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Petitioner: ABID HUSSAIN SHAH and anothers VS Respondent: THE STATE and others
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Sardar Muhammad Nawaz Khan, Iftikhar Hussain Butt Title: ABID HUSSAIN SHAH and anothers vs THE STATE and others Case No.: Criminal Appeals Nos.10 and 13 of 1997 Date of Judgment:1999-05-31 Reported As: 1999 YLR 1879 Result: Order accordingly
Judgment ORDER ' IFTIKHAR HUSSAIN BUTT, J.-- The abovementioned two appeals have arisen out of an order of District Criminal Court, Mirpur, passed on March 24, 1997 whereby the appellants Abid Hussain Shah and Raza Hussain Shah were convicted and awarded sentence of life imprisonment for 25 years each, for setting aside the same and acquittal of the appellants, whereas the other appeal has been preferred by Waris Hussain Shah appellant complainant for enhancement of sentence of life imprisonment to the sentence of Qisas or death and against the accused Tariq Shah and Wazir Hussain Shah for their conviction against acquittal. Therefore, both the appeals are disposed of by this single order. 2. The prosecution story as mentioned in the F.I.R. Is as under:-- Waris Hussain Shah complainant lodged a report on January 31, 1984 at 7-30 p.m. At Police Station Dudyal stating therein that Qasim Shah deceased arranged his marriage with Mst. Shahnaz Bi d/o Bashir Hussain Shah and his Nikah was also celebrated with her one month before. Abid Hussain Shah appellant wanted to get marry Mst. Shahnaz Bi with his brother Jaffar Hussain Shah but he could not succeed. Because of the reason Abid Hussain Shah, Raza Hussain Shah and Tariq Shah became enemies of Qasim Shah. These persons hatched a conspiracy to kill his brother when he and Kabir Shah were coming on a motorcycle after the close of the public meeting of President of Azad Jammu and Kashmir. His 'brother Syed Qasim Hussain Shah and Abdul Razzaq were going to their houses on the other motorcycle via Dudyal. When they reached the downward road at Gala Bahari at 4-00 p.m., his brother Syed Qasim Hussain Shah and Abdul Razzaq were going ahead and close to him, that Abid Hussain Shah, Raza Shah and Tariq Shah after blocking the road were standing armed with guns with the criminal intention to kill his brother. They raised a Lalkara simultaneously and said, "Qasim
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Hussain Shah cannot escape his life today". While saying so the first round was fired from a single- barrel .12 bore gun by Abid Hussain Shah at his brother Qasim Shah which hit both of his arms. His brother Qasim Hussain Shah and Abdul Razzaq got down from the motorcycle and his brother Qasim Hussain Shah started running whereupon the second shot was fired by Raza Shah alias Pola Shah by the .12 bore single-barrel loaded gun at his brother which hit his brother at his legs. The third fire was shot by Abid Shah once again by his loaded gun at his brother which also hit his legs. His brother fell down. Tariq Shah who had a .12 bore Carbine in his hand fired one shot. Abdul Razzaq, he and Kabir Hussain Shah raised an alarm whereupon Tariq Shah hit Abdul Razzaq at his right shoulder with the butt of the carbine and got hold of Abdul Razzaq. All of them raised a Lalkara upon him and Kabir Shah. He and Kabir Shah fled away from the place of occurrence and saved their lives. The whole occurrence was caused by the blessings of Wazir Hussain Shah alias Baboo Shah. He has left his injured brother Syed Qasim Hussain Shah in the hospital. Action may be taken on this report. On this report a case was registered under section 307/341/109 of Penal Code read with section 14/15 of Azad Jammu and Kashmir, Islamic Penal Laws Act, 1974 (hereinafter to be referred as I.P.L.). Because of the dangerous position of the injured he was sent to District Headquarter Hospital, Mirpur but he succumbed to his injuries on the way to the hospital. At this the offence under section 5 of I.P.L. Was added. After usual investigation a challan under sections 307, 341, 109 and 34 of Penal Code read with 5/15, I.P.L. Was presented before District Criminal Court, Mirpur on 28-2-1984. The statements of the accused under section 242 of Cr.P.C. Were recorded on 3-1-1985 but the accused denied their guilt. At trial the prosecution examined as many as 19 witnesses and the defence examined none. The trial Court after recording the evidence and hearing the arguments of the learned counsel for the parties passed the impugned order on 24-3- 1997, which has been challenged by the appellants through two separate appeals and is subject- matter of this judgment. 