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Petitioner: ABDUL RASHID and 3 others VS Respondent: ABDUL GHAFFAR and 5 others
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Sardar Said Muhammad Khan, Muhammad Younus Surakhvi Title: ABDUL RASHID and 3 others vs ABDUL GHAFFAR and 5 others Case No.: Criminal Appeal No,8 of 2000 Criminal Appeals Nos.30, 31 and 32 of 1995 Date of Judgment:2000-11-22 Reported As: 2001 P Cr. L J 524 Result: Order accordingly
JUDGMENT
JUDGMENT ' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment of the Shariat Court, dated 18-2-2000, whereby the appeal filed by Abdul Ghaffar, accused-respondent No,1, against his conviction and sentence was accepted and he was acquitted while the appeals filed by the appellants, herein, for enhancement of sentence of respondent No,1 and seeking the conviction of other respondents were dismissed by a consolidated judgment. 2. The brief facts of the case are that F.I.R. Was lodged at Police Station Barnala by Abdur Rashid, P.W., on 24-6-1985 at 9-30 a.m. Alleging that Fazal-ur-Rehman, deceased, and the accused- respondents were political workers of Muslim Conference. But the accused-respondents became jealous of Fa7al-ur-Rehman due to his popularity in the last general elections and resolved to put his life to an end so as to get ascendancy in the political field. Consequently, they twice picked up quarrels with Fazal-ur-Rehman on 22-6-1985 and 23-6-1985 but their attempts were failed due to the intervention of Muhammad Anwar and Muhammad Sharif, P.W. However, on 24-6-1985, the fateful day of occurrence, when the complainant and Fazal-ur-Rehman were on their way to Bamala and Fazal-ur-Rehman, after buying a packet of cigarettes from the shop of Muhammad Yusuf, came out of his shop, the accused-respondents, who were waiting for him in a hide-out armed with guns and sticks, attacked him; Abdul Ghaffar, respondent No,1, fired at Fazal-ur- Rehman with .12 bore gun which hit him at his chest and resulted in his instantaneous death while Abdul Qayyum, accused-respondent, fired with gun which caused injury to the left little finger of Muhammad Siddique, P.W. The occurrence was stated to have been witnessed by Abdur Rashid, complainant, Muhammad Siddique, Walayat Khan and Muhammad Yusuf, the shopkeeper. After completion of the investigation, the accused were challaned in the District Criminal Court, Bhimber,
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for trial under sections 307, 147, 148, 149, 109, A.P.C., read with section 5 of the Islamic Penal Laws Act. The trial Court, after completion of the trial, convicted and sentenced Abdul Ghaffar, accused- respondent No,1, under section 24 read with section 3 of the Islamic Penal Laws Act to life imprisonment and payment of "Diyat" to the tune of Rs,50,000; in case of non-payment of "Diyat", he had to undergo simple imprisonment for two years. The accused-respondents Nos.2 to 5 were acquitted by the trial Court. Abdul Ghaffar, accused-respondent No,1, filed an appeal to the Shariat Court against his conviction and sentence while the appellants, herein filed two appeals seeking the enhancement of the sentence of Abdul Ghaffar, accused-respondent, to the punishment of Qisas' and to convict and sentence the other accused-respondents after setting aside their acquittal. The appeal filed by Abdul Ghaffar, respondent, was accepted by the Shariat Court and he was acquitted whereas the appeals filed by the appellants, herein, against the accused- respondents were dismissed. It is against the aforesaid judgment of the Shariat Court that the present appeal has been preferred. 3. It has been argued by Ch. Muhammad Afzal, Advocate, the learned counsel for the appellants, that the Shariat Court has passed the impugned judgment on flimsy grounds which are not recognized by law and are also belied by the relevant material on the record. He has argued that the view expressed by the Shariat Court that as the incidents with regard to the picking up of quarrel by the accused persons on 22-6-1985 and 23-6-1985 were not put to the accused- respondents in their examination under sections 242 and 342, Cr.P.C. The existence of motive alleged by the prosecution is negatived. He has contended that motive for committing murder was alleged and proved in terms that the accused-respondents committed the murder of Fazal-ur- Rehman due to political rivalry which was further deepened in the last general elections. He has contended that the prosecution witnesses have not been specifically challenged on the question of aforesaid rivalry and even otherwise, the motive to commit an offence is important only in cases which are based on circumstantial evidence and not in cases which are mainly based on ocular evidence, as in the instant case; the Shariat Court has also observed in the impugned judgment that in case of ocular evidence, it is not necessary to prove the motive but despite that while passing the order of acquittal of the respondents considered the same as one of the grounds. The learned counsel has argued that in fact the incidents of 22-6-1985 and 23-6-1985 did not constitute motive rather the same were the consequence of motive, i.e,, political rivalry which was augmented as a result of general elections in which the rival parties also participated. He has further contended that even if the aforesaid two incidents, which took place prior to the date of occurrence, are excluded from consideration, the prosecution case is not adversely affected. He has further submitted that the Shariat Court has also given undue importance to the fact that Zulqamain, A.S.