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Petitioner: HAROON RASHEED and 6 others VS Respondent: STATE and another
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Hamid Ali Mirza, Rana Bhagwan Das Title: HAROON RASHEED and 6 others vs STATE and another Case No.: Crl. A. No, 78 of 2004 Date of Judgment:2005-05-30 Reported As: PLJ 2006 SC 137 Result: Appeal dismissed
JUDGMENT
JUDGMENT Hamid Ali Mirza, J.--This criminal appeal with leave granting order dated 24.2.2004 of this Court is directed against the judgment dated 29.4.2002 in Criminal Appeal No, 308-T of 1999 passed by learned Division Bench of the Lahore High Court, Lahore filed against judgment of conviction dated 20.12.1999 of the learned Special Judge, Suppression of Terrorist Activities, Islamabad, whereby the said appeal was dismissed so also revision Petition No, 14 of 2002, maintaining the judgment of conviction of the trial Court, whereby the appellants were convicted and sentenced for triple murder in the following terms:-- "All the seven accused convicted under Section 148 PPC and sentenced to two years R.I.. each. Convicted under Section 460/149 PPC and sentenced to imprisonment for life. Conviction under Section 302(b)/149 PPC, Haroon Rasheed, Muhammad Raees and Muhammad Hanif sentenced to death on three counts. Muhammad Nawees, Muhammad Waqar, Muhammad Wariyam and Muhammad Sarwar, however, sentenced to imprisonment for life on three counts. All the seven accused further directed to pay Rs, Seven lac in aggregate to the legal heirs of three deceased as compensation under Section 544-A Cr.P.C. or in default of payment, to suffer six months S.I. on three counts. Sentences were directed to run concurrently and they were given benefit of Section 382-B Cr.P.C. as well. 2. Leave was granted for reappraisal of the evidence whether the learned High Court has. failed to appraise the evidence according to principles laid down by this Court for safe administration of justice in criminal cases to consider the plea raised that testimony of PW-11 Niaz Akhtar and PW-12 Tahir Hussain being not confidence inspiring and unimpeachable in nature cannot be basis for
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conviction and that points raised before the learned Division Bench of the High Court were not attended to in the judgment when the above said PWs were not present at the place of occurrence at the relevant time and the motive being remote seventeen years prior to the incident and further that none from the- inmate of the house was produced as witness in the case. 3. Brief facts of the case are that. on 9.12.1997 at 2305 hours Complainant Niaz, Akhtar, PW-11, lodged report FIR No, 175 at P.S. Bhara Kahu, Islamabad -stating therein that he was a student of 9th class and residing in Dhok Chappar Dakhali Chrah. On the said date after, taking evening meal he, his maternal grandfather Muhammad Sharif, his father Hassan Akhtar, his mother Mazloom Bibi, paternal uncle Muhammad Saeed, maternal- uncle Muhammad Faris Wand maternal cousin Tahir Hussain went' to the house of Aurangzeb, their co-villager, to condole the death of his father-in-law for offering Faateha', Aurangzeb was not present in his house, and had gone to offer Isha prayer in the mosque. All the aforesaid visitors went inside his house and sat on cots in a .room and were waiting for Aurangzeb's return. There was' sufficient tube and bulb light in the house and outside in the courtyard. In the meantime at about 2000 hours suddenly Waqar accused along-with Muhammad Sarwar both armed with Hanif .30 bore pistols, Muhammad Han and Muhammad Wariyam both armed' with 7mm rifles, entered through he eastern door of the room while Haroon Rasheed and Raees accused,' both armed with Kalashinkov rifles and Muhammad Yunus armed with .44 bore rifle, entered the same room from its western door. At the exhortation of Haroom Rashid to kill Hassan Akhtar and Muhammad Saeed to teach them a lesson for the murder of Azmat Bibi, wife of Muhammad Samar accused, the other accused separated Muhammad Sharif, Mst. Mazloom Bibi, Tahir Hussain and Muhammad Faris and made them (the said victims) to stand in the Southern corner of he room. In the presence of witnesses, appellant/accused Haroon Rasheed ired a burst with Kalashnikov at Hassan Akhtar who was hit on the right ide of his neck and right hand. Muhammad Raees, accused, fired a burst at Muhammad Saeed, hitting him on the back of his shoulder. Muhammad Faris stepped, forward to rescue the two injured persons, on which Muhammad Hanif aimed his .7mm rifle straight at Muhammad Faris and fired at, him hitting him on the right. cheek. The remaining accused also started firing and when all the accused were satisfied that the father, eternal uncle and maternal uncle of the first informant had expired. They ran away to their houses while firing. The incident was allegedly committed at the instance of Raja Jamroze Khan, who had earlier not allowed the complainant party to resolve their dispute regarding some land. After usual investigation of the