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Petitioner: WARIS HUSSAIN SHAH VS Respondent: ABID HUSSAIN SHAH and 3 others
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Sardar Said Muhammad Khan, Syed Manzoor Hussain Gillani Title: WARIS HUSSAIN SHAH vs ABID HUSSAIN SHAH and 3 others Case No.: Criminal Appeals Nos.16 and 18 of 1999 Date of Judgment:2000-03-31 Reported As: 2001 P Cr. L J 268 Result: Appeals dismissed
JUDGMENT
JUDGMENT ' MANZOOR HUSSAIN GILLANI, AD HOC J.--- This judgment will dispose of above captioned appeals against the judgment of the Shariat Court, dated 31-5-1999. Criminal Appeal No,16 of 1999 is filed by the complainant against the acquitted-accused persons for their conviction and for enhancement of sentence against the convicted-accused, while Criminal Appeal No,18 of 1999 is filed by the convicts for their acquittal. 2. The facts leading to the trial of the accused persons by the District Criminal Court, Mirpur, are that Waris Hussain Shah appellant/complainant, filed a report at Police Station Dadyal which was registered as F.I.R. No,3 of 1984 on 31-1-1984. He alleged that on the day of occurrence i.e, 31-1-1984, he (Waris Hussain Shah), Kabir Hussain Shah, Manzoor Hussain Shah, Qasim Hussain Shah and Abdul Razzaq Khan were going to their homes via Dadyal on a motorcycle after attending the public meeting of the President of Azad Jammu and Kashmir. Waris Hussain Shah, Kabir Hussain Shah and Manzoor Hussain Shah were on one motorcycle following Qasim Shah and Abdul Razzaq who were on the other. When they reached at road going down to Gala Bahari at 4-00 p.m. Abid Hussain Shah, Raza Shah and Tariq Shah, who were armed with the loaded short guns, with the criminal intention to kill his brother blocked the road and raised a Lalkara at Qasim Shah that he cannot escape alive and with it, Abid Hussain Shah fired first shot with the .12 bore gun at Qasim Shah which hit his both arms. Dismounting from the motorcycle, Qasim Shah started running away when second shot was fired by Raza Shah alias Pola Shah which hit his borther's legs. The third shot was fired by Abid Hussain Shah which also hit the legs of Qasim Shah on which he fell down. Tariq Shah who had a .12 bore carbine in his hand also fired a shot. When they i.e, Waris Shah, Abdul Razzaq and Kabir Shah raised an alarm, Tariq Shah caught hold Abdul Razzaq and hit him with the
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butt of carbine at his right shoulder. The accused raised a Lalkara at Waris Shah and Kabir Shah who saved their lives by running away. It was alleged that the occurrence took place with the blessing of Wazir Hussain Shah alias Baboo Shah. Qasim Shah was taken to hospital and a report was lodged at police station on which a case under sections 307/341/109, P.C. And 14/15, Islamic Penal Laws Enforcement Act (I.P.L.) was registered Qasim Shah in view of his precarious condition was referred to District Headquarters Hospital, Mirpur, but he sccumbed to his injuries on which offence under section 5, I.P.L. Was also added. 3. The motive of the offence is stated that Qasim Shah deceased arranged the marriage of Waris Shah with Shahnaz Bi, daughter of Bashir Hussain Shah, and Nikah was also solemnised; Abid Hussain Shah also wanted her to be married to his brother Jaffar Hussain Shah which could not take place, on account of which the accused became enemies of deceased Qasim Shah and used to hatch plans to kill him. 4. The accused persons were sent for trial to the District Criminal Court, Mirpur, in offences under sections 5/15, I.P.L. Read with sections 307/341/109 and 34, Penal Code. The District Criminal Court vide its judgment, dated 24-3-1997 sentenced Abid Hussain Shah and Raza Hussain Shah to life imprisonment, while Tariq Shah and Wazir Hussain Shah alias Baboo Shah were acquitted. The convicted-accused persons as well as the complainant filed appeals against the judgment before the Shariat Court, which felt pleased to dismiss the appeal filed by the complainant. The sentence of life imprisonment awarded by the District Criminal Court was maintained but modified to be as 14 years instead of 25 years on the appeal filed by the accused persons, vide its judgment, dated 31-5-1999, impugned before this Court. 5. The learned counsel appearing for the accused, Ch. Muhammad Azam Khan, arguing the case contended that the prosecution story is full of contradictions and the statements of none of the prosecution witnesses is corroborated by the documentary evidence. His contention is that the ocular evidence relating to the injury caused to the deceased is negated by the report of the doctor in the post-mortem report. The learned Advocate pointed out that as per the site plan the shot is shown to have been fired from the left side while the doctor's report shows it having been fired from the right side.. In the circumstances the learned counsel argued that the case becomes doubtful and the benefit of doubt goes to the accused. He placed reliance upon Ashiq Hussain v. The State 1993 