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Petitioner: MUHAMMAD RAMZAN VS Respondent: THE STATE
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Muhammad Riaz Akhtar Chaudhary Title: MUHAMMAD RAMZAN vs THE STATE Case No.: Criminal Appeals Nos.24 and Criminal Reference, No,3 of 1995 Date of Judgment:1996-01-08 Reported As: 1996 P Cr. L J 1076 Result: Sentence reduced.
Judgment ORDER ' Both the aforesaid appeal and the reference pertain to the judgment of the District Criminal Court, Kotli, dated 31-12-1994, whereby the sentence of Qisas was awarded to the appellant. Through the appeal, the appellant has sought the annulment of the judgment of the District Criminal Court, Kotli, whereby the sentence of Qisas was awarded to him, whereas a reference has been made for the confirmation of the sentence of Qisas. As both pertain to the same case and judgment, therefore, both shall be disposed of through this single judgment. 2. The succinct facts forming the background of the instant appeal and the reference are that on 8-3-1991, a case under section 5 of the Islami Tazeerati Qawanin Nafaz Act, 1974, was registered against the appellant at Police Station Khui Ratta. Briefly stated the prosecution case as unfolded in the F.I.R. Is that on 7-3-1991, Muhammad Hanif (now deceased) was going towards Pariy Bazar for bringing sweet on the occasion of birth of his second child. When he reached near Mathy-Jand Primary School at 12-30 p.m., he met Muhammad Shabir son of Muhammad Sadiq. He started talking with him, meanwhile Muhatimad Ramzan came there armed with a hatchet. He inflicted the injury from the front side of hatchet on the head of Muhammad Hanif. Muhammad Hanif fell down, upon which Muhammad Ramzan inflicted the other injury from the backside of the hatchet on the left temporal region. On the noise of Muhammad Shabbir, Muhammad Saddique son of Shah Muhammad reached on the place of occurrence, upon which Muhammad Ramzan ran away along with the hatchet from the place of occurrence. The father of Muhammad Ramzan, Muhammad Hussain came there and after seeing Muhammad Hanif in an injured condition ran away from the place of occurrence. On the information of Muhammad Saddique, the complainant, Muhammad Ilyas and Shabir son of Karim also reached on the place of occurrence. They took
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Muhammad Hanif to Pariy Dispensary. He was referred to Mirpur Hospital. He succumbed to the injuries in the Mirpur Hospital. The cause of occurrence was that two or three months prior to the occurrence, Muhammad Hanif brought some branches of tree from the land of uncle of Muhammad Ramzan namely Muhammad Bashir. Muhammad Ramzan objected, upon which Muhammad Hanif gave a beating to Muhammad Ramzan. 3. After the registration of the case, the police conducted the investigation. On the conclusion of investigation the police forwarded the appellant to District Criminal Court, Kotli for facing the trial in the aforesaid offence. After the trial, the District Criminal Court, Kotli found the appellant guilty and awarded him the sentence of Qisas. Now the appellant has impugned this judgment of District Criminal Court, Kotli. 4. Mr. Abdul Majeed Mallick, the learned counsel for the appellant strenuously argued that the occurrence took place on 7-3-1991 at 12-30 p.m., while the F.I.R. Was lodged on 8-3-1991, so in this way there is delay of about 20 hours in the F.I.R. He further maintained that the police station was only at the distance of 24 miles from the place of occurrence and the transport was easily available on this road. He submitted that this is an afterthought F.I.R. It casts a serious doubt on the genuineness of the story put forward by the prosecution. It was next maintained by the learned counsel for the appellant, that after the occurrence, the injured person was brought to Mirpur Hospital. While Akalghar Police Station was in their way. Apart from this, the complainant was capable to inform the incharge of Police Station Mirpur regarding the occurrence, but there is no explanation that why the complainant remained silent for such a period. It was next contended by the learned counsel for the appellant that in the F.I.R. Only one witness of occurrence namely Muhammad Shabir was nominated. It was further stated in the F.I.R. That on the noise of Muhammad Shabbir, Muhammad Saddique reached on the place of occurrence. On the reaching of Muhammad Saddique, Muhammad Ramzan ran away from the place of occurrence. On the information of Muhammad Saddique, complainant Muhammad Zaman along with Muhammad Ilyas and Shabir reached on the place of occurrence. Muhammad Saddique did not appear as a witness nor he stated that he informed the complainant about the occurrence. It was next maintained by the learned counsel for the appellant that certain improvements have been made, which makes the case of the prosecution doubtful. While emphasizing on