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Petitioner: QURBAN HUSSAIN alias ASHIQ VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Rehmat Hussain Jaffery, Nasir-ul-Mulk Title: QURBAN HUSSAIN alias ASHIQ vs THE STATE Case No.: Criminal Appeal No, 176 of 2008 Date of Judgment:2010-05-13 Reported As: 2010 SCMR 1592 Result: Order accordingly
JUDGMENT
JUDGMENT ' NASIR-UL-MULK, J.---The appellant, Qurban Hussain, and his two co-accused, Arshad Mahmood and Allah Ditta, were tried by the Additional Sessions Judge, Rawalpindi, under sections 302/324/452/34, P.P.C. For the murder by firing of Abdul Qayyum and for lurking house trespass at around midnight between 28th February and 1st March, 1998. The trial Court acquitted Allah Ditta and convicted Qurban Hussain and Arshad Mahmood, sentencing them respectively to death and imprisonment for life. On appeal, the Lahore High Court by the impugned judgment allowed the appeal of Arshad Mahmood and acquitted him, while maintaining the conviction and sentences of Qurban Hussain. He was granted leave to appeal to reappraise the entire evidence. 2. The incident took place in the house of Mst. Ayesha, complainant, whose husband, Muhammad Riaz, was, at the relevant time, away in Saudi Arabia. Abdul Qayyum (deceased) brother of Muhammad Riaz, owned and lived in the house adjacent to that of his brother. The report of the incident was made by Mst. Ayesha, who alleged that at around midnight she woke up to answer the call of nature. That when she opened door and switched on the light she noticed three persons standing outside. Two of them were armed with pistols, who pushed her into the room and beat up. That on her hue and cry, her two daughters, Mst. Shazia and Mst. Sumera Riaz woke up. That one of the accused attempted to abduct Mst. Shazia, who resisted and during the scuffle muffle from the face of one of the accused droped. He was recognized as Qurban Hussain, who at that moment declared that he had come to abduct Mst. Shazia to avenge the divorce of his aunt by Abdul Qayyum. On the alarm raised by the ladies, Abdul Qayyum, who was sleeping in his house next door, was attracted to the scene. While the accused were running away in the street, Abdul
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Qayyum caught hold of one of them, upon which Qurban Hussain fired a shot, hitting Abdul Qayyum who fell clown. The accused then decamped from the scene. 3. Abdul Qayyum later succumbed to his injury. Upon examining his injury the doctor found one entry and a corresponding exit firearm wound on the neck and three abrasions on the forehead and left cheek caused by a blunt weapon. Mst. Ayesha and Mst. Shazia Sultana were also medically examined. They had suffered lacerated wounds and abrasion on different parts of their bodies. 4. During the pendency of the trial, the complainant, Mst. Ayesha, passed away. The mainstay of the prosecution case remained the ocular testimony of Mst. Shazia, Mst. Sumera Riaz and Mst. Shagufta, wife of deceased, Abdul Qayyum. In his statement recorded under section 342, Cr.P.C. The appellant completely denied his involvement in the incident. He however alleged that Mst. Shazia had an affair with someone (not named) who visited her on the fateful night. That Abdul Qayyum surprised them and during a row that person fired and killed Abdul Qayyum. 5. The learned counsel appearing for the appellant submitted that the so called eyewitnesses could not have identified the appellant at night when there was no source of light at the place of murder. That the deceased was fired at in the street outside his house and the spot was not visible from the house of the complainant. That Mst. Shagufta, wife of the deceased, did not name the appellant in the F.I.R. That the motive was farfetched and if true, the target should have been Abdul Qayyum or his daughter rather than the members of the household of his brother. The learned counsel maintained that had the accused been identified at the time of incident there was no need for the investigating agency to procure the services of sniffer dogs to trace the accused. He pointed out that the first Investigating Officer had admitted that he found the appellant innocent. 6. Responding to the above contentions, the learned counsel representing the complainant submitted that Lal Hussain, the Investigating Officer, who declared the appellant innocent had carried out dishonest investigation and that is why on the application of the complainant, the investigation was transferred to Muhammad Siddique, DSP. The new investigation officer, upon his investigation found the appellant involved in the murder. He next argued that the injuries sustained by the two eyewitnesses were sufficient to establish that they had seen the accused from a close distance. That no suggestion whatsoever was made by the defence as to why the eyewitnesses would falsely implicate the appellant. That the deceased received firearm injuries in the same incident after the accused tried to escape from the scene. That the houses of the deceased and that of the complainant are adjacent to each other with only low wall of loosely placed bricks in between. 