution is contradicted by the prosecution witnesses. Similarly, material contradictions appear in the statement of the prosecution witnesses. The learned counsel, submitted that it is an unseen occurrence and the story of calling a meeting of "Panchayat" is also fictitious which could not be proved by the prosecution, therefore, the prosecution story stands falsified. The, learned counsel has further argued that the eye-witnesses are closely related to the deceased and inimical to the accused/persons as such witnesses being interested their evidence was not worthy of credence. According to him, District Criminal Court 6.11 in error by recording that the defence version put forth by the accused as compared to the prosecution version was not plausible and natural, thus, the same could not be proved by the defence. The learned counsel pressed into service the submission that the prosecution has withheld the injuries of Namat Ullah, accused, which cast heavy doubt upon the prosecution story. The learned counsel maintained that the District Criminal Court, on the basis of surmises and conjectures reached the' conclusion that the prosecution case was convincing and reliable. The learned counsel further argued that the prosecution failed to establish its case against the accused/ respondents that the recoveries effected from the accused/appellants were also doubtful and when the evidence of both the prosecution and defence evaluated with care, it reflects that a false case wasregistered against the accused/persons. The learned counsel pointed out that Rehmat Ullah son of Kala (P.W.7) a witness of "Panchayat" was given up by the prosecution and this fact also adversely reflects upon the prosecution story. The learned counsel went on to argue that Muhammad Latif (P.W.2) and Muhammad A kbar (P.W.4) are chance witnesses, therefore, their statements could not be relied upon. The learned counsel has referred to the statements of the eye-witnesses persuade that there are material contradictions in their statements which make their testimony further doubtful. The learned counsel submitted that in fact the murder was committed at some other place and was not witnessed by anyone. The story was concocted to implicate the accused/persons because of enmity. According to the learned counsel, if while preparing the injury form Exh.P.E., Muhammad Nawaz Khan, A.S.I. (P.W.16) could note (6) injuries at night how he failed to observe the injury No,7 which was also allegedly inflicted upon the left thigh. According to the learned counsel the addition of an injury was purposely done to strengthen the case of prosecution which creates a heavy doubt upon the prosecution tale. The learned counsel emphasized that according to F.1.R., it was alleged that Namat Ullah inflicted an injury of Knife on the -person of Zubair whereas according to the recovery memo. Exh.P.BB., A "Churri" ( ) was shown to be recovered on the pointation of Namat Ullah, accused. According to the learned counsel, this was done to make the prosecution case more heinous. He has submitted that the prosecution also failed to prove the fact that Zubair, was taken to Kotli Hospital while he was injured because according to the statements of Muhammad Hafeez (P.W.6) Haji Muhammad Ilyas (P.W.8) and Rehmat Ullah (P.W.9), Zubair died spontaneously at the place of occurrence. The learned counsel has vigorously contended that the prosecution has intentionally withheld the fact of committing Zina by Zubair, deceased, with Mst. Kausar. The learned counsel has argued with vehemence that in the light of the spot-examination note, recorded by the trial Court the statements of the recovery witnesses cannot be relied upon. In alternative, the learned counsel has argued that the murder was not premeditated but committed,
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under grave and sudden provocation because when the accused/ persons received the information that Mst. Kausar, sister of Namat Ullah and niece of Fazal Dad, accused/persons was raped by the deceased they were deprived of power of self-control. On this account, the case of the accused/appellants is covered under Exception 1 to section 300, A, P, C, therefore, the impugned order of conviction of accused/person is against the settled principle of law on the subject and liable to be set aside. In support of his contentions, he has cited the following authorities:-- PLD 1984 SC (AJ&K) 21; PLD 1988 SC (AJ&K) 134-207; 1990 PCr.LJ 1390; 1992 SCMR 2047 and PLD 1994 Lahore 392. 9. While controverting the arguments advanced by the learned counsel for the accused/appellants, Muhammad Riaz Alam, the learned counsel for the complainant, vehemently contended that the prosecution story stood proved against the accused/ appellants beyond any reasonable shadow of doubt. The learned counsel argued that the prosecution story is supported by the ocular version of eye-witnesses whose presence is admitted by the accused/appellants. The learned counsel has further submitted that the F.I.R., was lodged promptly and eyewitnesses were named in the F.I.R. The prosecution case does not suffer from any material illegality or infirmity. According to him, all the eye-witnesses are unanimous on the point that the deceased was done away with his life by inflicting injuries with a "Churri" by Namat Ullah, accused/appellant which hit on the left side of the chest, head and leg of the deceased where Fazal Dad, accused/appellant caused injuries on the chest, back and the legs of the deceased with a stick who in consequence of said injuries fell down and while taking to District Headquarter Hospital Kotli, succumbed to the injuries. The learned counsel has submitted that the defence did not raise any counter-version in the statements recorded under section 242, Cr.P.C., Fazal, Dad, accused, failed to take a specific counter-version. However, Namat Ullah, accused for the first time, raised a counter- version in his statement recorded under section 342, Cr.P.C. In the manner that the deceased had committed "Zayadati" ( ) with his