this point he submitted that neither Khadam Hussain, nor Baker Ali have been cited as eye-witnesses in the F.I.R. If they would have been eye-witnesses then naturally they would have been cited in the F.I.R., so no reliance can be placed on the evidence of Baker Ali and Khadam Hussain, nor reliance can be placed on the F.I.R. Because it is stated in the F.I.R. That the occurrence was narrated to the complainant by Muhammad Saddique and Muhammad Sadie never stated as such. It was further argued by the learned counsel for the appellant that another improvement was made by Muhammad Zaman witness in his statement, that Khadam Hussain told him about the occurrence. If Khadam Hussain would have told him about the occurrence then he would have stated as such in the F.I.R. This improvement cast a serious doubt on the story put forward by the prosecution. It was next maintained by the learned counsel for the appellant that according to the complainant and Muhammad Shabir, the first injury was inflicted from the front side of the hatchet and the second injury from the backside of the hatchet, while no injury with sharp-edged weapon was found on the person of deceased by the doctor. This state of fact lends support to the version that no one witnessed the occurrence. It was next maintained by the learned counsel for the appellant that in the site plan no place was shown, where Khadam Hussain was grazing his goats. If he would have been grazing his goats near the place of occurrence then the place should have been shown in the map. But there is nothing like such in site plan. Khadam Hussain has been stalled later . On as a witness, so no reliance can be placed on the statement of Khadam Hussain. It was further contended by the learned counsel for the appellant that Khadam Hussain in his statement stated
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that Muhammad Hanif was lying on the ground from where he tried to pick him up, but he could not pick him up. Shabir made an effort for providing water for drinking on the ground, whereas Muhammad Shabir stated that Bashir picked him up and kept the head of deceased in his lap and made an effort for providing water to drink. This contradiction reveals that both of them were not present on the place of occurrence. It was next contended by the learned counsel for the appellant that according to Nazam Hussain witness of the recovery of the hatchet, the hatchet was given by the appellant to police. While according to Muhammad Younas the hatchet was given by the father of the accused-appellant. This contradiction reveals that no hatchet was recovered at the instance of the accused-appellant. It was argued by the learned counsel for the appellant that this is an unseen occurrence. Muhammad Shabir and Khadam Hussain have been shown as chance witnesses. The Court must be cautious, while relying on the statements of chance witnesses. He referred PLD 1964 Kar. 428, PLD 1963 SC 17 and PLD 1970 Kar. 300. He further maintained that the evidence of the doctor is inconsistent to the version of the prosecution. The entire case of the prosecution is based on meagre, scant and desultory evidence; rather the entire evidence of the prosecution is agglomeration of contradictions. Therefore, no reliance can be placed on such an evidence. It was alternatively argued by the learned counsel for the appellant that the accused-appellant is a young boy of 18 years of old. Even according to the story of the prosecution he did not come from home with the intention to commit the occurrence. He took hatchet from Khadam Hussain for inflicting injury on the head of Muhammad Hanif deceased, neither he was sitting in the way nor he was aware of the fact that Muhammad Hanif deceased will pass from there. Therefore, it was not the case of extreme penalty. 5. While controverting the arguments. Of the learned counsel for the appellant, the learned counsel for the complainant Mr. Abdul Baseer Qureshi, contended that the appellant committed murder of a young man of 22 years old, who was going towards Bazar for bringing sweet on the occasion of the birth of his second child. The accused-appellant committed bestial act of murder of a young man and engraved indelible feeling of sorrow on the widow and young sons of the deceased. He submitted that the case of the prosecution is based on clinching evidence. While emphasizing on this point he submitted that Muhammad Shabir, Khadam Hussain and Baker Ali are the eye- witnesses and there is no contradiction among these witnesses. There is complete unison among these witnesses. It was next maintained by the learned counsel for the complainant that no doubt the Court should be more cautious in accepting the testimony of chance witness, but Muhammad Shabir, Khadam Hussain and Baker Ali do not come within the ambit of chance witnesses. Shabir and Baker were students of the school and they used to go to school by this way, where the