SCM R 417, Muhammad Ilyas v. The State 1993 SCM R 1602 and Muhammad Buta and 3 others v. The State 1972 PCr.LJ 567. Similarly, the learned counsel contended that the recovery memos. Prepared by the police are fictitious. Explaining this point, the learned counsel contended that the occurrence took place on 31st of January at evening while the recovery was made on 1st of February and the place being unattended and open to the public, the recovery attributed against the accused is not reliable. He also stated that the recoveries are alleged to have been made on 1st of February while the explanation in the site plan shows that it has been prepared on 2nd of February. The further contention of the learned Advocate is that the weapons of offence i.e, .12 bore gun which is attributed to have been recovered from Abid Shah is made on 19th of February and that too, from an unattended place and no explanation is given of it. Similarly, the carbine attributed to Tariq with the butt of which Abdul Razzaq is hurt, is also recovered from unattended place. And Abdul Razzaq is not produced as witness. The learned counsel, on the basis of these instances, contended that all the recoveries having been made from the place which was open to the general public cannot be relied upon. He placed reliance on Maqsood Ahmad and another v. State 1994 SCM R 6. The learned counsel attacking the authenticity of the dying declaration Exh.P.J. Contended that this is a forged document and not reliable at all as the recital of the same reveals that it is verbatim reproduction of the F.I.R., and no independent witness has testified the same. According to him the witnesses who have testified the dying declaration are linked with the complainant, related in business affairs and are related to the persons inimical to the accused. The
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learned counsel citing Muhammad Latif and another v. Muhammad Hussain and 9 others PLD 1970 SC 406 contended that this dying declaration could not be relied upon. He also contended that the alleged dying declaration is testified by the witnesses whose statements are not reliable. He placed reliance on State v. Mst. Gulab Jan 1987 PCr.LJ 1761, Muhammad Khalil v. The State 1992 SCR 249 and Abrar Hussain Shah v. The State 1992 SCR 294 in this behalf. The learned counsel further argued that Abdul Razzaq and Muhammad Hussain who were cited by the prosecution itself as eyewitnesses have not been produced. The learned counsel, on the quantum of sentence, contended that assuming any offence having been proved against the accused, benefit under section 382-B, Cr.P.C. Has not been extended to the accused of which they are entitled as matter of right. He contended that the accused have undergone detention for six long years during trial and they were in the police custody even before that, which period ought to have been taken into consideration and computed towards the imprisonment. He placed reliance on Mian Talib Hussain v. State 1992 SCR 120, Qadir and another v. The State PLD 1991 SC 1065 and Ramzan and others v. The State PLD 1991 SC 11. As regards the acquitted accused persons he contended that there is no evidence against them and two Courts below have concurrently held so, hence their acquittal cannot be disturbed. 6. The learned Advocate representing the complainant, Mr. Abdul Majid Mallick, contended that a young man of 30 years of age who was member of Local Council has been murdered and the occurrence is witnessed and proved before the Court by two independent eye-witnesses. The presence of Kabir Shah and Waris Shah at the place of occurrence is admitted in view of the suggestions made in the cross-examination to the eye-witnesses. The eye-witnesses account is supported by the dying declaration of the deceased which is made in the presence of responsible persons of the society i.e, Doctor and S.H.O. Besides two respectable citizens, hence this was a valid document which in any case had to be relied upon. The learned counsel for the complainant contended that the weapons of offence and empties recovered from the place of occurrence are testified by the Expert which lend unequivocal support to the prosecution case. The learned counsel controverting the arguments of the learned counsel for the defence that the recoveries have been made from an open place and that these have been made a day after the occurrence, contended that a constable had been deputed on duty at the place of occurrence immediately after the occurrence and one Raja Asif has deposed that he himself saw a constable on duty at the place of occurrence where he had gone to collect the motorcycle. Similarly, the argument that the recoveries have not been made from the spot is also negated. According to the learned Advocate by the statement of Abdul Malik and Raja Muhammad Asif, who deposed that the recoveries have been made from, and the site plan prepared, on the spot. The learned counsel further contended that the motive of the accused is very much clear and admitted that