7. There were four eyewitnesses of the incident. Mst. Shahzia, complainant of the case, died before the trial. Mst. Shagufta, wife of the deceased, Abdul Qayyum, testified. Her testimony was believed by the Trial Court but discarded by the High Court on the ground that in her statement under section 161, Cr.P.C. She had not claimed that she identified any of the accused. This leaves us with the ocular testimony of the two sisters, Mst. Shazia Sultana (P.W.6) and Mst. Sumera Riaz (P.W.7). It may be recalled that Mst. Ayesha as well as Mst. Shazia Sultana, were injured during the incident. The doctor found lacerated wound on the fore-head, bruises on left fore-arm and abrasion on left knee of Mst. Ayesha Begum. Mst. Shazia Sultana, suffered abrasion on her left cheek and according to the doctor report, she complained of pain in the back. Apart from the fatal firearm wound on the neck, the doctor also found abrasion on the left cheek and nose of the deceased, Abdul Qayyum. All this goes to show that the deceased as well as the two ladies had engaged in some scuffle with the accused. On account of injures suffered by Mst. Shazia Sultana, her witnessing the incident cannot be doubted. Although Mst. Sumera Riaz did not suffer any injury B but being inmate of the same house, her presence in the house at about midnight is not open to doubt. It was but natural for her to be woken up by the commotion on account of the presence of the accused and their manhandling of the other two ladies. The prosecution case that Mst. Ayesha was manhandled and
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Mst. Shazia Sultana and the deceased had put up resistance stands corroborated by the injuries received by them. 8. An argument was raised by the defence that it was not possible for the eyewitnesses to have seen the firing at the deceased, as the spot of the murder was not visible from their house. True that the murder was committed in the street just outside the house of the deceased, however, the house of the witnesses and that of the deceased are adjacent to one-another. Both the eyewitnesses have stated that they had come out of their house into the street when Abdul Qayyum had tried get hold of one of the accused and shot by the appellant. 9. The motive set up by the prosecution that the appellant was trying to abduct Mst. Shazia as retaliation to the divorce by Abdul Qayyum of his aunt 12 years before the occurrence, may be not realistic. This was the motive, which the eyewitnesses stated was declared by the appellant when he attempted to abduct Mst. Shazia. The motive may not have been the taking of revenge by the appellant. Whatever was in the back of the mind of the appellant, it does appear from the prosecution case that he was there to abduct Mst. Shazia. This is evident from the injuries sustained by her and her mother. 10. For the foregoing reasons, we do not find any justification to interfere with the finding of guilt arrived at by the two Courts. Nor do we find any mitigating circumstances for modifying the appellant's sentence. The appeal is, therefore, dismissed. ' RAHMAT HUSSAIN JAFFERI, J.---I have had the privilege of going through the judgment authored by my respected learned brother (Nasir-ul-Mulk, J). With profound respect, I am unable to agree with the conclusions arrived at in the judgment. 2. The facts of the case and the relevant material have already been mentioned in the judgment, therefore, there is no need to repeat the same. 3. It is a well settled principle of law that onus rests upon the prosecution to prove the case beyond a reasonable doubt and it never shifts upon the accused, except in the cases falling under Article 121 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as 'the Order') and during the entire proceedings the accused is presumed to be innocent. Both the expressions viz. "proof beyond a reasonable doubt" and "presumption of innocence" are to be read together as a unit. Reference is invited to a recent judgment passed by this Court in the case titled as "Muhammad Asghar Nannah and Miraj Khalid alias Khalid v. The State (Criminal Appeal No, 44 of 2006)" decided on 11-5-2010. In the present case, the appellant did not take any plea falling within the circumstances bringing his case within any of the General Exceptions in the Pakistan Penal Code or any other law as provided under Article 121 of the Order. It is also well settled that the prosecution cannot take benefit of the weaknesses of the defence, as the prosecution is duty bound to prove the case on the evidence produced before the Court beyond a reasonable doubt. Reference is invited to Ashiq Hussain v. State (1993 SCM R 417), Noorul Haq v. State (1992 SCM R 1451) and Muhammad Fazlul Karim v. State (PLD 1964 Supreme Court 792). 