occurrence took place and their presence on the way was quite natural. ' Therefore, they did not come within the ambit of chance witnesses. He further submitted that no suggestion was put to these witnesses by the defense that the place of occurrence is not a way. Therefore, it is an admitted fact that the place of the occurrence was the way of school which goes from the school to the houses of both the witnesses. It was further contended by the learned counsel for the complainant that no enmity was suggested to all the three and other prosecution witnesses. They were having no enmity with the appellant. Therefore, their evidence could not be discarded and disbelieved. It was further contended by the learned counsel for the complainant that although there was delay of 20 hours in the F.I.R., but when the complainant who was the uncle of the deceased found Muhammad Hanif (now deceased) in the injured condition, then firstly he instead of proceeding towards the police station rushed towards hospital for saving the life of Muhammad Hanif which is quite natural. Therefore, this delay will not confer any benefit to the appellant. He further submitted that the evidence of the eye-witnesses is corroborated from the medical report and the blood-stained hatchet was also recovered at the instance of the appellant. Sardar Muhammad Saleem Khan, S.H.O. Deposed before the Court that the hatchet was recovered
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at the instance of appellant, but he was not cross-examined. Therefore, the recovery of the hatchet is an admitted one. He further submitted that when the witnesses were having no enmity with the appellant then why they would have falsely implicated him. It was next contended by the learned counsel for the complainant that the normal penalty in case of -murder is death sentence and the lower Court has rightly awarded the death sentence to the appellant. The judgment of the lower Court is based on sound and cogent reasoning and warrant no interference. 6. I have heard the learned counsel for the parties and perused the relevant record. 7. In a criminal case, the burden lies on the prosecution to prove the case beyond reasonable doubt. It is well-celebrated principle of the appreciation of the evidence, that while appreciating the evidence, the Court has to sift the grain from the chaff and if, after such appreciation, the Court reaches on the conclusion that the offence is established against the accused, only then, the punishment can be awarded to the accused. In the instant case, the case of prosecution is based on:-- (i) The evidence of three eye-witnesses; (ii) Evidence of recovery of hatchet; and (iii) The evidence of Dr. Muhammad Bashir, C.M.O., D.H.Q. Hospital, Mirpur and on the other circumstantial evidence. 8. The question which requires determination in the instant case is whether the case is proved by the evidence of three eye-witnesses. The version narrated by the aforesaid three eye-witnesses is corroborated from the evidence of doctor and the witnesses of the recovery of the hatchet. Apart from this, whether the version adapted by the complainant also finds corroboration from the other circumstantial evidence or not? 9. As the contention of the learned counsel for the appellant is that there is delay of about 20 hours in the F.I.R. And no explanation of such delay is given in the F.I.R. The perusal of the record shows that according to the prosecution, the occurrence took place on 7-3-1991, at 12-30 p.m. And the F.I.R. Was lodged on the next day i,e,, on 8-31991 at 5 a.m., so, in this way, there was delay of about 17 hours in the F.I.R. There is no explanation of such a delay in the F.I.R. It is pertinent to note that the complainant was not an eye-witness and he was the real uncle of the deceased Muhammad Hanif. When he reached on the place of occurrence, he found Muhammad Hanif (now deceased), in an injured condition. It seems that he firstly, instead of proceeding towards the police station, preferred to rush towards the hospital for saving the life of the victim. At the relevant time, he was more worried about the life of the deceased than the initiating of proceedings against the accused. It was quite natural. Such an attitude can be expected from any rational man of prudence. He immediately rushed towards Mirpur Hospital. In Mirpur Hospital, when the victim succumbed to the injuries, then, he lodged the F.I.R. At the Police Station Khui Ratta, so, this delay does not seem to be intentional one. It also cannot be ignored that when the complainant took Muhammad Hanif injured to Chowk Sahaban Dispensary, then Abdul Ghafoor told him that the patient is in a serious condition, so, he was referred to Mirpur Hospital, therefore, the complainant, instead of proceeding towards Khui Ratta Police Station, which was far away from Mirpur proceeded towards Mirpur where better facilities for medical treatment were available, as such, the delay in question was quite natural. Simply on the basis of the delay of the F.I.R., it cannot be said that the story put forward by the complainant is not genuine one, unless some fabrication or exaggeration is suggested or found. Neither as such was suggested to the complainant nor, found in the F.I.R. 10. As the next contention of the learned counsel for the appellant is concerned that Akalgarh Police Station was in their way and they did not inform the in charge of the Police Station of Aligarh nor he made any report at Mirpur Police Station. It has no substance because at that time, as stated above, the complainant was worried about the life of the victim. He was not much interested for
