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Petitioner: MIR AFZAL VS Respondent: THE STATE
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Iftikhar Hussain Butt Title: MIR AFZAL vs THE STATE Case No.: Criminal Appeal No,63 of 2007 Date of Judgment:2008-03-12 Reported As: 2008 P Cr. L J 881 Result: Order accordingly
JUDGMENT
JUDGMENT ' IFTIKHAR HUSSAIN BUTT, J.--- This appeal has been sent by the convict-appellant through Senior Superintendent Central Jail, Mirpur, vide his letter, dated 24-8-2007, assailing the judgment of District Criminal Court, Bhimber, dated 25-7-2007. ' Brief facts of the case are that Muhammad Zaman, complainant, filed a written F.I.R. At Police Station Choki on 31-10-2006 alleging therein that his daughter Mst. Fahmida Begum was married to Muhammad Afzal nine years ago. He further stated that on 31-10-2006 at 7-45 a.m. Muhammad Afzal fired two repeated shots of .30 bore pistol upon his daughter with the intention to kill her. One of the shots hit her under the left armpit and exited from the waist near the right armpit. She succumbed to the injuries spontaneously. The accused fled away while threatening and waving his pistol. The occurrence was also witnessed by Zulfiqar, Faisal and Mst. Nazir Begum. ' The motive behind the occurrence has been stated to be that the accused had suspicion about the character of his wife. ' On this report, a case under section 302, A.P.C. And 13/20/65, Arms Act was registered against the accused by Sohail Yousuf, S.H.O. Police Station Choki (P.W.15). ' On 31-10-2006 after arriving at the spot, Sohail Yousuf, S.-I., (P.W.15) prepared an inquest report Exh.P.L. And injury form Exh.P.H. On the same day, the blood-stained clay vide recovery memo. Exh.P.C. And two empties from the place of occurrence vide recovery memo. Exh.P.D. Were taken into possession in the presence of Raja Abdul Ghafar (P.W.7) and Raja Ajaib (P.W.9). After the post- mortem, on 31-10-2006 the blood-stained shirt, vest and trousers along with string of the deceased were taken into possession by said Sohail Yousuf (P.W.15) vide recovery memo. Exh.P.E. Testified by
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Raja Muhammad Azam (P.W.6) and Mazhar Iqbal (P.W.8). He also handed over the dead body to Zulfiqar (P.W.2) vide receipt Exh.P.N. ' The accused was apprehended on the same day and a .30 bore pistol along with a magazine having four live rounds, was taken into possession vide recovery memo. Exh.P.F. Attested by Raja Muhammad Azam (P.W.6) and Mazhar Iqbal (P.W.8). ' On 7-11-2006 said Sohail Yousuf, S.-I. Police got prepared the site plan Exh.P.I. By Jahangir Ahmad, Patwari, (P.W.10). ' In the light of the document Exh.P.O., it was reported by Director Forensic Science Laboratory, Lahore that the crime-empties were found to have been fired by a .30 bore pistol recovered from the accused. ' It was reported by Chemical Examiner vide its report Exh.P.P. That the clothes of the deceased and earth were stained with blood. ' The post-mortem of the dead body of Fehmida Begum deceased was performed on 31-10-2006 by Dr. Noshaba Fakhar-ud-Din Civil Medical Officer, Rural Health Centre Samahni (P.W.11) vide postmortem report Exh.P.G. She noticed the following injuries on the dead body of the deceased caused by fire-arm:-- (1) 2 c.m. Entrance wound under left mid axilla no tattooing or blackening seen. (2) 2.5 c.m. Exit wound just below tip of scapula on right side of thorax. ' After usual investigation, the accused was sent up for trial in the offences under section 302, A.P.C. Read with section 13/20/65, Arms Act before District Criminal Court Bhimber on 29-11-2006. The accused during his examination under section 242, Cr.P.C. Pleaded not guilty and claimed the trial. ' Muhammad Zaman, the complainant (P.W.1), Zulfiqar (P.W.2), Rahmat Ullah (P.W.5), Muhammad Azam (P.W.6), Raja Abdul Ghafar (P.W.7), Jahangir Ahmad Patwari (P. W.10), Dr. Noshaba Fakhar- udDin (P.W.11), Muhammad Riaz Constable Police (P.W.12), Muhammad Aziz Head Constable Police (P.W.13), Sheryar Sikandar A.S.P. (P.W.14) and Sohail Yousuf, S.-I./S.H.O. Police Station Choki (P. W.15) were produced in support of the prosecution case whereas Faisal Mahmood (P.W.3), Mst. Nazir Begum (P.W.4), Mazhar Iqbal (P.W.8) and Raja Ajaib Khan (P.W.9) were abandoned by the prosecution. ' After completion of the prosecution evidence purgation was done and all relevant P. Ws. Were found Adil. ' On 19-4-2007, an opportunity was provided to the accused to furnish his explanation about the evidence and other incriminating material adduced against him by the prosecution, during his examination under section 342, Cr.P.C. The accused/appellant refuted the prosecution evidence and claimed to be innocent; however, no evidence was produced in defence. ' After completion of the trial, the District Criminal Court, Bhimber awarded the sentence of 25 years' R.I. Under section 302(c), A.P.C. And one year's S.I. Under section 13 2,0/65, Arms Act to the accused. The benefit of section 382-B, Cr.P.C. Was