they had enmity against the deceased on account of the marriage of Waris Shah with Shahnaz Bi, and this enmity led to the murder of the deceased while there was no other animosity between the parties before that. He also contended that all the witnesses produced are independent, neutral and are not closely related to complainant, except the eye-witness who are the witnesses of occurrence. The discrepancy pointed out by the learned Advocate regarding the direction of firing stands explained, as the same was the mistake of the doctor regarding the entry and exit wounds; as mistake as to which was the entry wound and which was exit wound. He placed reliance upon Shaukat v. The State 1992 SCR 156 on this account and contended that it does not affect the prosecution case. The learned counsel also contended that Tariq Shah belongs to Lalamusa and not this village. However, having relationship in the village, he had come on the spot, and this lends support to the fact that he having acted in the occurrence, has been rightly accused of the offences; his presence on the spot and recovery of weapon of offence from him are sufficient proof of his being involved in this case. He placed reliance on Muhammad Akbar and 2 others v. The
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State PLD 1991 SC 923 in this behalf. The learned counsel further contended that the evidence against all the accused being common hence Tariq acquitted-accused, is also liable to the severest imprisonment in view of section 34 of the Penal Code. The learned counsel contended that in view of the unequivocal proof led by the prosecution and believed by the Court culminating in the life imprisonment of the accused, warranted death penalty to accused and not life imprisonment as awarded by the Courts below. 7. Ch. Muhammad Mushtaq, the Additional Advocate-General, supported the contentions of the learned counsel for the complainant. 8. After hearing the learned Advocates of the parties we have gone through the judgment of the Courts below, documents placed on the file of the trial Court, the statements of the witnesses, recovery memos. Etc. And case-law cited in support of their contentions by the learned Advocate. 9. The prosecution case rests upon the ocular evidence, dying declaration, medical evidence and incriminating recoveries made at the instance of the accused persons and from the place of occurrence. The prosecution has produced two eye-witnesses of the occurrence i.e, Wari Hussain Shah and Kabir Hussain Shah both of whom, alongwith Manzoor Hussain Shah were on the motorcycle following another motorcycle on which Qsim Shah and Abdul Razzaq were riding. Both the eye-witnesses have stated unambiguously first hand account of the occurrence before the trial Court which has been accepted by the trial Court as well as the first appellate Court. They have stated that they were coming from Dadyal after participating in the public meeting of the President of Azad Jammu and Kashmir and were fired by Abid Hussain Shah, Raza Shah and Tariq Shah who were armed with deadly weapons, raised Lalkara, stopped their motorcycles and Abid Shah fired first shot with a shot gun which hit Qasim Shah on arms, when he started running away after dismounting from the motorcycle, Abid Shah and Raza Shah chased him, on which Raza Shah also fired a shot which hit Qasim Shah on the legs and Abid Shah fired another shot which also hit Qasim Shah on the legs. The presence of these two witnesses at the place of occurrence is natural as both of them were coming after attending a public meeting. Their witnessing the occurrence from a close distance in the open light is also proved, hence there remains no doubt that the eye- witnesses have proved the occurrence and narrated the same in the manner they had seen. Their presence on spot is admitted by the trend of suggestions made in the cross-examination. The arguments of the learned counsel for the accused-appellants that the statements of the witnesses are full of contradictions and that the ocular account of their statements is negated by the report of doctor in the post-mortem report do not find support from the record. There is no contradiction as far as the statements of the witnesses regarding the occurrence are concerned. Contradiction means negation of version of the prosecution case. Mere discrepancies in the details of the facts do not amount to contradiction. No contradictory version of each others statements is pointed out nor is it found from the perusal of their statements. The arguments that the place wherefrom the shot is fired is shown in the site plan as the left, while the doctor deposed it as having been fired from the right side is not in itself a material contradiction for the reason that the doctor has stated that the deceased is hit by the bullets fired from the gun which has been recovered at the instance of the accused. The wounds were found on the body of the deceased. The slip of tongue by the doctor in narrating left or right does not wash away the substantive part of his report. Moreover, it is posture of the victim which determines the infliction of wounds. It may be in a particular shape if a person is standing and it may altogether be in a different shape if the victim is running or is placed in any other position. The doctor appears to have inadvertently declared the entry wound as exit. The injuries Nos.1 and 2 are inflicted upon the deceased when he was running away after getting hit by first fire which is shown as injury No,3. Thus, in a situation where the victim was running and the assailants were chasing him the bullet could be fired from either direction. The doctor in his statement has fully supported the prosecution version regarding the injuries, particularly the