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initiating proceeding against the accused but he was more interested in saving the life of the victim which was quite obvious. Therefore, he could not lodge the report at the aforesaid police stations. 11. As the further contention of the learned counsel for the appellant is concerned that in the F.I.R. It is stated that Muhammad Saddique reached on the place of occurrence, and he informed the complainant about the occurrence, but he did not appear as a witness, therefore, the evidence of the complainant has no value in the eye of law.'1 agree with the contention of the learned counsel for the appellant. In F.I.R.; it is stated that on the information of Muhammad Saddique, the complainant along with Shabir and Ilyas reached the place of occurrence. According to the F.I.R., the complainant %Vas informed by Muhammad Saddique, but Muhammad Saddique did not appear as a witness. The complainant himself has not seen the occurrence nor he was present at the place of occurrence. According to the F.I.R., the occurrence was narrated to the complainant by the said Muhammad Saddique. When according to the F.I.R., the evidence of complainant Muhammad Zaman is bakd on the information of Muhammad Saddique, then it is obvious that Muhammad Saddique told about the occurrence to the complainant, when he reached on the place of occurrence. He incorporated the story in the F.I.R. On the basis of the information furnished to him by Muhammad Saddique. Therefore, the F.I.R. Was evidently hearsay and not admissible in the evidence under Article 71 of Qanun-e-Shahadat, for comprehending Article 71, I would like to reproduce it:-- "71. Oral evidence must be direct.--- Oral evidence must, in all cases whatever be direct; that is to say:-- ' If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; ' If it refers to a fact which could be heard, it mist be the evidence of a witness who says he heard it; ' If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; ' If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: ' Provided ... ' Provided also .... " The word "must" appearing in the opening part of this Article imposes a duty upon the Court to insist upon the production of direct evidence. The use of the word "must" conveys the basic intention of the Legislature. In interpretation of Statutes, the intention of the Legislature is of supreme importance. For ascertaining the intention and purpose of the Legislature one has to divert towards the words used in the Statute. A Statute is to be expounded according to intention of its maker and if the words used in the Statute are precise and unambiguous, no more is required than to expound those words in their natural and ordinary sense. The words themselves will pretend the basic intention of the Legislature. The aforesaid view finds support from the Maxwell's Interpretation of Statutes, Eleventh Edition, p.1, which reads as under:-- "A Statute is the will of the Legislature, and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to ' be expounded according to the intent of them that made it." If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature." ' The intention of the Legislature as embodied in the Statutes constitute the law thereof. It is the essence of a Statute. While interpreting the Statutes one must free the expression from any meaning or concept, which may shade, obscure or completely hide its true nature and purpose. Naturally, the legislative purpose is the reason, why the particular enactment was passed by the Legislature. The words used in Article 71 "Oral evidence must in all cases whatever be direct" are