3. Muhammad Azam Khan, the learned counsel for the appellants vehemently argued that the dying declaration Exh.PJ/3 is verbatim copy of First Information Report which cannot be relied upon. He also argued that F.I.R. Was lodged after delay of three hours and thirty minutes. He further submitted that it is a case of unseen occurrence and the independent witnesses were withheld while inimical witnesses were produced against the appellants. He maintained that no recovery was made at the spot and recovery memos. Were also not prepared at the spot. According to him the site plan Exh.PK/1 negates the occurrence. It was also argued by the learned counsel for the complainant that medico-legal report Exh.P0 and post-mortem report do not corroborate the prosecution story. He pointed out that the prosecution witnesses do not corroborate each other and major contradictions are present in the evidence which materially effect the prosecution case. He further agitated that no dying declaration was recorded and the dying declaration Exh.PJ is a forged one. He maintained that according to the prosecution story the place of occurrence has been stated the road which is not the actual place of occurrence. He finally submitted that cumulative effect of the oral as well as documentary evidence is that the prosecution story is not reliable and the trial Court recorded its judgment on surmises and conjectures which cannot be up held. He also contended that section 382(b) of Cr.P.C. Is a mandatory provision but the trial Court did not consider this fact and recorded the life imprisonment up to 25 years. However, the occurrence took place in the year 1984 when the life imprisonment was provided up to 14 years which was later on enhanced up to 25 years through an amendment of section 55 of Azad Penal Code, 1860 on 12-6-1994, which could not be given retrospective effect. In support of his contentions the learned counsel for the appellants referred the following case-law. (i)PLD 1953 Federal Court 223. (ii)PLD 1963 Supreme Court 17. (iii)PLD 1963 Supreme Court 40.
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(iv)PLD 1969 Supreme Court 599. (v)1969 PCr.LJ 397. (vi)PLD 1970 Supreme Court 406. (vii)1972 PCr.LJ 567. (viii)PLD 1973 Karachi 643. (ix)PLD 1984 AJ&K Shariat Court 2. (x)1986 SCMR 1906. (xi) 1987 PCr.LJ 1769. (xii)PLD 1990 Shariat Court AJ&K 3. (xiii)1993 SCMR 417. (xiv)1993 SCMR 1602. (xv) 1994 SCMR 6. 4. While replying the arguments of the leaned counsel for the appellants, Mr. Abdul Majeed Mallick, the learned counsel for the complainant strenuously contended that the prosecution has proved its case beyond any reasonable doubt. Besides the ocular evidence of Warts Hussain Shah (P.W.1) and Kabir Hussain Shah (P.W.2), the dying declaration of Qasim Shah deceased also corroborates the prosecution version. He further argued that the prosecution has also produced medico-legal report, post-mortem report and recovery of two .12 bore guns, a carbine, crime empties, recovery of blood-stained clothes of the deceased and the blood-stained clay. He maintained that the evidence of the motive has also been produced. It was argued by the learned counsel for the complainant that the relationship of the P.Ws. Is admitted but they are not inimical with the accused. In this respect the defence did not suggest any enmity between the parties. He pointed that when the Nikah of complainant Waris Shah was celebrated with Mst. Shahnaz Bi then prosecution was not inimical with the appellants Abid Hussain Shah and others rather the accused were angry with the complainant and his brothers. He also submitted that the defence has admitted the presence of the accused and the P.Ws. On the spot. He maintained that the prosecution witnesses were found Adil in purgation. While controverting the objections about dying declaration the learned counsel for the complainant argued that the description of dying declaration is almost different from First Information Report and the witnesses of dying declaration Abdul Malik (P.W.4) and Raja Muhammad Asif (P.W.5) are neither related to the complainant nor inimical to the defence. He supported the recovery evidence and submitted that the place of occurrence is a public road. He frankly admitted that the prosecution could not establish an overt- act about Wazir Shah but the case of Tariq Shah/accused is almost different because he was present on the scene of occurrence with a deadly weapon. He maintained that if the prosecution would have falsely implicated Tariq Shah then the proper person to be implicated was Jaffar Shah. He argued that for the application of section 34, A.P.C. The infliction of an injury is not necessary rather the accused making an abetment is equally viable for the occurrence. He criticized the impugned judgment to the extent that when trial Court relied upon the prosecution evidence as true then instead of life imprisonment the sentence of Qisas or death would have been pronounced. According to him no mitigating circumstances were shown by the Trial Court for not pronouncing the death sentence. Finally, he submitted that the appeal may be accepted and sentence of life imprisonment awarded to respondents 1 and 2, be enhanced to the sentence of Qisas and the order of acquittal of respondent No,3 be set aside and he also may be convicted on the charge of murder and ordinary sentence of Qisas/death may also be awarded to him. In support of his arguments he relied upon the following authorities:-- (i) 1974 PCr.LJ 543. (ii)1981 PCr.LJ 199. (iii)1983 PCr.LJ 898.