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direction of injury No,3. Similarly, the statement that the death occurred because of the injuries, is also categorically proved by the doctor. The other argument of the learned Advocate for the accused-appellants that the recovery memos. Are fictitious is equally untenable. The argument that occurrence took place on 31st of January, while the recovery was made on 1st of February and site plan is shown to have been prepared on 2nd February does not cast any doubt upon the prosecution case, for the reasons that the recovery of the fire empties was made on 1st of February which is the day following 31st of January. The place of occurrence was being watched by a constable who had been deputed on the place of occurrence. It hardly matters when the site plan was prepared by the police; what matters is the inspection of the site and the identification of the place by the witnesses who are stated to be eye-witnesses, the location of the accused as well as the victim shown by the eye-witnesses, and witnessing the recoveries of the empties from the spot. The recovery witnesses Abdul Malik and Raja Muhammad Asif have categorically stated that the Investigating Officer prepared the site plan while making the recovery. They are independent witnesses not related to any side, hence the recoveries cannot be said to be doubtful merely for the reason that the site plan has been prepared on 2nd of February. It is possible that the rough sketch might have been prepared on the 1st February, while the details of the site plan placed before the Court is dated 2nd February. The manner of recovery and the recoveries made are testified by the independent witnesses. The recovery of .12 bore gun from Abid Hussain Shah was made on 19-12-1984 after their being arrested on 18-2-1984, while recovery from Raza Shah was made on 26-12-1984. Recovery memo. In the case of Abid Hussain Shah is testified by Raja Muhammad Asif and Ibrar Haider, Sub-Inspector of Police while that of Raza Shah by Muhammad Ayub and Muhammad Fazal and Ibrar Haider has also witnessed the said recovery. No reason is given nor does it smack out from the statements or the cross-examination that the witnesses were telling lie and that they are interested or related to the complainant or inimical to the deceased. The fire empties are testified by the Ballistic Expert that they have been fired from the recovered guns. It may also be placed on record that gun recovered from Abid Hussain Shah is a licensed gun. In view of this factual aspect of the case, it cannot be said that there is any doubt as far as the recoveries are concerned. The argument of the learned counsel that the recoveries have been made from the place which is unattended and open to public and thus, doubtful is equally not tenable and this alone does not cast any doubt on the prosecution case. When the recoveries are made at the instance of the accused testified by eyewitnesses, and the fire-arms and the empties are also testified by Ballistic Expert to be corresponding to each other, there is no reason to doubt about the recoveries or its adverse affect upon the prosecution case. The authorities referred to by the learned counsel for the accused, i.e, Ashiq Hussain v. State 1993 SCM R 417, Muhammad Ilyas and another v. The State 1993 SCM R 1602, Muhammad Buta and 3 others v. The State 1972 PCr.LJ 567 and Masood Ahmad and another v. State 1994 SCM R 6 where benefit of doubt was extended to the accused persons in murder cases, do not apply in view of the circumstances of the present case. ' In Ashiq Hussain v. The State 1993 SCM R 417, the benefit of doubt was extended to the accused for the reason that he was admitted in hospital at the time of occurrence and not at the place of occurrence and this version was supported by the doctor. Moreover, in this case the witnesses appearing for the prosecution stated to have identified the accused in the bulb lights. 'In Muhammad Ilyas and another v. The State 1993 SCM R 1602 the benefit of doubt was extended for the reason that there was a doubt as to whether the eye-witnesses could have seen the incident and their version was not supported by any corroboratory evidence on account of which the prosecution evidence was found doubtful. 'In Muhammad Buta and 3 others v. The State 1972 PCr.LJ 567, the benefit of doubt was extended for the reason that the incident took place closer to the village at day time, near to the Circular Road