-I. Who had prepared the inquest report and injury sheet was not examined by the prosecution. The learned counsel has submitted that the non-compliance of Police Rules, regarding preparation of injury sheets and inquest reports etc. Are not fatal to the prosecution if the same is otherwise proved. He has also argued that the Shariat Court has attached undue importance to the fact that the case was registered by Nazir Hussain Shah, Muharrer Head Constable, who was examined by the prosecution but the relevant F.I.R. Was not proved by him; he was not asked as to whether he had registered the case. The learned counsel has submitted that these are collateral matters which have hardly any serious bearing on the prosecution case. The learned counsel went on to argue that in the instant case the investigation was undertaken by Akhtar Hussain, S.-I., and, thus, non-production of Zulqarnain, A.S.-I., who is alleged to have prepared the inquest report and injury sheet cannot be regarded as a fact which would adversely affect the prosecution case. He has further submitted that Muhammad Yusuf, an eye-witness, was left by the prosecution but he has not been produced in defence; the learned counsel has contended that it was not necessary for the prosecution to produce ali the eye-witnesses,
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especially so when three eye-witnesses out of four were examined by it at the trial. He has also submitted that there is no contradiction between the statements of the eye-witnesses and the medical evidence. Even otherwise the statements of eye-witnesses would have preference over medical evidence. The learned counsel has further argued that the Shariat Court has taken into consideration the minor discrepancies in the statements of the prosecution witnesses which are natural in the present case, because the statements of the eye-witnesses were recorded after more than three years of the incident. He has further submitted that except Abdur Rashid, complainant, none of the other witnesses has been proved related to the complainant party and no enmity on the part of prosecution witnesses has been established. The learned counsel has argued that even otherwise, the evidence of a related witness cannot be discarded and corroboration of the statement of a related witness is not insisted upon. He has further argued that the Shariat Court was not correct in holding that the eye-witnesses were interested witnesses; because an interested witness is one who has motive to implicate an innocent person in a heinous crime like murder. The learned counsel has cited following authorities in support of his contentions:-- ' In a case reported as Mahboob Shah v. The State PLD 1987 Sh.C. (AJ&K) 47, it was observed that mere relationship of a witness with the deceased is no ground to discard his evidence until and unless he is otherwise found to be unreliable. ' In a case reported as Niaz Muhammad v. The State PLD 1983 SC (AJ&K) 211, it was observed that the prosecution was not obliged to produce all the witnesses and that the corroboration of a related witness should not be insisted as a rule of law; the evidence of a witness in each case has to be evaluated on merits and if it rings true, the testimony of such a witness can be relied upon without insisting for corroboration. It was observed that as the testimony of the witnesses on the material points was convincing, the mere relationship was no ground to disbelieve their testimony without corroboration. It was further observed that difference between the distances recorded in the site plan and those stated by the witnesses at the time of their statements in the Court is not material because ordinarily such distances are not given by the witnesses in precise terms. ' In a case reported as Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23, it has been observed that relationship of a witness with the deceased is not sufficient to discard his testimony if he is otherwise found to be trustworthy. It was also observed that enmity must be of such a degree which is sufficient to motivate a culprit to commit murder. It was further opined that the relationship and enmity merely put the Court on guard to evaluate the evidence cautiously. It was further held that the evidence of the doctor as well as eye-witnesses is definitely against the treatises of medical and forensic science, but this was not sufficient to throw away the prosecution case because the same was otherwise proved. ' In a case reported as Mehrban v. The State PLD 1978 SC (AJ&K) 96, it was observed that the testimony of a witness who is related to the deceased and belongs to the rival faction cannot be rejected if the same is otherwise found to be reliable. ' In a case reported as Eid Wali v. The State 1983 PCr.LJ 1418, it was observed that if the standard of evidence in cases of Hadd and Qisas is not available, the Court is competent to award punishment of death as Tazir under section 3 of the Islamic Penal Laws Act. ' In a case reported as Shabbir Ahmad v. The State 1997 PCr.LJ 1539, it was held that motive was not a sine quo non for proving the offence of murder. It was further observed that absence of motive is not a valid ground for not awarding punishment of death to an accused person who is guilty of murder. 4. Ch. Muhammad Mushtaq, Additional Advocate-General, owned the arguments advanced on behalf of the appellants.