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(iv)PLD 1983 SC 27. (v)PLD 1984 SC (AJ&K) 20. (vi)1984 PCr.LJ 1071. (vii)PLD 1993 SC 895. 5.Mr. Muhammad Mushtaq Ch., the learned Additional Advocate-General owned and supported the arguments of the learned counsel for the complainant. He further submitted that a young man has been brutally murderecrand prosecution has proved its case beyond reasonable doubt, therefore, the sentence of Qisas/death may be awarded to the appellants Abid Hussain Shah and others. 6. I have given my due considerations to the above contentions of the learned counsel for the parties in the light of the facts and circumstances of the case and the law applicable to it. The prosecution has produced four types of evidence to prove its case:-- (i) Ocular evidence. (ii) Dying declaration of the deceased. (iii) Medical evidence. (iv) Motive and other confirmatory evidence. ' First of all we would like to deal with the ocular evidence. In this respect, the prosecution produced Waris Hussain Shah (P.W.1), who deposed that he, Qasim Shah (deceased), Kabir Hussain Shah (P.W.2), and Abdul Razzaq (P.W.3) were coming from Dudyal after participating a public meeting of President of Azad Jammu and Kashmir and when they reached Gala-Bahari at about 4-00 or 4-30 p.m., he saw Abid Hussain Shah, Raza Hussain Shah and Tariq Shah accused at the left bank of the road, who were armed with deadly weapons. All of them raised a Lalkara and stopped the motorcycle of Qasim Shah. Meanwhile, Abid Shah fired a shot with his gun which hit upon both the arms of Qasim Shah who started running away. At this Abid Shah and Raza Shah chased him and when they reached near Qasim Shah, Raza Shah also fired a shot which hit upon both the legs of Qasim Shah and after that Abid Shah fired another shot which also hit upon both the legs of Qasim Shah, resultantly, Qasim Shah fell down. 7. Kabir Hussain Shah (P.W.2) also corroborated the statement of Waris Hussain Shah (P.W.1) and deposed that after participating the public meeting of President of AJ&K, he with Qasim Shah (deceased), Waris Shah (P.W.1) and Abdul Razzaq (P.W.3) were coming back to village Daggar on motorcycles. The deceased was driving the motorcycle himself which was stopped by Abid Shah in Gala-Bahari at about 4-00 or 4-30 p.m. All the accused were armed with .12 bore guns and Carbine, who raised a Lalkara. At this, Abid Shah fired a shot which hit upon both the arms of Qasim Shah who left the motorcycle and tried to run away towards Bahari but Raza Hussain Shah and Abid Hussain Shah chased him and when they reached near by Qasim Shah, Raza Shah also fired a shot upon the deceased which hit upon his legs and Abid Shah again fired another shot which hit the legs of Qasim Shah who fell down. 8. The learned counsel for the appellants/accused Abid Hussain Shah and Raza Shah, contended that independent witnesses were withheld and both the interested witnesses namely Waris Hussain Shah (P.W.1) and Kabir Hussain Shah (P.W.2) were pioduced but the learned counsel for the complainant while controverting the argument submitted that the relationship of the deceased with prosecution witnesses is admitted but they are not inimical with the prosecution. It is on the record that Waris Hussain Shah (P.W.1) is real brother of Qasim Shah deceased and Kabir Hussain Shah (P.W.2) is real cousin of the deceased, but defence failed to prove any enmity of the prosecution witnesses with the accused. It is quite evident from the evidence that after Nikah ceremony of Waris Hussain Shah (P.W.1) and Mst. Shahnaz Bi (P.W.7) no enmity remained between the prosecution and the appellants/accused, rather appellants became angry and inimical towards Qasim Hussain Shah (deceased) and Waris Hussain Shah (P.W.1), because Abid Hussain
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Shah failed to get married his real brother Jaffar Hussain Shah with Mst. Shahnaz Bi. Thus, no interest or enmity is present on the record to falsely implicate the appellants/accused in the case or to substitute anyone else except the real culprits. Therefore, the evidence of eye-witnesses is reliable and could not be brushed away of being related to the deceased. The general principle cannot be applied to the truthfulness of the witnesses that if a witness is not interested or inimical he will speak truth and the Courts will always rely upon him. Similarly, if a witness is related to the deceased or inimical with the accused he cannot be taken as a liar. Therefore, the real yardstick is a deposition of the witness which he deposes before the Court, if a witness is a natural one and his presence is proved he can be relied upon even though he is closely related to the prosecution or inimical to the accused. The changing factors of the society cannot be ignored when the independent witnesses do not come forward to depose against the accused.. Therefore, mere relationship of prosecution witnesses and absence of independent witnesses cannot lead to an inference that