sister and he wanted to lodge a report at the police station, therefore, he was involved in false case. The learned counsel has pointed out that the defence did not raise the counter-version as to whether the appellant had acted in grave and sudden provocation. Similarly, no suggestion was put forth to the prosecution witnesses by the defence in this respect. The learned counsel has maintained that the injuries on the person of deceased stand proved due to the cross-examination made upon Muhammad Hanif (P.W.1), whereat, it was suggested by the defence that the third injury on the person of deceased was caused by the complainant party to strengthen its case. According to the learned counsel, it transpires from the suggestions put forth by the defence upon the prosecution witnesses that the occurrence is admitted by the defence. The learned counsel has pressed into service the submission that Muhammad Latif', (P.W.2) and Muhammad Akbar (P.W.4) have proved the meeting of "Panchayat". In this respect, he has referred to me suggestion appearing on page 8 of the statement of Muhammad Hafeez (P.W.6) put forth by the defence. The learned counsel has zealously contended that the prosecution story as alleged by the prosecution not only stands proved by the statements of the eye-witnesses who have no enmity or grudge to falsely implicate the accused/appellants but is also supported by the medical evidence as well as the evidence of recoveries on the pointation of accused/appellants. The prosecution tale also stands corroborated by the blood- stained grass and clay, recovered from the place of occurrence and the clothes of the deceased wearing at the time of occurrence. It is further maintained by the learned counsel for the complainant that the motive as alleged by the prosecution also stand proved by the evidence of prosecution. The learned counsel has also contended that the trial Court has not recorded
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anything against the prosecution in the light of the spot examination note rather it proves the factum of recovery of dagger from the house of the accused. In support of the arguments, the reliance was placed upon the following case law:-- (1) PLD 1983 SC 73. (2) 2001 PCr.LJ 524. 10. Sardar Muhammad Illyas Khan, the learned Additional Advocate-General, appearing on behalf of the State, has fully supported the contentions raised by Muhammad Riaz Alam, the learned counsel for the complainant. 11. I have carefully considered the respective contentions of the learned counsel for the parties, perused the record and the case law cited. 12. The prosecution case rests upon the ocular version, medical evidence and the incriminating recoveries made at the instance of the accused/persons from the place of occurrence. The prosecution has produced five eye-witnesses of the occurrence. All of them alongwith the accused/persons were present on fateful day in the house of Nahmat Ullah, accused. Muhammad Hanif (P.W.1), Muhammad Latif (P.W.2), Rakhmat Ullah son of Rahmat Ullah (P.W.3), Muhammad Akbar (P.W.4) and Muhammad Hafeez (P.W.6) have clearly stated the first hand account of the occurrence before the trial Court which has been accepted. They have deposed that a meeting of a "Panchayat" was called by Fazal Dad, accused in connection with the allegation of illicit relations between Zubair deceased and Mst. Kausar, sister of Namat Ullah accused. All the abovementioned eye-witnesses participated the meeting of "Panchayat". This fact finds support not only by the trend of cross-examination but also from the defence evidence Muhammad Ayyub and Muhammad Iqbal, the defence witnesses, have stated that they participated in the meeting of "Panchayat" where Muhammad Hanif (P.W.1), Muhammad Akbar (P.W.4) and Muhammad Hafeez (P.W.6) were also present. Furthermore, the facts of the commission of occurrence at the time, as alleged by the prosecution and carrying away of Zubair, deceased, from the place of occurrence in injured position are also admitted by the defence. All the above-mentioned eye-witnesses are unanimous on the point that during the meeting of Panchayat" accused/appellants have been threatening Zubair to kill him. They also corroborated the fact that Fazal Dad asked his son to bring a dagger so that he may cut the main organ of Zubair and give it to his mother. The eye-witnesses further testified that on the intervention and after making earnest supplication by Rakhmat Ullah, the accused-appellants forgave the deceased who was sent out on the order of Fazal Dad accused. As soon as deceased went out of the house of Namat Ullah accused, both the accused/persons chased him and launched an attack upon him. Fazal Dad, accused inflicted injuries upon his back and chest with a stick whereas Namat Ullah, accused, caused injuries with a "Churri" on his chest, head and left leg. Zubair fell down and later on, succumbed to his injuries while his way to District Headquarter Hospital Kotli. The presence of the eye-witnesses in the house of Namat Ullah, accused is natural because except Muhammad Hafeez (P.W.6) all of them were invited to attend the meeting of "Panchayat" Their witnessing the occurrence from a close distance in the open light is also proved. Therefore, hardly remains any doubt that the eye-witnesses have stated the same in the manner they had seen. As stated earlier, the presence of P. Ws. Muhammad Hanif, Muhammad Akbar and Muhammad Hafeez is not disputed by the defence. Therefore, the occurrence stands proved. 13. The contention of the learned counsel for the accused/appellants does not appear to be well- founded that theprosecution evidence is full of material contradictions and it does not find any support from the confirmatory evidence. The careful perusal of the evidence shows that material contradictions do not appear in their statements. As far as the contradictions are concerned, there is a clear difference between a contradiction and discrepancy. Contradiction means the statement of the opposite or a denial or an inconsistent statement, whereby the mere discrepancy
