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Petitioner: SHABBIR AHMAD and another VS Respondent: THE STATE and others
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Basharat Ahmed Sheikh, Sardar Said Muhammad Khan Title: SHABBIR AHMAD and another vs THE STATE and others Case No.: Criminal Appeals Nos.10 and 11 of 1996 Date of Judgment:1997-05-08 Reported As: 1997 P Cr. L J 1539 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' BASHARAT AHMAD SHAIKH, J.--- These two appeals have been filed as of right under the Islami Tazeerati Qawaneen Nifaz Act. Shabbir Ahmad was tried for the offence of "Qatl-e-Amd" under section 5 of the Act and, having been found guilty, was awarded the sentence of "Qisas". A reference was sent by the Zilaee Adalat Muzaffarabad to the Azad Jammu and Kashmir Shariat Court for confirmation of the death sentence while Shabbir Ahmad filed appeal against his conviction. By a consolidated judgment announced on 4th of September, 1996, a learned Judge in the Shariat Court upheld the finding of guilt but reached the conclusion that "sentence of Qisas was not proper". With reference to section 24 of the Islami Tazeerati Qawaneen Nifaz Act, the learned Judge awarded the sentence of life imprisonment in place of death sentence holding that in the circumstances and the details of the case this sentence was sufficient to meet the ends of justice. Shabbir Ahmad has challenged the judgment so far as it upholds the finding of guilt to seek his acquittal. On the contrary Mst. Raheem Jan, widow of deceased, submits that section 24 mentioned above has been wrongly applied and prays that sentence of death may be restored. 2. Facts of the case have been succinctly summarized by the learned Judge of the Shariat Court in the judgment under appeal. A case under section 5 of the Islami Tazeerati Qawaneen Nifaz Act, 1974, was registered against Shabbir Ahmad at Police Station Kahori in Tehsil Muzaffarabad. The prosecution case as unfolded in the F.I.R. Is that on September 8, 1988, Mst. Raheem Jan, P.W.1, along with her husband (now deceased) Abdur Rehman went to the water channel, where it had two branches for the purpose of irrigating the land. Abdur Rehman started diverting water towards his land. Shabbir Ahmad appeared there and asked him not to divert the water. Abdur Rehman said to Shabbir Ahmad that his turn had expired and now it was his turn. He also said that there was plenty
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of water in the channel which could be shared in half and half. Shabbir Ahmad did not agree with Abdur Rehman. He brought out a Chhuri from his pocket and opened the attack on Abdur Rehman. He inflicted injuries on chest, neck and abdomen. Mst. Raheem Jan raised hue and cry whereupon Munshi Muhammad Sulaman, Altaf and Habib Ullah were attracted to the place of occurrence. They witnessed the occurrence. Abdur Rehman succumbed to the injuries at the place of occurrence. The cause of the occurrence was previous enmity prevailing between the husband and appellant regarding the distribution of water. 3. After the registration of the case, P.W.14, Muhammad Aslam Khan, S.H.O. Proceeded towards the place of occurrence. When he reached on the spot, he found the dead body lying there. He prepared the inquest report Exh.P.Z. And sent the dead body to the hospital for post-mortem. On the same day, he recovered the blood-stained stones from the place of occurrence in the presence of P.W.5, Haji Ali Akbar Khan and P.W.6, Malick Aman Khan. He prepared the parcel of the stones and also prepared the recovery memo. Exh.P.B. On the same day, he also recovered the clothes of deceased (Abdur Rehman) after the post-mortem, and prepared the recovery memo. Of the clothes in presence of P.W.5, Haji Ali Akbar and P.W.6, Malick Aman. Subsequently, on 9-9-1988, he recovered the blood-stained Chhuri at the instance of appellant Muhammad Shabbir in presence of Malick Aman P.W.6 and Abdur Rashid P.W.12. He prepared recovery memo. Exh.P.D. He also recovered the bloodstained clothes of the appellant at his instance in presence of Malick Aman ' P.W.6 and Abdur Rashid P.W.12. Doctor Sadiq Hussain, C.M.O., Kahori conducted the autopsy. Muhammad Siddique Patwari prepared the site plan. The statements of the eye-witnesses and others were recorded under section 161 of the Cr.P.C. After conclusion of the investigation, the police forwarded Shabbir Ahmad to the Zilaee Adalat, Muzaffarabad for facing trial under section 5 of the Islami Tazeerati Qawaneen Nifaz Act, 1974. The said Court after the trial, found the appellant guilty and awarded him the sentence of "Qisas". 