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Petitioner: AZHAR HUSSAIN VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Shahid Hameed Dar, Rauf Ahmad Shaikh Title: AZHAR HUSSAIN vs THE STATE Case No.: Criminal Appeal No,265 and Murder Reference No,606/RWP of 2005 Date of Judgment:2012-04-19 Reported As: 2012 YLR 2824 Result: Bail granted
JUDGMENT
JUDGMENT ' SHAHID HAMEED DAR, J.--- Azhar Hussain appellant was held guilty under section 302(b), P.P.C. For the murder of Muhammad Ashfaq, by learn ed Additional Sessions Judge, Gujjar Khan, District Rawalpindi vide judgment dated 26-7-2005 and sentenced to death with direction to pay a sum. Of Rs,2,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to under go simple imprisonment for six months. His co-accused Attar Israr was, however , acquitted of the charge by the learned trial Court on extension of benefit of doubt, whereas his co-accused, Zawar Hussain was declared as proclaimed of fender . 2. The convict-appellant by filing Criminal Appeal No,265 of 2005 has called in question his conviction and sentence under the impugned judgment, whereas, the learned trial Court has submitted reference under section 374, Cr.P.C. (Murder Reference No,606 of 2005) for confirmation of the sentenc e of death of the appellant. We propose to dispose of both the matters through this single judgment. 3. The facts, as narrated by Altaf Huss ain-complainant (P.W.7) in complaint Exh.PE/1, on the basis whereof F.I.R. (Exh.PE) had been registered were that at about 7-30 p.m., on 11-3-2001, he along with his brother Muhammad Ashfaq (deceased) and Mohabbat Hussain (P.W.8) was present in his house; Attar Israr (since acquitted) arrived there and told Muhammad Ashfaq that he had held a dialogue, with Zawar Hussain (since P.O.) and Azhar Hussain (appellant) for winning a compromise, therefore, he should accompany him to the said house, so as to seek an apology from Zawar Hussain and others, to which Muhammad Ashfaq did not agree, but Attar Israr gave an assurance that in case of any untoward happening, he would take the responsibility; on the insistence of Attar Israr, he (complainant), along with his brother Muhammad Ashfaq and
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Mohabbat Hussain (P. W .8) accompanied Attar Israr to the house of Azhar Hussain (appellant) and Zawar Hussain (since P.O.) and reached there at 8-30 p.m.; they sat on cots lying in a room and chatted with Mst.Azizan Bibi, widow of Mustaqeem with regard to compromise qua the murder of her husband; all of a sudden, Zawar Hussain (since P.O.) and Azhar Hussain (appellant), both armed with pistols, came there, raised a lalkara that Muhammad Ashfaq be taught a lesson for having murdered their father; both of them made straight fire-shots at Muhammad Ashfaq hitting his eye, head, neck and other parts of his body , which caused his instantaneous death; both the accused fled the scene of occurrence by making aerial firing. ' The motive behind the scene was that Muhammad Ashfaq had committed the murder of Mustaqeem Khan, father of the accused, for which he was convicted/ sentenced and after serving out the sentence he had been released from the prison a year ago; the widow of Mustaqeem Khan and his sons had shown intentions to compound the offence with Muhammad Ashfaq (deceased); as such, Zawa r Hussain (since P.O.), Azhar Hussain (appellant) and Attar Israr (since acquitted) in furtherance of their common intention, called the complainant, Mohabbat Hussain and Muhammad Ashfaq to their house deceptively and committed intentional murder of Muhammad Ashfaq. Leaving the dead body at the spot, the complainant left for the police station for reporting the crime. He, however , came across Syed Imdad Hussain, S.-I., (P.W.16), at Police Post Sakhu, at 9- 30 p.m. On 11-3-2001, who recorded his statement (Exh.PE/1) and despatch ed the same to Police Station Mandra, District Rawalpindi for registration of formal F.I.R.; Zulfiqar Ali, S-.I. (P.W.6) on receipt thereof drafted formal F .I.R. (Exh.PE) at. 10-20 p.m. The same day . 4. Imdad Hussain, S.-I. (P.W.16) assumed the investigation of this case, reached the place of occurrence, examined the dead body of the deceased, prepared inquest report (Exh.PH), application for postinortem examination thereof (Exh.PG), appointed Mushtaq Ahmad, 3108/C (P.W.17) to escort the dead body to the mortuary; inspected the place of occu rrence, collected blood-stained earth vide memo Exh.PB, secured empties, eight in number (P2/1-8), vide memo Exh.PD, secured blood-stained bed-sheet (P1) vide memo Exh.PC, and prepared visual site plan Exh.PM; Mushtaq Ahmad, constable (P. W.17) tendered the last worn bloodstained clothes of the deceased (P5 to P7), a sealed phial containing bullet-head (P8), which he took into possession vide memo Exh.PN, got prepared site plan in scale in duplicate Exh.P A and Exh.P A/1 by Qamarud- Din, draftsman (P.W.4). He arrested accused Attar Israr on 25-3-2001 and after necessary interrogation sent him to judicial lock up. ' Dur-e-Muhammad, S.