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5. In reply, Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the accused-respondents, has controverted the arguments and supported the impugned judgment more or less on the same grounds which weighed with the Shariat Court. He has submitted that Nazir Hussain Shah, Muharer Head Constable, was produced in the Court as a witness but the factum of registration of the case after receiving the F.I.R. Was not got proved by him. According to the learned counsel, this omission on the part of prosecution would lend support to his contention that the F.I.R. Was prepared by the police after making preliminary investigation on the spot. He has further contended that the fact that Zulqarnain, A.S.-I., reached the spot within an hour or two after the occurrence supports his contention that in fact the F.I.R. Was concocted and the eye-witnesses were not the witnesses of occurrence but they were planted and their evidence was fabricated. The learned counsel has submitted that the injury sheet and inquest report were prepared by Zulqamain, A.S.-I., and as such he was an important witnesses but despite that the prosecution did not examine him. The learned counsel went on to argue that Akhtar Hussain, S.-I., was away from the police station and according to his own statement, he reached the place of occurrence at about 1-00 p.m. He has contended that, according to the prosecution, the incident took place about 8-00 a.m. And, thus, it cannot be said that Zulqarnain, A.S.-I., did not conduct any investigation for the period of more than five hours. The learned counsel has also submitted that failure of prosecution to prove the alleged incidents which took place on 22-6-1985 and 23-6-1985 negates the presence of any motive for committing the alleged offences by the accused-respondents.. He has submitted that the Shariat Court has rightly held that three prosecution witnesses, namely, Abdur Rashid, Muhammad Siddique and Walayat Khan, are related and inimical to the accused-respondents and, thus, their testimony cannot be relied upon without corroboration of their statements. The learned counsel has submitted that Walayat Khan, P.W., is a casual witness and he also suppressed the relationship with the complainant party. According to the learned counsel Muhammad Siddique, who was allegedly injured in the incident by the fire of Abdul Qayyum, accused-respondent, is also not reliable because he states that when be came out of the shop of Muhammad Yusuf, the deceased was encircled by the accused-respondents and on seeing him, Muhammad Shafi, accused, directed the other accused to kill Fazal-urRehman because he (Muhammad Siddique) had also reached the spot and that he was also given stick blows by Muhammad Shafi, accused-respondent, in addition to the injury which was caused to him by fire of Abdul Qayyum, accused. He has contended that no gun was allegedly recovered from Abdul Qayyum and the crime empties allegedly seized by the police from the spot have been reported by the Forensic Expert to have been fired from the gun which was recovered from Abdul Ghaffar, accused-respondent. Thus, he has contended that the prosecution story that Muhammad Siddique, P.W., was injured by the gun-fire of Abdul Qayyum, accused-respondent, is falsified. The learned counsel has referred to the statements of eye-witnesses to persuade us that there are material contradictions in their statements which make their testimony further doubtful. The learned counsel has maintained that in fact the murder was committed at some other place and was not witnessed by anyone but the story was concocted subsequently, that it was committed outside the shop of Muhammad Yusuf. He has also submitted that the recovery of gun from Abdul Ghaffar, accused-respondent, has not been proved because Naseer Ahmad and Inayat Ali who are recovery witnesses were examined by the prosecution but they were not shown in the recovery memo. Exh.P.L. Thus, according to him, the recovery of the gun having become doubtful, the report of Forensic Expert that empties of two cartridges seized from the spot were fired from the gun which was recovered from Abdul Ghaffar, accused-respondent, is of no legal consequence. The learned counsel has submitted that according to the post-mortem report, the shirt of the deceased was burnt due to fire which could only be possible if the gun was fired from a distance of less than three feet but according to the statements of prosecution witnesses made in the Court,