also extended in his favour. The aforesaid judgment of the District Criminal Court, Bhimber, dated 25-7-2007 has been challenged through the instant appeal. ' Mian Sultan Mahmood, Advocate, the learned counsel for the accused-appellant, vigorously argued that the trial Court committed grave error while recording the impugned order because the prosecution miserably failed to prove its case beyond any reasonable doubt. The learned counsel further contended that the version of the State is altogether different from the version of the complainant about filing of F.I.R. The learned counsel pointed out that the evidence of eye- witnesses is also not worthy of any credence because according to Muhammad Zaman (P.W.1), Mst. Nazir Begum and Faisal were also present in the drawing room ( {{URDU TEXT}}) whereas according to the site plan both the above mentioned P. Ws. Were shown present outside of the drawing room. The learned counsel agitated that Muhammad Zaman, complainant, did not nominate Rahmat Ullah as an eye-witness at the time of lodging F.I.R. But during his statement
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before the trial Court, he deposed that at the time of occurrence Rahmat Ullah was also present along with other eyewitnesses. The learned counsel also stressed that according to the complainant when he along with the police reached in village Baroh, the dead body was lying on the floor but according to Sohail Yousuf, Investigating Officer, he found the dead body in the hospital. The learned counsel pressed into service the submission that Muhammad Zaman (P.W.1) is father of the deceased and Zulfiqar (P.W.2) is brother of the deceased; therefore, the evidence of closely related and chance witnesses cannot be relied upon without independent corroboration which is also not available in the present case. The learned counsel submitted that the material witnesses Faisal Mahmood (P.W.3) and Nazir Begum (P.W.4) were withheld by the prosecution and Rahmat Ullah (P.W.5) was produced as an eye-witness whose statement was recorded after four days of the occurrence although he was available to the Investigating Officer on the day of occurrence. The learned counsel laid great stress upon the point that recovery evidence is also not reliable and no respectable from the area has been associated with the recovery proceedings. Likewise, the injury form and inquest report is also defective and doubtful. According to him, the prosecution miserably failed to produce any cogent corroboratory evidence. The learned counsel pointed out that Muzaffar son of Rahmat Ullah was arrested by the police and when Rahmat Ullah agreed to depose against the accused as an eye-witness then his son Muzaffar was set free which makes the case of prosecution suspicious and doubtful. The learned counsel maintained that a very weak motive has been set up by the prosecution which cannot be taken into consideration because youngest son of the deceased was born a month ago and during such period illicit relations cannot be developed by a woman. The learned counsel zealously argued that the evidence about having pistol without licence has not been put to the accused during his examination under section 342, Cr.P.C. Therefore, sentence cannot be passed against the accused in the offence under section 13/20/65, Arms Act. The learned counsel faintly argued that the trial Court has relied upon vague, artificial and self-contradictory evidence of the prosecution and passed the impugned judgment without evaluating the evidence in its true perspective; therefore, is not maintainable. The learned counsel finally submitted that while extending the benefit of doubt accused-appellant may be acquitted of the charge. In support, reliance was placed upon the following case-law:-- (1) PLD 1995 SC 1, (2) 2001 SCMR 424, (3) 2003 PCr.LJ 1309, (4) 2004 SCMR 1185, (5) 2005 PCr.LJ 393 and 1689, (6) 2005 YLR 1085, (7) 2006 PCr.LJ 358. ' Khalid Yousuf, Assistant Advocate-General appearing on behalf of the State controverted the arguments raised by the learned counsel for the accused-appellant and submitted that the F.I.R. Of the case was lodged without any delay and the accused was named therein. The learned counsel argued that a specific role of repeated firing has been attributed to the accused which has been amply proved by the prosecution witnesses who were named in F.I.R. Also. The learned State counsel further contended that on basis of mere relationship the evidence of trustworthy and confidence inspiring eye-witnesses cannot be brushed aside. The learned State counsel maintained that it is always the prosecution prerogative to produce its evidence and withholding of the evidence of Faisal Mahmood and Nazir Begum, cannot adversely affect the case of prosecution because Mst. Nazir Begum being mother of the accused and Faisal Mahmood being closely related to the accused became hostile; therefore, they were abandoned by the prosecution. According to the learned State counsel, the defence did not produce the aforestated witnesses; therefore, the accused cannot derive any benefit out of it. The learned State counsel pointed out that even for the sake of arguments if the evidence of Rahmat Ullah (P.W.5) is ignored even though the evidence of two other eye-witnesses along with other corroboratory and confirmatory evidence, is sufficient to bring guilt home to the accused. The learned counsel pressed into service the submission that a clear motive has been alleged by the prosecution which