4. In support of his appeal for acquittal, Mr. Ghulam Mustafa Mughal, the learned counsel for Shabbir Ahmad took as through the evidence of the case and raised manifold pleas in order to show that the evidence has been wrongly believed. He submitted that there was delay in lodging of First Information Report which had not been satisfactorily explained. He submitted that the witnesses made improvements when they appeared in the Court which showed that they were suppressing the actual manner in which the occurrence took place. It was vehemently pleaded by him that from the prosecution evidence and over all facts of the case it could easily be inferred that, if at all, it was a blind murder. In this respect the learned counsel also emphasized that there were injuries on the person of Shabbir Ahmad which were not explained and also that, as claimed by him,' medico-legal report contradicts the testimony of eyewitnesses. It was also contended that injuries on the person of Shabbir Ahmad showed that he was attacked first. Injuries on the person of Shabbir Ahmad established that right of private defence was available to him. He strongly relied on the fact that Abdul Rehman diverted the water which was already irrigating the land belonging to Shabbir Ahmad and submitted that the deceased took the law in his own hands in such a way that Shabbir Ahmad became entitled to exercise his right of private defence, Mr. Ghulam Mustafa Mughal also raised the plea that the Shariat Court failed to give benefit of the period spent by Shabbir Ahmad as an undertrial prisoner. In support of his submissions, mentioned above, the learned counsel placed reliance on a large number of cases. We will refer to only those which are found relevant. 5. According to the prosecution case, Mst. Raheem Jan, the wife of Abdul Rehman, was present when the occurrence took place and is the most important eye-witness in the case. In the First Information Report lodged by her it was stated by her that Munshi Suleman Habib Ullah and Altaf saw the occurrence. Out of them Habib Ullah, the real brother of deceased Abdur Rehman and Munshi Suleman appeared as prosecution witnesses. He was the husband of the sister of the
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deceased but he claimed that he was also a cousin of convict Shabbir Ahmad. Malik Aman and Abdul Rashid were amongst those who appeared as prosecution witnesses. Apart from advancing the arguments that Mst. Raheem Jan made significant improvement in her Court statement, it was contended by Mr. Ghulam Mustafa Mughal that Mst. Raheem Jan did not even throw a stone on Shabbir Ahmad when he allegedly stabbed the deceased twice in her presence which makes the presence of Mst. Raheem Jan on the spot to be improbable. He also tried to prove that P.Ws., Habib Ullah and Munshi Suleman, had also not seen the occurrence. In this context he submitted that it is stated in the First Information Report that Munshi Suleman, Habib Ullah and Altaf were attracted to the place of occurrence when Mst. Raheem Jan raised hue and cry but in their Court statements Munshi Suleman and Habib Ullah narrated the whole incident from start to the finish. Our attention was also drawn to a portion of statement of Malik Aman in which he stated that he reached the place of occurrence at 8-00 a.m., two hours after the occurrence, and prosecution witness Habib Ullah came to the place of occurrence in his presence. Another argument raised by Mr. Ghulam Mustafa Mughal is that place of occurrence is not visible from where the eye-witnesses Habib Ullah and Munshi Suleman are stated to have seen the occurrence. The learned counsel also raised some other points in support of his contention that the prosecution evidence has been wrongly believed. These arguments have, been countered by the learned Additional Advocate-General, Kh. Attaullah Kayani, and elaborately by learned counsel for the complainant Sardar Rafique Mahmood Khan. 6. The evidence produced by the prosecution was believed by the trial Court. During the hearing before the Shariat Court evidence was thoroughly examined at the request of the learned counsel for Shabbir Ahmad. The detailed . Judgment shows that reappraisal of the evidence was conducted after which the learned Judge also reached the conclusion that the prosecution evidence was trustworthy. The prosecution evidence consists of three eye-witnesses as well as recoveries including that of the weapon of offence. The blood-stained clothes were also recovered at his instance. Recoveries have also been believed. 7. Reappraisal of evidence is not a function of this Court. Once it is settled that there has been proper appraisal of the evidence this Court does not even draw conclusions different from those drawn by the first appellate Court and the trial Court. However, this Court does examine evidence to see whether there has been any cross misreading or non-reading which may have resulted in miscarriage of justice. 