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Abdul Ghaffar, accused-respondent, fired at the deceased from a distance of five to seven yards. This, according to the learned counsel, makes the prosecution case further doubtful. He has also submitted that according to medical report of Dr. Muhammad Tufail Khan, Medical Officer, the injury sustained by Muhammad Siddique, P.W., at his little finger was caused by a blunt weapon whereas according to the prosecution, the injury was caused by the fire which was attributed to Abdul Qayyum, accused-respondent. Similarly, according to Dr. Muhammad Akram, Choudhry, who performed the postmortem, he also recovered a bullet from the dead body whereas the prosecution case is that Abdul Ghaffar, accused-respondent, fired with .12 bore gun which hit Fazal-ur-Rehman and caused his death. The learned counsel took pains to substantiate his contention that the testimony of the eye-witnesses was rightly rejected by the Shariat Court because the same suffered from contradictions in addition to the fact that they were related to the deceased and were inimical to the accused persons. He has also argued that some of eye- witnesses state that their statements under section 161, Cr.P.C. Were recorded on the day of occurrence while others state that the same were recorded on the following day. In alternative, the learned counsel has maintained that in case of conviction of respondent No,1, he should not be awarded the capital punishment in view of the fact that the eye-witnesses do not fulfil the standard required in case of Qisas. He has referred to a case reported as Muhammad Ajaib v. Mehboob Khan 2000 PCr.LJ 1484, wherein the conviction and sentence of life imprisonment under section 3 read with section 24 of the Islamic Penal Laws Act and a fine of Rs,50,000 were maintained on the ground that ocular version of the prosecution witnesses does not fulfil the standard of requirement of evidence which was needed in case of Qisas and that the accused was rightly awarded life imprisonment as Tazir. He has also contended that in case of sentence of imprisonment, respondent No,1 was entitled to the benefit of section 382-B, Cr.P.C. 6. We have given due consideration to the arguments advanced at the Bar. The first question which needs consideration is as to whether the failure of the prosecution to put the question to Nazir Hussain Shah, Muharrer Head Constable, regarding the factum of registration of the case, is fatal to the prosecution case as has been held by the Shariat Court. It may be observed that in the instant case, Abdur Rashid, complainant, had filed a written F.I.R. With the aforesaid witness who registered the case. Abdur Rashid P.W. Has appeared as a witness and has proved the F.I.R. Lodged by him. It appears that Nazir Hussain Shah, Moharer Head Constable, who was produced by the prosecution was not asked the question -regarding the registration of the case by him but the fact remains that the accused-respondents also did not cross-examine him to show that in fact the case was not registered by him or that F.I.R. Was got written by him or Zulqarnain, A.S.-I., after making preliminary investigation on the spot. So far as Zulqamain, A.S.-I., is concerned, he did not make any important investigation, i.e,, the seizure of the empties from the spot or any other incriminating articles. The investigation in the case was made by Akhtar Hussain, S.-I., who was produced by the prosecution but he has also not been cross-examined so as to establish that the F.I.R. Was concocted or the same was prepared by the police after making preliminary investigation on the spot. He has categorically stated that he investigated the case and no investigation was made prior to his arrival on the spot. 7. The contention on behalf of the accused-respondents that inquest report and injury sheet were prepared by Zulqamain and his non-production is fatal to the prosecution case is not tenable for the simple reason that the preparation of inquest report etc. Are hardly material if the case is otherwise established by the prosecution. There may be some importance of inquest and injury sheet in certain cases where cause of death is doubtful but in the instant case, there is no such dispute. Besides the F.I.R. In the aforesaid inquest report and injury sheet, the fatal injury is alleged to have been caused by .12 bore gun. Therefore, the non-production of Zulqarnain, A.S.-I., as a