-I. (P.W.14) arrested accused Zawar Hussain (P.O.) and Azhar Hussain (appellant) on 23-2-2002 and recovered one pistol 30-bore each (P3 and P4) at their instance on 28-2-2002 vide memos of recovery Exh.PI and Exh.PK, respectively , attested by Muhammad Hussain and Manzoor Hussain P. Ws. (not produced). 5. At trial, prosecution in order to prove its case produced nineteen witnesses in all. The ocular account was furnished by Altaf Hussain-complainant (P.W.7), Mohabbat Hussain (P.W.8) and Zafar lqbal (P.W.9). They (P.W.7 & P.W.8) also stated about the motive part of the incident. None of the private witnesses entered appearance to testify the recovery of the pistols at the instance of the accused, however , Dur-e-Muhammad, S.- I. (P.W.14) deposed about the factum of recovery of pistol (P4) vide memo Exh.PK at the instance of the appellant, which, however , is of no consequence owing to a negative report (Exh. D-2) from the office of Forensic Science Laboratory . 6. The medical evidence was presented by Dr.Mushtaq Ahmad, who was initially examined as P.W.1, when only Attar Israr faced the trial, but, on arrest of the appellant and that of his repeatedly runaway co-accused Zawar Hussain, he was examined as P.W.10. He conducted autopsy on the dead body of Muhammad Ashfaq
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(deceased), at 3.45 a.m., on 12-3-2001, vide necropsy report Exh.PF (pictorial diagram Exh.PF/1 and Exh.PF/2) and found following injuries thereon:- (1) An entry wound measuring 1 cm x .8 cm on medial aspect of right eyebr ow. (2) An exit wound measuring 1.5 cm x 1.5 cm on back of head, lower part and midline. (3) An entry wound measuring .5 cm x .5 cm on the left side of neck, lateral to midline. (4) An exit wound foreign body could be felt on back of middle of chest, left side .6 cm from , midline, incision given and bullet collected. (5) An entry wound measuring 1 cm x 1 cm on the left side of thigh, upper lateral with touching margin on lower aspect. (6) An exit wound measuring 1 cm x .8 cm on the upper level of left hip bone, back. (7) An entry wound measuring 1 cm x 1, cm on left thigh, lateral and lower aspect with touching margin on lower aspect. (8) An exit wound measuring 1 cm x 1.5 cm on the back and lateral aspect of left thigh, upper part. (9) An entry wound measuring 1 cm x 1 cm on the back of left elbow joint. (10) An exit wound measuring 1 cm x 1 cm and 2 cm fr om the entry wound and medial to the entry . (11) An entry wound measuring 1 cm x 1 cm on the upper and fr ont left arm with fractur e of humor ous bone. (12) An exit wound measuring 1.5 cm x 1.5 cm on left armpit, inner and back aspect, 2 cm fr om armpit fold. ' The cause of death, as recorded by the medical officer was, due to the damage caused by Injuries Nos.1 and 3 to the vital organs of the deceased, which was sufficient to cause death in the ordinary course of nature and time. All the injuries were ante-mortem and caused by firearm. The probable time that elapsed between injuries and death was "within fifteen minutes", whereas between death and postmortem examination, it was within nine hours. ' The evidence regarding abscondence of the appellant was tendered by Muhammad Ishaque 1270/C, P. W.12, Dure-Muhammad S.-I./I.O. P.W.14 and Muhammad Ishtiaq 2808/C P.W.19. Rest of the evidence produced by the prosecution was more or less formal in nature. 7. Learned prosecutor gave up remaining prosecution witnesses as unnecessary and tendered in evidence report of the Chemical Examiner (Exh.PP) and that of Serologist (Exh.PQ) regarding blood-stained earth, declare d the prosecution case closed. 8. The appellant as well as his co-accuse d Attar Israr (since acquitted) and Zawar Hussain (since P.O.) recorded their statements under section 342, Cr.P.C, entered the plea of innocence and false involvement opting not to depose within the scope of section 340(2), Cr.P.C.- or adducing the defence evidence except for the appellant, who tendered two documents, Exh.D1 and Exh.D2 in defence. The contention adopted by the appellant in reply to the question as to why this case against him and why the P. Ws. Had deposed against him, is reproduced hereunder:- "In fact Altaf Hussain complainant of the present case was having an illicit liaison with Mst.Qamraz, the wife of Muhammad Ashfaq deceased, as such he (complainant) wanted to remove him from the way and he hired one Salamat Teli to get Muhammad Ashfaq murder ed, who was our servant, as such the complainant got his brother Muhammad Ashfaq eliminated through Salamat Teli afore-named, who murder ed Muhammad Ashfaq. After the occurr ence said Salamat Teli was sent abroad by Altaf Hussain complainant in order to maintain the secrecy of murder of Muhammad Ashfaq by Salamat Teli afore- named. The complainant took along Muhammad Ashfaq to the house of Muhabat Hussain, an alleged eyewitness of the occurr ence and from there he sent hint to our house, wher e Muhammad Ashfaq was done to death by the former (Salamat Teli). The complainant and Muhabat Hussain, the alleged P. Ws.