they are not witnesses of truth. The degree of enmity is by itself a very important factor as to whether a witness be relied upon or not. It is a question of fact which can be determined from case to case. In this respect, reference can be made to Mehrban v. The State (1974 PCr.LJ 543 (AJ&K)), wherein their lordships enunciated the following principle:- "-Credibility in witness-box--Primary yardstick for determining reliability or unreliability of a witness---Witness's being interested in sense of being related to victim or inimical in sense of her husband or brother being not on good terms with accused---Does not necessarily made witness liar. ' Just as a witness's not being interested or inimical, does not necessarily mean that he was a witness of truth making it incumbent upon the Court to rely upon him, similarly his being interested in the sense that he happens to be a relation of the victim or inimical in the sense that her husband or brother was not on good terms with the accused, should not necessarily lead to the inference that she or he must not be speaking the truth. The golden rule is that credibility in the witness-box is the primary yardstick for determining the reliability or unreliability of a witness." 9. The similar view was approved by the Supreme Court of Azad Jammu and Kashmir dealing with case of Muhammad Malik v. The State (1981 PCr.LJ 199 (SC AJ&K)) which reads as under:-- "S.302---Murder---Ocular evidence-Corroboration---Mere relationship of eye-witnesses with deceased and their animosity with accused---Held, not sufficient to discredit them if their evidence otherwise inspires confidence---Corroboration generally insisted upon for satisfaction of Court when certain infirmities crop up in statements of relative and inimical witnesses--- Statements of eye-witnesses found to be free from infirmities and supported by medical evidence, recovery of crime empties and abscondence of accused immediately after occurrence---Held, such evidence does not need further corroboration---Conviction and death sentence awarded by trial Court and maintained by High Court upheld." 10. A perusal of the above-stated authorities make it crystal clear that mere A relationship of the P. Ws. With the complainant or a deceased do not disentitle them to be a witness of truth. In this respect, the learned counsel for the appellants/accused has also relied upon PLD 1963 SC 40. In this case, all the three witnesses and deceased were closely related and also inimical to the accused. The deceased, Thiraj, was a man of thoroughly bad character who had been prosecuted for murder, was convicted in a dacoity case and had been a suspect in a number of other murder cases, thus, possibility of his having been killed at night by some unknown enemies could not be ruled out. In another case Sikandar v. The State (PLD 1963 SC 17), natural witnesses were not produced by the prosecution and chance witnesses, who were having background of enmity with accused, were produced. One of the witnesses also made. a false denial of relationship. Therefore, the evidence of such witnesses was not relied upon. In case of Abdul Hakeem v. The State (PLD 1990 Sh.0 (AJ&K) 3), the evidence was not relied upon because despite of close relation long-drawn
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enmity admittedly existed, who were engaged in civil and criminal litigations and ocular evidence was contradicted by very important confirmatory evidence. 11. The learned counsel for the appellants pointed out some discrepancies in the testimony of eye- witnesses, but these discrepancies are of very minor type and do not affect the main case of the prosecution. The learned counsel for the appellants submitted that Waris Shah (P.W.1) stated in the F.I.R. That Tariq Shah respondent/accused aimed upon him with a Carbine, but before the Court, he deposed that Tariq Shah shot a fire upon.Him with the Carbine. I can't agree with this contention, because F.I.R. Discloses that it was stated by complainant that Tariq Shah shot a fire with Carbine. The difference between the assertions in F.I.R. And the testimony of Waris Shah is up to this extent that Waris Shah (P.W.1) did not state this fact in F.I.R. As to whether Tariq Shah fired upon him with Carbine, but in his statement before the Court he deposed that Tariq Shah fired upon him which did not hit him. This type of a minor discrepancy that Waris Hussain Shah (P.W.1) failed to state in F.I.R. That Tariq Shah fired upon him does not make Waris Shah an unreliable witness. It is admitted principle of law that the correct legal position would be to accept the correct part of the evidence and reject the incorrect. In this respect, reference can be made to Abdul Khalique v. The State (1983 PCr.LJ 898 (SC AJ&K) wherein it was held as under:-- "S. 302--- Murder--- Evidence--- Witness---First informant and one witness shifting their stand from one disclosed in F.I.R.