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prosecution witness does not detract from the truth of the prosecution story or renders the same as doubtful. 8. The next question which needs resolution is as to whether the motive in the instant case has not been proved merely because the incidents of 22-6-1985 and 23-6-1985 were not put to the accused persons while they were examined under section X42, Cr.P.C. It may be observed that if a piece of evidence is not put to an accused person in his examination under section 342, Cr.P.C. Either the case may be remanded for re-examination of the accused person under section 342, Cr.P.C. Or the same may be excluded from consideration. We are of the opinion that instead of remanding the case, we exclude from consideration the evidence in support of the fact that the accused-respondents tried to pick up quarrel with the deceased on the aforesaid two dates. But that does not imply that there was no political rivalry which actuated the incident. The aforesaid two incidents were the result of political rivalry which is alleged as motive in the case and were not motive itself. Thus, the Shariat Court was not justified to hold that as the aforesaid two incidents were not put to the accused-respondents under section 342, Cr.P.C., there was no motive for the accused persons to attack the deceased. It may also be pointed out that this is a well-settled principle of law that if a case is primarily based on ocular evidence, it is not necessary to prove motive. A reference may be made to the following authorities:- ' In a case reported as Muhammad Ramzan v. The State 1992 ALD 302(1) it was held that mere absence of motive was no ground to doubt the truth of prosecution case. ' In a case reported as State/Government of Sindh v. Sobharo 1993 SCM R 585, it was observed that absence or weakness of motive would not come in the way of prosecution if the case is otherwise proved by reliable evidence. ' In a case reported as Shabbir Ahmad v. The State 1997 PCr.LJ 1539, it was held that motive was not a sine quo non for proving the offence of murder. 9. The finding of the Shariat Court that there are contradictions between the medical evidence and the eye-witnesses is also not correct. According to the finding of the trial Court, the fire which caused death of Fazal-ur-Rehman was fired from a close range. The site plan shows that at the time of fire, the distance between the assailant and the deceased was eleven feet. According to medical jurisprudence, the burning of the clothes and blackening may be present if the gun is fired from a distance of about three feet or less. After substracting the length of barrel of the gun and its butt, which may be about 5/6 feet, the remaining distance between the muzzle of the gun is more or less remains only about 5/6 feet; the difference of 2/3 feet is negligible as the same may be due to wrong perception of the witnesses. Thus, there is no material contradiction in the statements of eyewitnesses and medical evidence. It may be observed that it is not possible for the witnesses in such a case to give the precise distance; there is always a possibility of error of few feet or yards. The observation of the Shariat Court that according to the statement of eye-witnesses, the distance between the assailant and deceased was about five to six yards is concerned, it may be observed that the witnesses gave statements in the Court after more than three years of the incident. Therefore, the aforesaid statements at the trial would not nullify the distance between the assailant and victim of offence at the time of firing which is mentioned in the site plan. Even otherwise, if ocular evidence is found trustworthy, the same cannot be rejected merely because there was some variation between the prosecution witnesses and the medical evidence on the point of distance between the assailant and the victim at the time of inflicting the injury. 10. The Shariat Court has also held that the recovery memo. Exh.P.L., which was signed by Naseer Ahmad and Inayat Ali was not proved by the witnesses. It may be observed that the aforesaid two witnesses have clearly stated that the gun, Exh.P.6, was recovered at the instance of Abdul Ghaffar, accused-respondent. They have proved recovery memo. Exh.P.E. Taking it to be the recovery memo. Of the gun which is Exh.P.L. Due to the inadvertence of prosecutor who conducted the trial.
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Apparently, the mistake was caused as a result of oversight of the prosecutor and, thus, it cannot be said that the recovery of the gun from Abdul Ghaffar, accused-respondent, has not been proved, especially so when Exh.P.E. Is a recovery memo. Of the licence of the gun which is in the name of the accused-respondent. It follows from what has been stated above that the Shariat Court was not justified in holding that the gun in question has not been proved to have been recovered from Abdul Ghaffar, accused-respondent. 11. The reasoning given by the Shariat Court that the recoveries of empties and gun were not witnessed by independent witnesses of the locality and as such the same cannot…
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