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Were not present at the spot and they did not witness the occurr ence. It was an unwitnessed occurr ence. We have been involved in the present case, as the complainant party was having grudge/gr ouse against us. I and my brother Zawar Hussain have been made a scope-goat in this case because qur father was killed by Muhammad Ashfaq afore-named and he was convicted/ sentenced by the learned court concerned, as such on the one hand Altaf Hussain complainant implicated us in the said false case and on the other hand removed Muhammad Ashfaq from his way in order to marry with Mst.Qamraz, the wife of the deceased. After the death of Muhammad Ashfaq, Altaf Hussain complainant of the instant murder case contracted marriage with Mst.Qamraz afore-named. We were not present at the time of alleged occurr ence at the spot and the complainant of the present case Altaf Hussain involved us with his mala fides, although we are absolutely innocent and the prosecution story as alleged in the F.I.R. Is nothing but mer e a concoction and the same is not at all based on any sort of r eality ." 9. The learned Additional Sessions Judge on culmination of the trial proceeded to convict/sentence the appellant as mentioned hereinabove, besides declaring Zawar Hussain accused a P.O. As he, slipped away , at the stage of final arguments. He, however was arrested on 18-12-2008 and convicted/sentenced in identical terms, like the appellant was meted out, vide judgment dated 29-10-2009 against which he filed an appeal (Criminal Appeal No,415 of 2009) which has been decided/dismissed by this Court, through an independent judgment of even date. 10. We have heard learned counsel for the parties and perused the record with their able assistance. 11. Learned counsel for the appellant has contended that by putting the defence version in juxtaposition to the prosecution story , the truthfulness of the defence version would be evident from the fact that Attar Israr, a key figure in the prosecution case and main persuader to have taken the deceased with him to the house of the appellant, stood acquitted of the charge; the empties recovered from the spot had not been found matched with the pistol recovered from the appellant, as is evident from the Forensic Science Laboratory's report Exh.D2; the witnesses of ocular account are not only related inter-se and with the deceased but they are biased towards the appellant, therefore, their evidence requires strong corroboration; the presence of P.W.7, P.W.8 and P.W.9 at the spot at the relevant time of occurrence was highly doubtful as the purpose show n by them for their presence at the spot did not appeal to common sense, rather the acquittal of Attar Israr accused negates the very purpose of their presence at the spot, at the crucial hour; the abscondence of the appellant has no value in the eyes of law as the eye-witness account is not believable; the procedure adopted by the trial Court for declaring the appellant an absconder was illegal thus, insuf ficient to label the appellant a fugitive from law; the incident had not been witnessed by the P.Ws., therefore, the appellant is entitled to clean acquittal; the appellant was found not involved in the occurrence during the course of investigation, as is evident from the statement of Inspector Kareem Nawaz Khan (DW -1); the witnesses of ocular account made dishonest improvements in their testimonies which had caused collapse of the prosecution case in entirety but trial Court failed to deal with the aforesaid situation in a lawful manner; incomplete statement of P.W. Mohabb at Hussain a witness of ocular account could not be read in evidence which has been unlawfully relied upon by the trial Court in sheer disregard to the principles, settled by law; all the doubts and lacunae in the prosecution case, unlike the settled principles of law have been resolved in favour of the prosecution; no other conclusion than the acquittal of the appellant, was possible from the evidence, adduced by the prosecution at trial but against all estimations and probabilities, learned trial Court passed the impugned judgment which is patently illegal and calls for interference by this Court. Alternatively submits that the case of the appellant hints at more than one mitigating factor which call for a reduction in the quantum of sentence of the appellant. Relies upon cases titled: Riaz Ahmad alias Rajoo and another v. The State (PLD 1970 Lahor e 689), Tikka Khan and 3 others v. The State