case the above said accused were challaned before the competent Court wherein they were read over charge who pleaded not guilty to the charged offences and prayed to be tried. The prosecution examined as many as 19 PWs and one CW. After closing of prosecution evidence, the appellants/accused were examined under Section 342 Cr.P.C. who denied the commission of alleged offence and further stated that the case has been concocted and they have been falsely implicated due to local election rivalry with Hassan Akhtar deceased, and the ocular evidence has been procured by the prosecution after persuading the witnesses for long. They denied the recovery of the empties and other firearms from them and also denied that they had gone with Jamroze Khan in his Pajero Jeep and they also denied to have committed the alleged offence on account of murder of Mst. Azmat Bibi wife of Muhammad Sarwar which took place 16/17 years prior to the instant incident. The appellants/accused did not examine any witnesses in defence. The trial Court Judge after recording the evidence and hearing the learned counsel for the parties convicted and sentenced the appellants as said above, while acquitted Jamroze Khan who was charged with abatement of the said offences. The appellants/accused preferred Appeal No, 308-T/99 before the Lahore High Court, Lahore, which was heard by learned Division Bench of the High Court when the said Division Bench dismissed the said criminal appeal and criminal revision maintaining the conviction and sentence. 4. We have heard learned counsel for the parties and perused the record.
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5. Contentions of the learned counsel for the appellants are that the motive with regard to murder of Azinat Bibi which had taken place about sixteen years prior to the incident was too remote to be believed for 'the commission of instant offence as same being farfetched with also could not be proved on record. He further submitted that testimony of alleged two eyewitnesses, namely, Niaz Akhtar, PW-11 and Tahir Hussain, PW-12, is not confidence inspiring as it would appear that they did not suffer any injury in spite of alleged indiscriminate firing of such deadly weapons as allegedly used by the appellants/accused. It was further urged that prosecution has not examined Investigating Officer who conducted the investigation of the case, therefore it was serious blow to the case of the prosecution which also caused prejudice to the appellants/accused. He further submitted that no inmate of the house of Aurangzeb was examined to support the prosecution case, consequently the best evidence was withheld and the ocular version was of interested and hostile witnesses which could not be relied upon. He also submitted that crime empties were not wedded with the firearms and fake recovery has been planted upon the appellants/accused as no independent witness of recovery came forward to depose -against the appellants/accused and further that the ocular testimony was in conflict with the medical evidence considering that stomach of Muhammad Saeed deceased, was found empty and further considering the. site-plan and the size of the room, the presence of the two ocular witnesses who escaped unhurt was not possible in view of the indiscriminate firing allegedly on the part of the appellants/accused. Learned counsel further submitted that in view of the weak motive and ocular testimony of interested and hostile witnesses in absence of independent corroboration capital sentence cannot be sustained. 6. Learned counsel for the respondent/complainant submitted that learned Division Bench and the trial Court have rightly appraised the evidence on record and arrived at right conclusion in the appreciation of evidence in accordance with law which required no interference considering that ocular version of PWs Niaz Akhtar and Tahir Hussain was confidence inspiring and unimpeachable and fully corroborated by independent, circumstantial, confirming medical evidence and recovery of the firearms and empties which were found at the pointation of the accused, so also the said weapons of crime and also the motive which had taken place 3/4 months prior to the instant occurrence as per record and father that even if it is assumed that motive was not proved or was weak it cannot be said that the case of prosecution was not proved keeping in view the confidence inspiring ocular testimony and unimpeachable evidence corroborated by other circumstantial and confirmatory evidence. 7. The prosecutibn case is based on the following pieces of evidence:-- (I) Ocular testimony of PW-11 Niaz Akhtar and PW-12 Tahir Hussain; (II) Medical evidence of PW-5 Dr. Muhammad Arshad and post-mortem report; (III) Recovery evidence of empties and recovery of firearms; and (IV) Motive. (V) Absconsion of appellant/accused Muhammad Raees. 