4. Keeping in view the above well settled principles, it is important to note that the incident, in the present case, is divided into two parts. First part of the incident occurred at 12-30 midnight of 1-3- 1998 in the house of the complainant Mst. Ayesha Begum with the allegation that when she woke up in order to go to wash room; she put on light of the room where her two daughters namely Mst. Shazia Sultana (P.W.6) and Mst. Sumera Riaz (P.W.7) were sleeping. As soon as, she opened the door of the room, two persons namely Arshad Mehmood and Allah Ditta (acquitted accused), and the appellant Qurban Hussain, entered into the room. Both the daughters of the complainant woke up. The appellant, who was wearing chadar caught hold of the injured P.W. Mst. Shazia Sultana, therefore, the latter intervened, but she was given blows with butts of the pistols. One, of the acquitted accused caught hold of the injured PW Mst. Sumera Riaz. On the hue and cry, the deceased Abdul Qayyum, who was brother of the injured complainant Mst. Ayesha Begum and
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residing in the adjoining house reached there and challenged the culprits, whereafter they started running. 5. The second incident took place in the street outside the door of the house of the deceased Abdul Qayyum, As soon as, the culprits came out from the house of the complainant while running, the deceased followed them and succeeded in apprehending one of the acquitted accused, whereupon the appellant fired at the deceased, which hit him and he fell down on the ground. Thereafter, the accused persons decamped. It was alleged that the incident was witnessed by the complainant, her daughters/P.Ws. 6, 7 and Mst. Shagufta Begum widow of the deceased. 6. From the above facts, it is clear that both the incidents took place within few minutes. After the incident, the deceased, in injured condition, was taken to the Hospital and he reached there at about 1.30 am. The Doctor examined the deceased and found that the injuries on his person were about three hours old. The complainant and her daughter P.Ws. First went to the Police Station to lodge the report and thereafter they were referred to the Hospital. They reached in the Hospital and were examined at about 1-45 am. The Medical Officer after examining both the injured P. Ws. Formed the opinion that injuries on their persons were about 12 hours old. The Doctor in the cross- examination admitted that the said injured witnesses might have received injuries on 28-2-1998 at 1-45 pm. 7. From the above position, it is manifest that the evidence of the Medical Officer has been accepted by the prosecution, as no reexamination was conducted in order to clarify the above discrepancy about the age of the injuries caused to the deceased and injured witnesses. Further the injuries on the person of the deceased were fresh, therefore, the Doctor opined that these injuries were three hours old, whereas the injuries on the persons of the injured witnesses did not appear to be fresh, as the same were noted as 12 hours old. I am conscious of the fact that the Medical Officer can give approximate time of the receipt of the injuries. Therefore, a margin of two or three hours can be extended to such evidence but it is unbelievable that Dr. Mushtaq Ahmad would be wrong in his estimate by eight or nine hours. Reference is invited to Mardan Ali v. Gulistan and others (1980 SCM R 889). Therefore, the medical evidence would prevail over the ocular evidence concerning the age of the injuries on the person. Thus, it is clear that both the incidents did not take place within few minutes of each other, which creates a reasonable doubt about the story narrated by the prosecution with regard to the first incident because the said incident took place much earlier than the second one. 8. From the evidence, two interpretations are possible, one favouring the prosecution and the other to the accused. In such situation, it is well settled that the interpretation or theory favourable to the accused is to be accepted. Reference is invited to Wali Muhammad . I Nawab and others (1984 SCMR 914), Kazi Abdul Jamil and others vv. The State (PLD 1958 SC (Pak.) 12). Even on this principle, the discrepancy in the age of injuries on the person of the deceased and two P.Ws. Can be interpreted in favour of the appellant. Therefore, such injuries cannot be taken to have been caused to the P.Ws. 6, 7 and the deceased within few minutes. 9. As regards the second incident, it is alleged that the same was witnessed by the three ladies of the first incident, namely Mst. Ayesha Begum, Mst. Sumera Riaz, Mst. Shazia Sultana and Mst. Shagufta Begum w/o the deceased. During the trial, the complainant Mst, Ayesha Begum did not appear as she died by that time as a natural death, therefore, she was not examined. However, the prosecution examined Mst. Shazia Sultana (P.W.6), Mst. Sumera Riaz (P.W.7) and Mst. Shagufta Begum (P.W.8). Mst. Shagufta Begum did not go to the house of the complainant. I have examined the evidence very carefully but did not find that any of the witnesses deposed that they also followed the culprits after they started running from the house of the complainant. The P.Ws. 6 and 7 are silent with regard to the said aspect of the case. Even otherwise, it is very unnatural in such circumstances that the ladies who had received injuries would follow the culprits because it is