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and the village path but nobody from the local vicinity supported the prosecution. Moreover, eye- witnesses did not support the prosecution version by appearing as witnesses before the Court. Similarly, in Masood Ahmad and another v. State 1994 SCM R 6, the benefit of doubt was extended on account of the doubtful recoveries which were made from the graveyard and one from the house key of which was with the police. 10. The witnesses testifying the recoveries in the present case are natural, independent and neutral, casting no doubt upon the recoveries. It is also borne out from the record that the place of occurrence and surrounding area was not inhabited on account of which the Investigating Agency took due care in watching and protecting the place of occurrence till the recoveries were made on the next day and the witnesses taken to witness the recoveries have deposed every detail thereof beyond any shadow of doubt. 11. Moreover, the recovery memos. Are only the supplementary documentary evidence placed on the record, these are not sole evidence produced on behalf of the prosecution. These are the supportive documents and evidence in support of the ocular account. When the ocular account of the eye-witnesses is read with the documents placed on record by the prosecution i.e, the recovery memos., site plan, etc. Every version being supportive of each other, inspires confidence and appears reliable in every respect which are sufficient proof of involvement of accused in the commission of offence. 12. The contention of the learned Advocate for the accused-appellants that the dying declaration Exh.P.J. Is a forged document and is not eligible for the reason that it is verbatim recital of the F.I.R. And that no independent witness has testified the same is equally not tenable. His contention that the witnesses testifying the dying declaration are not trustworthy and are interested is also not borne out from the record. 13. As stated above the prosecution case is proved by ocular evidence. The recoveries and the dying declaration are only supportive documents of ocular evidence. Irrespective of the fact that the ocular evidence is clear and unambiguous, the dying declaration itself is so clear, reliable, authentic and confidence inspiring that its evidentiary value cannot be doubted. The dying declaration is recorded by Ibrar Haider, Sub-Inspector of Police in the presence of the doctor who issued a certificate Exh.P.A. Certifying that injured is able to get his statement recorded. It is testified by two neutral and independent witnesses Abdul Malik and Raja Muhammad Asif whose statements have gone uncontradicted, in spite of the lengthy cross-examination, thus, there is no reason not to believe this document which supports the prosecution version. The contention of the learned counsel for the accused-appellants that the dying declaration is verbatim reproduction of the F.I.R. Is not borne out from the record when the dying declaration and F.I.R. Are read in jaxta position to each other. Most of the details given in the dying declaration do not find place in the F.I.R. And it, therefore, seems natural that the deceased deposed that which he himself saw, not what was reported to the police by first informant. The other ground of attack against the dying declaration by the learned counsel for the accused is that it has been recorded in the presence of the eye-witnesses, thus, is not reliable as the eye-witnesses had influence upon the deceased, is also falsified from the record for the reason that none of the eye-witnesses have testified the dying declaration and no evidence as argued by the learned Advocate, is brought on record. Assuming so, it does not affect the statement as it is. The argument of the learned Advocate that the witnesses who have testified the dying declaration are linked with the complainant in the sense that their relatives have business affairs with them is a far fetched attack which bears no support from record or the statements of the testifying witnesses. Nothing has been brought on record to discredit the veracity of the witnesses, neither is it proved that the witnesses have any enmity against the accused or that they were interested in having the dying declaration recorded against the accused.
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14. The dying declaration, as stated earlier, is only a corroborative piece of evidence which supports the ocular testimony given by the eye-witnesses. No hard and fast rule can be laid down about the standard of the dying declaration. Its veracity, authenticity and reliability varies from case to case. In some cases the dying declaration alone may be considered sufficient evidence against the accused, while in some, it cannot at all be relied upon, unless it is…
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