8. FIR Ex. PQ/1 was registered at. P.S. I3hara Kahu at 2305 hours on 9.12.1997 whereas the time of incident is stated to be 2000 hours when the distance between the place of the incident and the Police Station is shown to be twenty kilometers whereas Ex. PQ, F.I.R., was written at the place of incident by S.I. Arhar Hussain at 2220 hours of P.S. Bhara Kahu and thereby.it could be conveniently said that after recording the complaint at the place of incident, FIR was promptly lodged at the P.S. as such there could not be said to have taken place in-between, any deliberation and consultation so as to falsely implicate the appellants/accused in the commission of offence. Reference may be made to Said Shah v. The State (NLR 1988 Criminal 381(b). On reading the FIR we find that the complainant PW-11 Niaz Akhtar has specifically stated about the weapon with which each of the appellant was armed and the side from which the said appellant/accused entered into the room
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and as to who fired upon whom at the specific place on the person of deceased causing injuries to each of the deceased. PW-11 in his testimony before the Court has deposed:-- We all sat on cots in the house of Aurangzeb and waited for return of Aurangzeb. The tube light and the electric bulbs were lit. When we were waiting for the arrival of Aurangzeb it was about 7.45 p.m. and in the meanwhile Muhammad Hanif, Muhammad Waqar, Wariyam and Muhammad Sarwar accused present in Court came there from the eastern side. Muhammad Wagar accused was armed with .30 bore pistol, Muhammad Hanif was armed with .7mm rifle, Muhammad Wariyam was armed with .7 mm rifle, Muhammad Sarwar accused was armed with .30 bore pistol. Haroon Rasheed accused armed with kalashinkov, Raees accused armed with Kalashinkov, Muhammad Nawees accused armed with 44 bore came from the western side and trespassed into the roam where we were sitting in the house of Aurangzeb. Haroon Rasheed accused raised the lalkara that they had come to teach lesson to Hassan Akhtar and Muhammad Saeed for committing the murder of Azmat Bibi wife of Muhammad Sarwar accused. The accused made me, my maternal grandfather Muhammad Sharif, my mother Mst. Mazloom Bibi and my cousin Tahir on one side in the room. Haroon Rasheed accused fired a burst of Kalashnikov which hit my father Hassan Akhtar on the right hand and on the neck, then Muhammad Raees accused fired the burst of Kalashnikov which hit _ my uncle Muhammad Saeed an the left shoulder, my maternal uncle Muhammad Faris tired to -rescue my father and my uncle and Muhammad Hanif fired with .7mm rifle which hit Muhammad Faris on his right cheek? Muhammad Nawees, Wagar, Wariyam and Muhammad Samar indulged in indiscriminate firing which hit my father, my uncle Sneed and my maternal uncle Faris. When the accused were satisfied that all the three had died then all the accused fled away from the spot by firing. Besides me, my maternal grandfather Muhammad Shari'', my mother Mst. Mazloom Bibi and my cousin Tahir saw the occurrence." The said witness was cross-examined at length by the defence which consists of fifteen full pages but on perusal of the said cross-examination it appeared that the defence has failed to shake the credibility and veracity of said witness. The testimony of PW-II Niaz Akhtar is consistent with the contents of the FIR lodged promptly. 9. PW-12 Tahir Hussain in his testimony has deposed as under: We all sat on cots. and chairs in a room of the house of Aurangzeb and waited for his return. Inside the room and outside the room the tube lights and the electric bulbs were lit. It was 8 p.m. and from the eastern door of the room Wagar armed with 30 bore, Hanif accused armed with .7mm rifle and Muhammad Sarwar accused armed with .30 bore and Wariyam accused armed with .7mm rifle entered the room. From the western door of the room of occurrence Haroon Rasheed armed with Kalashnikov, Raees accused armed with Kalashnikov and Muhammad Nawees armed with .44 bore entered the room. Haroon Rasheed accused after entering the room raised the lalkara that they had come to teach lesson to Hassan Akhtar and Saeed for committing the murder of Mst. Azmat wife of Muhammad Sarwar accused. On the pointation of the weapons the accused persons made me, my aunt Mst. Mazloom and my cousin Niaz Akhtar, Muhammad Faris and Muhammad Sharif, in one corner of the room. Haroon Rasheed accused gave the first burst of kalashnikov which hit Hassan Akhtar on his .right hand and his neck. Then Raees accused fired with kalashnikov which hit Muhammad Saeed on the left shoulder on its black. Muhammad Faris came forward to save Saeed and Hassan Akhtar and Hanif accused fired with .7mm rifle which hit Faris on his left cheek. When the three injured persons were in the process of full then the accused, namely, Waqar, Sarwar, Wariyam and Nawees indulged in indiscriminate firing upon the three injured persons. When three injured persons fell down on the floor then all the seven accused named above ran towards their house by firing. I, Niaz Akhtar, Mst. Mazloom Bibi and Muhammad Sharif PWs saw the occurrence. All the three injured namely Hassan Akthar, Muhammad Saeed and Faris succumbed to the injuries at the spot."