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has also been proved. The learned counsel pointed out that the accused is not only maternal- nephew of the complainant but also his son-in-law; therefore, the question of false implication does not arise. The learned State counsel after referring to the certain portions of the evidence of eye-witnesses submitted that the prosecution evidence is cogent, clear and convincing; therefore, the judgment of the trial Court which has been recorded in a legal fashion be maintained. In support of his contentions, the learned counsel cited 2001 SCMR 199 and 2001 PCr.LJ 524. ' In the light of respective contentions of the learned counsel for the parties, I have carefully examined the record, the impugned judgment and case-law cited. The prosecution case is primarily based upon the evidence of three eye-witnesses namely Muhammad Zaman (P.W.1), father of the deceased, Zulfiqar Ahmad (P.W.2), brother of the deceased and Rahmat Ullah (P.W.5), maternal-uncle of the deceased, whereas two other eye-witnesses Faisal Mahmood and Mst. Nazir Begum were abandoned by the prosecution, as allegedly turned hostile. ' Muhammad Zaman (P.W.1) deposed that on the fateful day at about 7-15 a.m. He set off from his house to join the marriage ceremony of the son of Muhammad Khan along with Zulfiqar and Rahmat Ullah P.Ws. At about 7-45 a.m. They reached near the house of accused. On hearing hue and cry, he saw that the accused fired a shot upon his daughter which hit upon her left armpit whereas second shot hit upon the wall of house. He further stated that on account of firing, his daughter fell down and died spontaneously. The occurrence was witnessed by his companiohs and also by Mst. Nazir Begum and Faisal Mahmood P.Ws. ' Zulfiqar Ahmad (PW..2) testified that he along with his father Muhammad Zaman and maternal- uncle Rahmat Ullah were proceeding towards Choki, to participate in the marriage ceremony of Muhammad Khan's son. On hearing noise, they went towards the house of accused. As soon as they reached near the door of his house, the accused inspite of forbidding by them fired a shot upon the deceased which hit upon her left armpit and exited from the right side whereas second fire hit on the wall, resultantly, his sister Fehmida begum died at the spot. ' Now, the question which requires consideration as to whether the ocular version of closely related and chance witnesses is reliable and trustworthy to bring guilt home to the accused. Let me first make it clear that a chance witness is one who has no plausible explanation for his presence near the place of occurrence and he just reached on the place of A occurrence by way of chance. A witness who gives acceptable explanation for his presence at the place of occurrence cannot be considered as a chance witness. In the instant case, it has been amply proved on the record that both the eye-witnesses were going to participate in the marriage ceremony of. Muhammad Khan's son. No doubt the statement of a chance witness should be carefully scrutinized but it does not mean that their testimony should be acted upon only if the B same is corroborated by independent evidence. In this regard, I am fortified by a case reported as Muhammad Khurshid Khan v. Muhammad Basharat and another PLD 2007 SC (AJ&K) 27, wherein it was opined at page 23 of the report as under:-- "Although it is well-settled principle of law that while appreciating the evidence of a chance witness, the Court has to be cautious and careful but at the same time it also could not be ignored that where the chance witness is otherwise absolutely independent and named in the F.I.R. And his deposition is supported by recovery of incriminating article then of course he could not be disbelieved. This view finds support from Irshad alias Shada v. The State 1971 SCMR 655." ' It transpires from the close scrutiny of the above mentioned prosecution evidence that it supports the main story of the prosecution, although it does not corroborate the site plans Exh.P.M. Prepared by Investigating Officer and Exh.P.I. Prepared by Jahangir Ahmad Patwari (P.W.10) because according to the above mentioned site plans Muhammad Zaman (P.W.1) and Zulfiqar Ahmad (P.W.2) have been shown watching the occurrence from inside the room marked as Baithik