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natural conduct of a culprit that after commission of the crime he would try to run away from the place of incident very quickly and so is the case here, as it was alleged that when the deceased challenged the culprits, they started running, who were followed by him. Furthermore, the incident took place outside the door of the house of the deceased. No doubt, the houses of the complainant and the deceased were adjoining to each other and separated by a wall, but the door of the house of the complainant was towards eastern side in the street, whereas the door of the house of the deceased was towards the northern side. Both the doors are in street, which was in "L" shape with an angle of 90 degree. The site plan shows the distance between both the doors as 120 feet because the scale was 1"=20'. It has also come in evidence that the witnesses could not see the place of incident from the house of the complainant. Admittedly, the night of the incident was dark. There was no source of light at the place of second incident, as the witnesses did not show the presence of any light at such place. Therefore, it is highly improbable for the witnesses to have identified the person who had caught hold of the deceased and the person who had fired at him. 10. Additionally, when the presence of light in the street has not been established through evidence, the presence of the witnesses in the street at the relevant time is also not free from doubt. The prosecution placed reliance upon the site plan (Exh.PA) showing the presence of Mst. Shazia Sultana and Mst. Sumera Riaz at the place of incident, which was about 3ft away from the place where the deceased had received injuries. I have gone through the evidence of P.W.1 Qamar-udDin, Draftsman, who deposed that he prepared the site plan on the information and pointation of the P.Ws. And the complainant. It is an admitted position that the site plan was prepared on 6-3-1998 after five days of the incident, therefore, P.W.1 had no personal knowledge about the place where the witnesses were present at the time of incident. His evidence is depending upon the evidence of the above named witnesses. The complainant was not examined, as she died. However, Mst. Shazia Sultana was examined. She did not state in her examination-in-chief that she ever gave any information or pointed out to P.W.1 about the place of her standing but in the cross-examination, she specifically admitted that she did not point out any place in the street regarding her presence when the Investigation Officer or the Draftsman inspected the spot. Mst. Surnera Riaz (P.W.7) and Mst. Shagufta Begum are completely silent on the above point in their evidence. As such, the statement of P.W.1 becomes hearsay evidence, hence it is an inadmissible piece of evidence and the same in the peculiar facts and circumstances of the present case cannot be safely relied upon. Even otherwise, site plan is a corroborative piece of evidence, which can only corroborate the statement of the witnesses but in the present case, the witnesses did not state that they ever pointed out the place of their witnessing the incident to the Investigation Officer or Draftsman. 11. Apart from the above defects in the evidence, the statements of P.Ws. 6 and 7 are contradictory to each other in respect of entering the deceased in their house at the time of incident, as according to P.W.6 the deceased entered the house from the door, whereas P.W.7 in her cross- examination stated as under:-- "Qayyum came on our noise through street. He did not enter our room. Qayyum did not enter our Havely. He was in the street. Shagufta also did not enter our house. She was with her husband in the street." ' It has not come in the evidence that the door of the house was opened, when the deceased entered the house, as per statement of P.W.6. It is usual practice that during the night time the outer door of the house is always locked from inside. The accused might have entered into the house by climbing over the boundary wall, which was about 5/6 ft. As such, when the deceased came at the main door of the house of the complainant, the door was closed from inside. Therefore, on this aspect of the case, a reasonable doubt has been created about the entering of the deceased in the house of the complainant.