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PW-12 was cross-examined by the defence counsel at length which cross-examination consists of eleven full pages. We have not been able to find that the defence has shaken the credibility or veracity of the said witness on the material points. It may also be brone in mind that incident had taken place on 9.12.1997 while the evidence of PWs 11 & 12 was recorded on 19.10.1999 and 25.3.1999 respectively, almost after two years of the incident, therefore somewhat little omissions and inconsistencies are bound to occur but so far the material part of implication of the appellants/accused is concerned the same has been affirmed by both the PWs in their testimony even after two years. We have not been able to find any plausible reason on record or from the arguments advanced from the learned counsel for the appellant that as to why the said PWs would falsely implicate the present appellants in the commission of crime if real culprits were other than the appellants. 10. The ocular testimony of both the PWs is also affirmed by medical evidence of PW-5 Dr. Muhammad Arshad and Inquest Reports Exs PR, PS & PT and post-mortem examination reports Exs. PJ, PK & PL which affirmed the locale and injuries found on the person of deceased with firearms used by each of the appellant/accused which was deposed by Pws 11 & 12 and stated in the FIR by the complainant. The Inquest Reports Ex. PR of Muhammad Faris, Ex. PS of Muhammad Saeed and Ex. PT of Hassan Akhtar deceased also confirm the locale of injuries inflicted upon the deceased persons with firearms as deposed in the ocular testimony by the said two PWs. There is no dispute with regard to place of incident having taken place in the said room of the house of Aurangzeb as it has not been contested or pleaded by the defence that the incident had not taken place in the room of the house of Aurangzet. Besides, Ex. PM which is site-plan which mentioned two doors of the room eastern and western from -which specified appellants/accused are said to have entered and the place and distance at which the deceased Akhtar Hussain and Muhammad Saeed were standing. As per site-plan Hassan Akhtar, deceased, was at Point No, 1 to whom appellant/accused Haroon Rasheed is said to have fired from Point No, 4 which is western door at the distance of seven feet from the Point No, 1, and as per Doctor's evidence wound of entries on the person of deceased Hassan Akhtar were found having no burning or blackening or tattooing around the margins of wound in respect of injuries sustained by him being beyond the distance of three feet, except on the right hand one gutter wound and on the thinner area of hand, smoke was found to be present whereas in case of other deceased persons, none was nearer than three feet from the assailant considering that nearest victim Muhammad Saeed was at Point No, 2 which was about four feet from the place of firing of Muhammad Raees appellant at Point No, 4 who was standing at the western door whereas Muhammad Faris who was standing at Point No, 3 was fired from Point No, 5 by Muhammad Hanif accused who was hit by .7mm rifle which shot hit him on the mid of left cheek when wound of injury on the right chest back just below the apex of scapula, and wound of exit on the left chest on lateral surface and on the top of mid of vertex. No burning, blackening or tattooing were found as per Injuries Nos, 3 to 5 being distance beyond three feet from the place of firing where the appellant/accused Muhammad Hanif was standing. PW-6 Muhammad Akram (Draftsman) again stated that at arms length's distance at Point No, 4 from Point No, 2 would be PA to 1% feet. Again stated that nearest person at Point No, 5 shall'be 4 from Point No, 3 and the arms length would be about two feet. Be that as it may, it could safely be said that blackening by smoke and unburned gun-powder surrounding firearm injuries would not only depend on the distance from which shot is fired but also on (i) kind and quantity of gun-powder (charge) used in the cartridge and (ii) length of barrel and size of barrel diameter at muzzle end. Reference may be made to the decision of this Court in Wahid v. The State (PLD 2002 SC 62 at 67), wherein this Court has observed:-- "These observations to show that the charring effect depends not only on the distance from which the shot is fired but also on the kind of powder used in the missle. We have no information in the