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(PLD 1974 Lahor e 100), Akhtar Ali and others v. The State (2008 SCMR 6), Habibullah and others v. The State (PLD 1969 SC 127), Ali Bahadur and 2 others v. The State (1998 PCr.LJ 24), Muhammad Yameen alias Raja v. The State and others (2009 SCMR 84), Ali Ahmad and 2 others v. The State (1978 SCMR 384), Muhammad Farooq and another v. The State (2006 SCMR 1707 ), Naik Muhammad alias Naika and another v. The State (2007 SCMR 1639 ), Mst. Sabeeha v. Ibrar and others (2012 SCMR 74), Shaukat Rehman alias Jernail v. Rahim Noor and another (2002 PCr.LJ 1946), Rohtas Khan v. The State (2010 SCMR 566) and Muhammad Arshad and others v . The State and others ( PLD 201 1 SC 350 ). 12. Conversely , learned State Counsel assisted by learned counsel for the complainant has supported the impugned judgment by arguing that the ocular account is trustworthy which has been rendered by natural witnesses; the evidence of the witnesse s is directly corroborated by the medical evidence coupled with the evidence of abscondence of the 'appellant; the active participation of the appellant along with his run away partner stood established through the evidence of unimpeachable character and it is a case wherein there does not exist any mitigation in favour of the appellant. Places reliance on the cases titled: Ali Khan v. The State (1980 SCMR 474), Muhammad Iqbal alias Javed Iqbal v. The State (PLD 1976 SC 291), Noor Muhammad v. The State (PLD 1991 SC 150), Muhammad Sharif and another v. The State (PLD 2001 SC 94), Sarfraz alias Sappi and 2 others v . The State ( 2000 SCMR 1758 ) 13. After hearing the arguments of learned counsel for the appellant and also for the State and learned counsel for the complainant and taking into consideration the evidence available on record with their able assistance, it is observed that the prosecution case is plain and simple which takes a start from the point, when Attar Israr (since acquitted) ersuaded Muhammad Ashfaq (deceased), Altaf Hussain complainant P.W.7 and Mohabbat Hussain P.W.8 to pay a visit to the house of Azhar Hussain appellant for striking compromise with him, qua the murder of his father Mustaqeem Khan, for which Muhammad Ashfaq (deceased) had been found guilty and awarded sentence by the trial Court. Though he after having served the total sentence had returned to the village, a year back, yet element of enmity could not be presumed to have gone extinguished. 'It has been vociferously argued by the learned counsel for the appellant that the very basis of the prosecution case, relating to the factum of paying a visit to the house of the appellant by Muhammad Ashfaq (deceased) in search of compromise qua the previous murder case had gone dismantled owing to the acquittal of Attar Israr through the impugned judgment. The learned trial Court while acquitting Attar Israr has nowhere observed in the impugned judgment that he had not gone to the place of occurrence on the fateful day or that he had not been instrumental in leading Muhammad Ashfaq deceased and the eye-witnesses to the place of occurrence, rather the main reason, in recording acquitt al of Attar Israr was that no evidence had been produced by the prosecution to show that he was possessed with a criminal intent to have led the deceased party to the house of the appellant for some mischievous purpose. The learned trial Court in this regard was of the view that he too might have been taken by surprise when situation, at the house of the appellant , erupted into a shootout by the appellant and his co-accused at the deceased. The acquittal of Attar Israr does not dent the prosecution case in any manner nor does it give rise to a conclusion that the deceased had gone to the house of the appellant for some other purpose than in quest of a compromise, qua the murder of the father of the appellant. There are a couple of factors which stand admitted on both the sides and there we find no cleavage in respect thereto, for instance, the date, time, the'place of occurrence and the motive appear to be the common factors. 14. Insofar as the raison d'etre in the instant case is concerned it relates to the murder of Mustaqeem Khan, the father' of the appellant as well as that of his, absconding co-accused which had been committed by Muhammad Ashfaq deceased who was charged for the said murder and after a full-fledged trial he was convicted and sentenced therein. His return to the same village where the accused/appellant also lived, after serving out the
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entire sentence was a perennial danger for both the sides which could ignite another bloody encounter between them. At no stage of the trial, the prosecution or the defence disputed each other on the point of motive as an un-rebuttable circumstance existed to believe that the motive set up by the prosecution was a proven fact. 15. Insofar as the ocular account furnished by the prosecution is concerned, it has been rendered by three witnesses, two cited in the F.I.R. And one namely Zafar lqbal (P.W.9), appearing at the investigation stage and then joining the prosecution-fold to render his testimony before the trial. Court. Learned counsel for the appellant took many hours to argue a 'controversial' point, touching the testimony of Mohabbat Hussain P.W.B. He was an unfortunate soul. He died due to ailment when his examination had been "partly" recorded and that too, at a stage, when his disease was transmitting alarming