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12. As regards the evidence of Mst. Shagufta Begum, widow of the deceased, her statement has been disbelieved by the High Court and by my learned brother. Furthermore, her statement is full of improvements from her earlier statement recorded by the police. However, she stated that there was bulb in the street but she did not mention the place of said bulb. However, she admitted in the cross-examination that she did not state before the police that there was bulb in the street. She also did not state that she ever pointed out said bulb to the Draftsman (P.W.1) or to the Investigation Officer, who prepared the site plans. The P.Ws. 6 and 7 also did not state that they showed the bulb to P.W.1 or to the Investigation Officer. However, P.W.1 stated that when he visited the place of incident, there was a bulb at the corner of the wall. It is to be noted that P.W.1 visited the place of incident after 5 days of the occurrence. We are not concerned what was available at the scene of incident after 5 days but we are concerned as to what was the position on the date and time of the incident. For that purpose, the evidence of P.Ws. 6, 7 and 8 is relevant. From the evidence of P.Ws. 6 and 7, it is clear that they did not state that there was bulb at the place of occurrence. However, P.W.8 deposed about the presence of the bulb but .It was an improved statement along with other statements, therefore, her evidence has been discarded by the High Court and by my learned brother in the judgment. On the above point, the evidence of Investigation Officer, who visited the place of incident, just after the incident is again most relevant, but he also did not state that he ever saw the bulb at such place or any of the P.Ws. Pointed out the bulb to him or he mentioned the presence of bulb at the place of occurrence in the site plan prepared by him. Under these circumstances, the evidence of P.W.1 about the presence of the bulb, which was noticed by him after 5 days of the occurrence is not a relevant fact. Possibility of tampering or manipulation with the evidence cannot be ruled out. P.W.8 also admitted that she did not state before the police that she could identify all the accused persons. In the cross- examination, she also admitted that before the police she stated that the appellant Qurban Hussain fired at the deceased, which hit him but when she was confronted with her statement before the police, it was found that the name of the appellant was not mentioned. From the evidence, it is clear that initially she did not identify the culprits as clear from her earlier statement but she involved the appellant and acquitted accused subsequently through her improved statement, which supports the version of the appellant that the witnesses had not identified the culprits. It is also important to note that P. W.8 is a natural witness being wife of the deceased, who could have reached the place of occurrence before the arrival of other persons, particularly, when the incident took place outside the door of her house. Her initial statement clearly establishes the fact that some unknown culprits had committed the offence. Therefore, on this score also, a reasonable doubt has been created in respect of the identity of the culprits. 13. As regards the investigation, the learned counsel for the complainant has stated that the local police did not investigate the case properly, therefore, an application was moved for transfer of the same to some other Police Officer, which was allowed. In this connection, it is pointed out that initially the investigation was conducted by SI Lal Hussain (P. W.10), who stated that the investigation was with him upto the date, when he arrested the appellant. Qurban Hussain and thereafter the investigation was transferred from him. He had also recorded the statements of the witnesses. In the cross-examination, he admitted that Mst. Shazia Sultana, Mst. Ayesha Begum and Mst. Sumera Riaz did not show him the places of their standing when the deceased Qayyum had fallen and if they had shown him such places he would have indicated such places. He also stated that he had called the dogs from the Dogs Center on 2-3-1998 viz. On the next date of the incident for tracking purpose. The dogs led towards north side but did not go towards the house of the accused. He also admitted that he wanted to join the complainant and the P.Ws. As suspected accused persons, and therefore, he had summoned the lady Police Officer. But subsequently the investigation was transferred from him and handed over to P.W.9 Nisar Ahmed on 17-4-1998. P.W.9
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stated that the investigation was taken over by the DSP, CIA and during that period he had simply recorded the supplementary statements of the eyewitnesses. The DSP, CIA Muhammad Siddique was examined as C.W.1. His evidence reveals that he inspected the place of incident and heard the complainant and the P.Ws. He directed the SHO to arrest the co-accused Arshad Mehmood and Allah Ditta (acquitted accused). With regard to the transfer of the investigation, he stated as under:-- "It is correct that the complainant party had submitted application to the DIG Rawalpindi that the local police has connived with Allah Ditta and Arshad Mehmood alias Sajid accused to whom the police took to the police station and then released them." 14. From…
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