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does not amount to an inconsistency and denial of the fact expressed by a witness. The details of the meeting of "Panchayat" that who came earlier and who came later or after the occurrence whether Fazal Dad remained present on the spot or both of the accused/persons fled away and whether a cot was obtained from the house of Anayat Ullah or from the house of Rakhamt Ullah to take Zubair to Hospital are minor discrepancies. It is always very material discrepancies or glaring contradictions coming into conflict with the natural probabilities that militate against the credibility of witnesses justifying the rejection of their testimony. In ordinary course of nature some discrepancies are inevitably bound to occur on account of lapse of memory and power of observation and perception. Parrot-like reproduction of statement can only be expected from the witnesses who go through several rehearsals and are well tutored. If the ocular version is cogent, coherent and reliable about the main story of the prosecution, the minor discrepancies do not matter much. (PLD 1983 SC 73). Furthermore, the defence, in spite of lengthy cross-examination failed to assail credit of eye-witnesses or extract anything which might render their presence doubtful. 14. The next argument of the learned counsel that according of the F.I.R. And the first statement of the complainant recorded under section 161, Cr.P.C., Muhammad Hanif has stated that the deceased was attacked by a knife but he deposed before the Court that the deceased was attacked by "Churri" (a small dagger), makes the case of prosecution doubtful, does not require serious consideration. The perusal of the statement of Muhammad Hanif (P.'W.1), makes it crystal clear that Namat Ullah, accused, launched an attack upon the deceased with a "Churri" and not with a knife. Furthermore, the defence did not confront the witness on this aspect of the case that in F.I.R. And in the statement of Exh.D.A., Muhammad Hanif (P.W.1) has stated knife as weapon of offence but later on he has stated before the Court that Namat Ullah, accused stabbed the deceased with a small dagger (Churri). Likewise, the use of "Churri" as ,weapon of offence lends more support from the statements of Muhammad Latif (P.W.2). Rakhmat Ullah son of Rahmat Ullah (P.W.3) who have in unequivocal manner testified that Namat Ullah inflicted the injuries on the person of Zubair, deceased, with a "Churri". Similarly, "Churri" P.2 was recovered at the instance of Namat Ullah, accused vide recovery memo. Exh.PBB in the presence of Muhammad Ilyas (P.W.8) and Rehmat Ullah alias Rahmi (P.W.9). Therefore, there hardly remains any doubt that "Churri" a weapon of offence, was used by Namat Ullah, accused and not a knife, during the occurrence. On this account the use of word knife instead of "Churri" at the time of registering F.I.R. Does not make the prosecution case suspicious or doubtful. It is celebrated principle of criminal law that F.I.R. Is not a detailed document so as to include each and every detail of the incident reported therein. The purpose of F.I.R. Is to set in to motion the legal machinery for registration and investigation of the case. 15. According to the witness the occurrence as alleged by the prosecution took place near the house of Namat Ullah, accused which is approximately eight Karams from the place of occurrence. The eye-witnesses though closely related to each other and to the deceased are clear and positive on the point that Zubair was murdered by the convict appellant Namat Ullah and Fazal Dad. The trend of cross-examination shows that their presence at the scene of occurrence was not seriously disputed by the defence. Although it was suggested to the eye-witnesses at the time of cross- examination that in fact the deceased was done to death by somebody else at night when he was proceeding towards the house of Namat Ullah, accused, but all these suggestions were denied by the eye-witnesses. Eye-witnesses, as stated earlier though interrelated and also related to the deceased had no such animus so as to falsely implicate or substitute the convict/appellants in the commission of the offence of murder in place of some other culprits. Muhammad Hanif (P.W.1) is uncle of the deceased while Muhammad Latif (P.W.2) and Rakhmat Ullah son of Rahmat Ullah (P.W.3) are closely related to the &ceased Muhammad Akbar (P.W.4) is his maternal grandfather
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whereas Muhammad Hafeez (P.W.6) is his grandfather. But the appellants could not bring any fact on the record which could lead to. The conclusion that the prosecution witnesses were inimical to the accused persons. The accused/appellants are also closely related to the complainant party. Thus, the contention of the learned counsel for the appellants cannot be accepted as true L that since the eye-witnesses were inimical to the accused, therefore, their statement could not be relied upon. It was humanly impossible for the eye-witnesses to involve an innocent person in the case of murder instead of the real culprits. It might be useful to mention here that the statement of an interested witness cannot be relied upon without corroboration, is not a rule of law. It is always the value of the testimony which matters. If the Court is satisfied that the statement of a witness is clear, natural, convincing and trustworthy, it can be relied upon without any corroboration. The contention that the relationship of P.Ws. Make their evidence unreliable since long been discarded by the Superior Court of Azad Jammu and Kashmir as well as of Pakistan. The Supreme Court of Pakistan has gone to the extent that even evidence of an interested witness is always not ignored. It is admitted principle of criminal jurisprudence that mere relationship of a witness to the deceased is not itself enough to discard the statement and an interested witness is one who has an animus…
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