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very simple and clear. These words indicate that the basic intention of Legislature was to rely upon the direct evidence and according to the aforesaid principle only the direct evidence was made admissible. The Court while interpreting the Statutes will keep in consideration the basic purpose of the legislation. The word "must" conveys that the basic purpose of Article 71 was to only consider the direct evidence. By using the word "must", the Legislature intended that the reliance should be placed only on the direct evidence. It is also well-celebrated principle of law that whenever, a statute or a document is to be C construed it must be construed according to the ordinary general meaning of the words used in the Statute. Another well-recognized rule of interpretation was to give plain meaning to the words and expression used in the Statute. Because the intention of the Legislature is to be ascertained from the language used in the Statutes. This principle was analyzed in Crazies on Statute Law, 7th Edn. At p.92, which reads as under:- "With regard to what is meant by the expression, the plain meaning of the words of a statute', it is necessary on all occasion to give the Legislature credit for employing those words which will express its meaning more clearly than any other words; so that if in any particular instance it can be shown that where there are two expressions which might have been used to convey a certain intention, but one of these expression will convey that intention more clearly than the other, it is proper to conclude that, if the Legislature uses that one of the two expressions which would convey the intention less clearly, it does not intend to convey that intention at all, and in that event it becomes necessary to try to discover that intention it did intend to convey." The plain and the simple meaning of the words used in Article 71 conveys that only the direct evidence is admissible and it is mandatory to rely upon the direct I evidence and indirect evidence is not admissible. ' While commenting on the hearsay evidence, N.D. Base-- in his Law of Evidence, 9th Edition stated as under:- "It seems agreed that what another has been heard to say is no evidence, because the party was not on oath, also because the party who is affected thereby had not an opportunity of cross- examining. Ken, C.J., in Coleman v. Suthwick (1) as quoted by Basu, at p.908 of his Law of Evidence (9th Edition), has summarized the rule of hearsay as follows:-- 'Why not produced S to testify what he told the defendant, instead of resorting to a by-stander who heard what he said hearsay testimony is from the very nature of it attended with all such doubts and difficulties, and it cannot clear them up. A person who relates a hearsay is not obliged to enter into any particular; to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to recover any ambiguities; he entrenches himself in the simple assertion that he was told so, and bases the entire burden on his dead or absent author ... The plaintiff by means of these species of evidence would be taken by surprise and he precluded from the benefit of cross-examination of S as to all those material points which have been suggested as necessary to throw full light on his information. ' Morin at page 692 of his Law of Evidence (1974 Edition) has, under the heading 'reasons for the exclusion of hearsay', this to say on the subject. 'The rejection of hearsay is based on its relative untrustworthiness for judicial purposes owing to (i) the irresponsibility of the original declarant, whose statements were neither on oath, nor subject to cross-examination; (ii) the depreciation of truth in the process of repetition; and (iii) the opportunities for fraud, its admission would open; to which are sometimes added; (iv) the tendency of such evidence to protract legal inquiries and (v) to encourage the substitution of weaker for stronger proofs." ' The aforesaid view lends full support to the principle enunciated in Article 71 of Qanun-e- Shahadat, to reject all the hearsay evidence to prove any fact, which in its nature is susceptible of direct evidence by a witness, who can speak from his own knowledge being under (sic) oath, and has to face the cross-examination. The crux of the above discussion is that evidence of A who
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states that it was told to him by B would only be admissible in the evidence in proof of the fact that the said statement had actually been told to him by B. But the same will be inadmissible in proof of the contents of the statement unless, B appears and states that he told such and such to 12. In the light of what has been stated above, evidence of the complainant was a hearsay evidence, it would have only been admissible if Muhammad Saddique would have appeared as a witness and stated that he narrated the whole occurrence to the complainant, but Muhammad Saddique did not appear as a witness, therefore, the F.I.R. Lodged by the complainant was not admissible as required under law. This view finds support from PLD 1964 Kar. 428. 13. As far the next contention of the learned counsel for the appellant is concerned that only one eye-witness, namely, Muhammad Shabir was nominated in the F.I.R. Neither Baker nor Khadam Hussain was cited as witness in the F.I.R. Further improvement was made, therefore, no reliance can be placed on the statements of…
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