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whereas according to their deposition they Watched the occurrence from the door of the Baithik and not from inside. ' Muhammad Faisal (P.W.3) and Nazir Begum (P.W.4) were given up by the prosecution as hostile witnesses. Mst. Nazir Begum is mother of the accused-appellant whereas Faisal Mahmood has been stated to be his close relative. ' So far as the evidence of Rahmat Ullah (P.W.5) is concerned, cannot be taken into consideration because his name neither appears in the F.I.R. As an eye-witness nor in the statements of Muhammad Zaman (P.W.1) and Zulfiqar Ahmad (P.W.2) recorded under section 161, Cr.P.C. Similarly, Investigating Officer has not pointed out his presence in the site plan Exh.P.M. As an eye-witness although according to Rahmat Ullah, he travelled with the dead body. Furthermore, his statement was recorded on 4-11-2006 after four days of the occurrence whereas it is admitted on his part that he was available to the police from the day first and it is also the prosecution's case that he along with Muhammad Zaman and Zulfiqar P.Ws. Were travelling together at the time of occurrence. Therefore, the Court below has erred while relying upon the belated deposition of Rahmat Ullah (P.W.5). It would be appropriate to refer the following judgment in such-like situation. In the case of Budho v. The State PLD 1965 (W.P.) Kar. 76, the statement of an eye-witness recorded four days after incident was ruled out of consideration. ' In another case reported as Qadir Bakhsh v. The State PLD 2002 Quetta 97, similar question came up for consideration and while endorsing the aforementioned view, it was held as under:-- "It may be observed that statements of witnesses recorded by the police at a belated stage would not be fatal but where the delay is unexplained and names of the said witnesses have been introduced at a later stage; purposely manoeuvred to implicate the accused, such delay would adversely affect the prosecution case and no explicit reliance can be placed on the testimony of such witnesses. In this regard reference is made to the following cases; (1) Asfandyar Wali v. The State PLD 1978 Pesh. 38 wherein the following observations were made:-- "In law, the police is duty bound to record the statement of a witness no sooner he appeared before them in a criminal case. It is not disputed that they were star-witnesses of the prosecution who could not be said to have been prevaricating in any matter. It is a niatter of record that their statements were recorded few days after the occurrence and thus, an adverse inference can be drawn against the prosecution that the witnesses had made their statements in line with what was suggested to them by the Investigating Agency. It may here be observed that once it comes on record that in a criminal case, the witness had appeared before the police on the first available opportunity but his statement under section 161, Cr.P.C. Was delayed, his evidence should not be given that sanctity as is generally given to the evidence of a witness whose statement had been recorded no sooner he had appeared before the police. (2) Abdul Khaliq v. The State 1996 SCMR 1553 wherein the following observations were made:-- "He admitted that all the eye-witnesses were examined at the instance of the complainant. There is no explanation furnished by the prosecution for examination of Mir Qalam after 20 days of the incident and for examination of Abdul Jabbar and Muhammad Shah after one month and three days of the incident. It is a settled position of law that late recording of 161, Cr.P.C. Statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay. ' I do not find any substance in this plea of the learned counsel for defence that the evidence of Muhammad Zaman and Zulfiqar P.Ws. Cannot be relied upon because of their relationship with the deceased. It is by now settled position of law that mere relationship or friendship with the deceased is not sufficient to discard the evidence of a witness particularly when there is no motive to falsely involve the accused. An interested witness is one who has a motive for falsely implicating an accused; therefore, relationship with the complainant or deceased will not be sufficient to discard the veracity of a witness if the evidence rings true. It is the quality of evidence which is regarded
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and not the quantity. If the conscious of the Court is satisfied that the evidence of an eyewitness is cogent, clear and confidence inspiring, it can always be relied upon without any further corroboration. The eye-witness though inter se related and also related to the deceased had no enmity so as to falsely implicate or substitute the accused, who happens to be his nephew and son-in-law; therefore, their evidence has to be relied upon.. The principle of interested and related witnesses has been examined in numerous cases and a few important therefrom are mentioned as follows:-- (1) PLD 1978 SC (AJ&K) 146, (2) PLD 1979 SC (AJ&K) 23, (3) PLD 1983 SC (AJ&K) 211, (4) 1992 SCR 249 and 294, (5) 2001 PCr.LJ 524 (6) 2007 SCR 1. ' It will be pertinent to mention here that some variations have been pointed out by the defence in inquest report Exh.P.L. And site plans Exhs.P.M./P.I. But