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present case on this point. In these circumstances, the positive testimony of the eye-witnesses, who are otherwise dependable and natural witnesses, cannot be cast aside merely on the basis of the theoretical opinions relied upon by the defence." Besides, it may be observed that in the instant case ocular testimony of both PWs is confidence inspiring and unimpeachable, therefore the site-plan which is not substantial piece of evidence (Reference my be made to decision of this Court in Sardar Khan & three others v. The State (PLJ 1988 SC 1398 (ix)) in presence of reliable ocular version as such would be confirmatory evidence. The ocular version coupled with medical evidence proved beyond shadow of doubt guilt of the appellants and mere inaccuracy in site-plan A would not take away probative force of testimony in the case, considering also the fact that FIR was promptly lodged and there was no strong reason to falsely implicate the appellants in the case, in stead of real assailants of the deceased. In the circumstances it is held that ocular testimony of PWs. 11 & 12 is confidence inspiring and unimpeachable hence it cannot be excluded from consideration in arriving at a correct conclusion/finding. 11.So far as the contention of learned counsel for the appellants/accused that no inmate of the house of Aurangzeb was examined by the prosecution, it may be observed that it would not lead to adverse inference against the prosecution case considering the fact that Aurangzeb himself was not in the house and had gone to offer Isha prayers while other inmates, namely, wife and daughter of Aurangzeb were in another room and as the said ladies and the deceased persons and PWs were strangers to the ladies of Aurangzeb's family members, hence were not likely to be present in the same room as per tradition of the rural area prevailing and further that in such cases generally the women do not come forward to become witness at the risk of uncalled for enmity with the assailants and further that the prosecution has not said that women folk of Aurangzeb were present at the time of occurrence in the said room. 12. Next contention of learned- counsel for the appellants that I.O. was not examined by the prosecution. It may be observed that in place of I.O. Azhar Hussain, PW-19 Mussarrat Ali Khan, Inspector was examined and he has confirmed and verified the investigation conducted by Azhar Hussain, S.I. who had worked under him and was not available in the country as he had been sent to Bosnia. Non-examination of I.O. Azhar Hussain, in the circumstances would not adversely affect the prosecution case as in his place Inspector Mussarat Ali Khan was examined to attest and certify the investigation of the case, hence it would not be fatal to the prosecution case. Reference may be made to (i) Muhammad Mansha v. The State (1992 SCM R 273) and (iii) Abdul Majeed vs. The State (1992 SCMR 379(b). 13. Next contention of the learned counsel for the appellants is that motive alleged is too remote and weak, therefore prosecution cannot succeed on the basis of said motive which took place about 16/17 years ago. It may also be observed that this Court has time and again held that even absence of Dmotive is not helpful to the accused so also weakness of the motive would not come in the way of prosecution if there was otherwise strong, confidence inspiring, unimpeachable and reliable evidence in support of prosecution case considering that motive is always the state of mind of the accused which cannot be proved by ocular testimony because a number of such incidents appear to occur without any motive to the knowledge of the victim. Reference may be made to the decision of this Court in (i) Syed Mushtaq Ahmad v. Siddiqullah (PLD 1975 SC 160 at 165D), (ii) Abdul Rashid v. Umid Ali (PLD 1975 SC 227 at 236B), (iii) State v. Sobharo (1993 SCM R 585(c) at 592D), and (iv) Syed Hamid Mukhtar Shah v. Muhammad Azam (2005 SCM R 427(b) at 430C), though in the instant case PW-7 Muhammad Munir has deposed that 3/4 months before the present occurrence appellant/accused Haroon Rasheed had a quarrel with Hassan Akhtar, deceased, and he had intervened to compromise when both parties were present in the mosque, Jamroze Khan accused came there and proclaimed that till the revenge of previous enmity was
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not taken, no compromise would be effected and the present occurrence was the result of the said instigation of Jamroze Khan. It is true that his statement was recorded by C.I.A. after investigation was transferred to them which can also be the cause of present occurrence resulting in unnatural death of three young persons. Mere fact that statement of PW-7 Muhammad Munir was not recorded soon after the occurrence, it being the fault of Investigating Officer, would not be sufficient to hold that his testimony was not reliable and was liable to be discarded on that account only. Be that as it may, as time and again this Court has held that absence of motive itself if not a ground to hold that the prosecution was false when there existed strong, reliable and confidence inspiring evidence on record as observed in the above cases. 14. Next contention of learned counsel for the appellants that the ocular testimony of PW-11 and 12 was inconsistent to that of medical evidence has also no substance and merit considering that post-mortem report Ex. PJ of Hassan Akhtar, deceased, would show that he had sustained injuries Nos,…
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