---Statements as a whole to be carefully appraised in such situation, and after shifting evidence, correct part of same to be accepted and incorrect part rejected-- Whole statements cannot thrown away just because they are found to be incorrect on one or some points---Court, in such a situation, should be at its .Guard and examine evidence with utmost care and caution." 12. Similar view was explained by the learned Judges in Muhammad Hanif v. The State (PLD 1993 SC 895), which reads as under:-- "---S. 302/34---Appreciation of evidence--Evidence should not be considered in isolation but whole of it should be taken into consideration---Guilt of accused has to be determined on the totality of legal evidence on record." ' Our this view also gets support from a case reported as Misri v. The State (1998 PCr.LJ 116). 13. The learned counsel for the appellants also challenged the statement of Waris Hussain Shah (P.W.1) at this score that if the real brother of Waris Hussain Shah (P.W.1) was injured and he was present itt the spot with a motorcycle then why he did not leave for town to hire a vehicle and why he did not carry his brother on motorcycle and his mere presence on the spot without any struggle to save the life of his brother proves that he was not present at the spot. According to our view, this argument cannot be accepted because it has been proved on the record that both the arms and legs of the deceased were broken by three fires which were made from a very close range. Therefore, it was impossible for the complainant to carry his injured brother on the motorcycle and according to the facts and circumstances of the case, it was not possible for him to leave his injured brother over there. Thus, as soon as he came down from the hill, reached on the spot and after some time found a wagon and he took his brother straightaway to the hospital. 14. The learned counsel for the appellants has also criticized the testimony of Kabir Shah (P.W.2) while inviting our attention towards this statement of the witness where he deposed that Qasim Shah deceased died in Dudyal Hospital. This may be a slip of tongue because it has been amply explained in cross-examination on page 97 of the trial Court file that Qasim Shah deceased was taken to D.H.Q., Mirpur when doctor told them that Qasim Shah has died. Thus, this argument' of the learned counsel for the appellants has no substance. 15. The learned counsel for the appellants further pointed out that Kabir Hussain Shah (P.W.2) stated before Court that after half an hour of the occurrence he with Waris Hussain Shah (P.W.1) came down from the hills and when they reached near Qasim Shah, after 10 to 15 minutes a Wagon
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came over there. But according to the statement of Waris Hussain Shah (P.W.1) Muhammad Hussain reached at the spot after one and half or two hours. The close perusal of both the statements of abovementioned P.Ws. Make it very much clear that there is no contradiction on this point and Waris Shah (P.W.1) has categorically testified at the back page of the page 87 of the trial Court file that after one and half or two hours of the "occurrence" Muhammad Hussain reached at the spot with his wagon. Thus, Kabir Hussain Shah (P.W.2) speaks about the time when they came down from the hills and reached at the scene of occurrence. He also stated in clear words that wagon reached on the spot at about 5-30 p.m. Thus, the difference of some minutes in calculation of time between P.Ws. Cannot be described as a material contradiction, especially when the witnesses were also found Adil in Tazkia. 16. It will not be out of place to mention here that if the minor discrepancies are found in the statements of the P.Ws. These speak of their truthfulness and also proves that they were not tutored to speak parrot's like. 17. At this stage, it will also be appropriate to state that F.I.R. Was promptly lodged and no such delay which is fatal to the prosecution case could be established. The occurrence took place at 4- 00 p.m. And F.I.R. Was lodged at 7-30 p.m. The place of occurrence is situated at a distance of four and half miles from the police station. It has been proved on the record that after firing shots upon the deceased the accused also raised Lalkara upon the complainant and P.Ws. And one of the accused Tariq Shah threatened them and kept the P.Ws. At bay at Carbine point. Therefore, at that time the fleeing away of the P.Ws. From the scene of occurrence and after some time coming back at the spot is quite natural. The P.Ws. Have also deposed that the deceased was severely injured. Thus, it was impossible for the complainant and Kabir Hussain Shah (P.W.2) to take away the deceased on a motorcycle. It was but natural that as soon as they found a wagon, they took away the deceased straightaway to the hospital. After that the complainant went to bazar and managed to prepare with F.I.R. Which was written by Abdul Jabar in a hotel and then it was lodged at Police Station. All these facts and circumstances coupled with…
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