signals about the mortality , fast approaching him. There is an irresistible aspect of the evidence of Mohabbat Hussain P.W.8 which reflects on the trial conducting qualities of the learned Addl: Sessions Judge, seized with the trial of the accused as, he did not show the required degree of sense, courage and confidence, while granting countless and on most of the occasions uncalled for adjournments to the defence. The learned trial Court behaved so badly while repeatedly acceding to the requests of the defence for seeking adjournments, 36 in number only in respect of the witnesses of occlar -account, that it, at the best, can be termed as distressing and disgusting. On a couple of occasions i,e, on 21-6-2003 and 17-4-2004 Mohabbat Hussain (P.W.8) appeared at trial in 'a miserable state of health and trial Court despite noticing that his cond ition was serious, wilted under the pressure of the defence and injudiciously adjourned the proceedings, in a mindless manner , despite a vocal protest by the other side. Unending chain of, adjournments finally resulted into the death of the enervating witness on 24-7-2004, but earlier to it, for almost every bit of his examination-in-chief, he had been grilled by the defence. It appears from the record that with a little bit show of common sense and mental-agility , the testimony of P.W.8 should have been 'completed' as there existe d no viable reason to adjourn the proceedings gratuitously . The adjournments sought for by the defence on many occasions, when complete set of eye-witnesses including Mohabbat Hussain (P.W.8), was present before the trial Court, looked certainly a part of their clever campaign not to let Mohabbat Hussain (P.W.8) be examined and on the other hand, the prosecution asserted vociferously , almost on each date of hearing, for his Immediate examination, keeping in view , his ever worsening. Disease. There cannot be two opinions about it that an examination-in-chief of a witness, not followed by cross- examination, for any reason, cannot, be considered an admissible piece of evidence and incomplete statement of such a witness cannot be given any weight but in the instant case, the situation is hugely different as examination-in-chief of the deceasedP .W. Had been recorded on 21-11-2002 and he stood cross-examined almost in complete terms by the defence, in two years time, before he died on 24-7-2004. It appears from the proceedings, recorded by the trial Court for the said day that there was every probability that the statement of P.W.8 could have been completed, who, despite being in a delicate condition, had taken rigors to appear before the trial Court to render his evidence. Even if it is believed that the proceedings had been adjourned by the trial Court on 17-4-2004 at the request of learned defence counsel for remaining Cross-examination on the said P.W. It cannot be said that the evidence rendered by him was a thrown-away material, or that it could not be taken into consideration. As discussed above, the defence sought 36 adjournments spanning over a period of about two years (from 21-11-2002 to 24-7-2004) which shows a poor state of affairs and non-serious attitude of the trial Court. The P.W. In question himself and his counsel had been constantly raising voice and concerns about the ever deteriorating condition of the incumbent prosecution witness, who, despite, the death gazing into his eyes bravely faced the situation and did not lose the heart at any stage and made sure that his statement was recorded by the trial Court. Almost 95% of the adjournments, as noted above had been granted by the trial Court, when there was hardly any occasion for it to do so. The defence cannot raise the plea at this stage nor
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the case law, relied upon by it, give any strength to their version that the statement of P.W.8 should be rejected because of incompletion' of the cross-examination by the defence. 16. The examination-in-chief of P.W.8 was recorded on 21-11-2002 which was partly cross-examined by the defence on 28-2-2004 and even on that day, learned trial Court was constrained to observe that he "appeared in a very precarious condition being sick and with the consent of learned counsel for the defence he has been provided chair when he made statement in the court". Mohabbat Hussain P.W.8 despite frailty of health was determined to get his statement completed on 28-2-2004 which could not be done, again due to the non- cooperation of the defence. He for the last time in his life, appeared before the trial Court on 17-4-2004 and faced cross-examination confidently and his statement, from all angles, appeared to have been completed, when learned trial Court again showed an unenviable weakness by adjourning the proceedings at the request of the leaned defence counsel who, due to the 'death' of his friend's wife refused to continue doing his duty. The request for adjournment, on the said…
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