these are not by itself sufficient to discard the ocular versions which has been proved by the trustworthy and convincing evidence of eye- witnesses along with sufficient corroboratory evidence. In this respect, Dr. Noshaba Fakhar-ud-Din (P.W.11) has fully supported the post-mortem report Exh.P.G. And she found fire-arm injury exactly on the same part of the body of the deceased whereat the ocular version alleges. The above mentioned fact clearly testifies the version of the eye-witnesses that deceased was done to death by. Firing shot as deposed by them. The prosecution version also stands corroborated by reports of Experts Exh.P.O. And Exh.P.P. ' The prosecution story is further confirmed by the recovery of clothes of the deceased, testified by Muhammad Azam Khan (P.W.6) and Sohail Yousuf S.-I./Investigating Officer (P.W.15). The statement of H Muhammad Azam Khan on the above mentioned point was not challenged in the cross- examination, thus, has been admitted by the defence. My aforesaid view finds support from a case titled Abdul Latif v. Sifarish Ali Khan 2002 SCR 288 wherein it has been held that if the statement of an eye-witness is not challenged in cross- examination, the same is considered to have been admitted by the opposite party. ' The place of occurrence and death of the deceased by fire-arm is admitted on the part of defence; therefore, this argument of the learned counsel is devoid of force that the recovery of blood-stained earth, recovery of two empties and a pistol, weapon of offence, has not been proved by the prosecution. Although Abdul Ghaffar and Muhammad Azam, the witnesses for recovery of blood-stained earth, two empties and a pistol are closely related to the deceased and they also do not belong to the locality inspite of that their evidence cannot be brushed aside because the recovery of aforesaid articles has also been endorsed by Sohail Yousuf Investigating Officer. It is admitted position of criminal law that the police witnesses are as good witnesses as any other witnesses, especially so when no enmity or motive on the part of police has been shown by defence for false involvement of the accused. 2002 SCR 108. Even otherwise the recovery evidence is merely corroborative evidence and it is not necessary that the corroboration should be from independent evidence. It is sufficient if the version of the eye-witnesses is confirmed from some evidence or any circumstance. My this view stand fortified by a case reported as Muhammad Khurshid Khan v. Muhammad Basharat and another PLD 2007 SC (AJ&K) 27. ' It may be stated that when ocular version is clear and cogent, the corroboratory or confirmatory evidence is not of much significance, in any case, it cannot outweigh the direct evidence and conviction in law can be recorded on such evidence without any corroboration 2000 PCr.LJ 1484. ' The learned counsel for the defence has emphasized that according to P.Ws. After lodging the F.I.R. By the complainant, the police arrived at the spot and took away the dead body to the hospital whereas according to the Investigating Officer the complainant himself took away the dead body to the. Hospital and thereafter he. Filed the F.I.R. At the police station. According to the learned counsel, the F.I.R. Has been fabricated and registered after due deliberations and consultations, which has lost its evidentiary value. No doubt, there is some variation in the deposition of the
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complainant about affixing his thumb-impression on the F.I.R. Similarly, according to the complainant and Zulfiqar (P.W.2), the police took away the dead body from the place of occurrence whereas according to Investigating Officer he found the dead body in the hospital. As far as the filing of F.I.R. Is concerned, in my estimation no delay in lodging F.I.R. Has been found in the present case and the statement of Investigating Officer has to be relied upon in this respect, who has performed his official duty; therefore, the official act performed in normal course of events has the presumption of truth. Furthermore, the delay in lodging F.I.R. (not found in the instant case), assumes importance when the identity of the accused is doubtful. 2000 SCR 123. In such state of affairs, the aforesaid N contradiction will not demolish the prosecution case as a whole or vitiate the trial; however, it has importance regarding the quantum of punishment. ' This contention of the learned counsel for the convict-appellant appears to be well-founded that the evidence of recovery of unlicensed arm has not been put to the accused for his explanation during his examination under section 342, Cr.P.C.; therefore, he cannot be punished under section 13/20/65, Arms Act. ' I find little force in this plea of the learned counsel for the convict-appellant that motive was not proved. The prosecution set up the motive of the offence that accused had doubt in his mind that his wife had developed illicit…
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