8. During his elaborate arguments the learned counsel for Shabbir Ahmad has not been able to show us any misreading or non-reading of evidence. We are satisfied that the Shariat Court as well as the trial Court has brought under consideration the evidence which is on the file and there is no piece of evidence which has not been duly considered. We are also satisfied that the conclusions drawn from the evidence are proper and not such as may be found unreasonable. We agree with the contention of Sardar Rafique Mahmood Khan that presence of Mst. Raheem Jan is not only established from the record but it was not even challenged during cross-examination. We also upheld the contention of Sardar Rafique Mahmood Khan that prosecution witness Ali Akbar is an independent witness who reached the place of occurrence and deposed before the Court that he not only saw Mst. Raheem Jan but also saw eye-witnesses Habib Ullah and Munshi Suleman present at the place of occurrence when he reached there. He also stated that Mst. Raheem Jan narrated the incident to him. The plea that the place of occurrence was not visible from the spot from where eye-witnesses Habib Ullah and Munshi Suleman claimed to have seen the occurrence also cannot be accepted because their testimony has been accepted by the Shariat Court and the trial Court that they actually saw the occurrence. It may also be pointed out that the learned Judge in the Shariat Court, Muhammad Riaz Akhtar Chaudhry, J., himself inspected the spot along with a Patwari and prepared spot inspection notes and apart from analyzing the record, recorded the
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finding on the basis of his inspection that the place of occurrence point No,1 and point No,2 in the map were visible from the places where Munshi Suleman and Habib Ullah are stated to have witnessed the occurrence. Reliance was placed on behalf of the convict on a portion of statement of Mst. Raheem Jan in which she stated that when Habib Ullah and Munshi Suleman reached the place of occurrence she told them that Shabbir Ahmad had murdered her husband and narrated the incident to them. It was contended that if the two eye-witnesses had themselves seen the occurrence Mst. Raheem Jan would not have narrated the incident to them. This argument has been repelled in the judgment under appeal holding that it was natural for Mst. Raheem Jan to have stated to the eye-witnesses when they met her that Shabbir Ahmad had murdered her husband and it does not mean that they had not themselves seen the occurrence. 9. The argument based on the injuries on the person of Shabbir Ahmad also did not find favour initially, with, the trial Court and then with the Shariat Court. The injuries on the person of Shabbir Ahmad are abrasions and one incised wound at the level of second meticipal bone. In the judgment under appeal this plea has been rejected in light of evidence in the case. 10. The learned counsel for Shabbir Ahmad vehemently disregarded and attacked the view taken by the Shariat Court on the point of injuries and contended that if injuries on the person of an accused are not explained by the prosecution adverse inference has to be drawn against the prosecution that the actual manner in which the occurrence took place was being suppressed. He relied on Lakhmi Singh v. The State of Bihar AIR 1976 SC 2263 in which it was held that non- explanation of the injuries sustained by the accused is a very important circumstance from which the Court can draw the following inferences:-- (i) the prosecution has suppressed the genesis and the origin of the occurrence; (ii) the witnesses are telling a lie on a most material point, and therefore, their evidence is not reliable; (iii) if there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. ' It was further held that there may be a case where non-explanation of the injuries by the prosecution may not affect the prosecution's case where injuries are minor and superficial or where the witnesses are so clear and cogent, independent and disinterested, probable, consistent and creditworthy that it may not affect the omission to explain injuries. In our view this judgment does not help the convict in so far as the question of guilt is concerned but may be helpful in determining question of sentence because there is no defence version in the present case and the injuries are minor. P.W. Munshi Suleman stated in his Court deposition that when Shabbir Ahmad saw him and P.W. Habib Ullah coming towards the place of occurrence he started running towards his house and, he was chased by the said eye-witnesses. As a consequence Shabbir Ahmad fell into a low lying field. The learned Judge in the Shariat Court has observed that the abrasions might have been caused when, as stated by P.W. Habib Ullah, he jumped from a higher place. About the incised wound it has been observed that it might have been caused while inflicting injuries to Abdur Rehman with Chhuri. It was also observed that the abovementioned injuries could not have been seen by Mst. Raheem Jan and, therefore, she could not explain them. We will discuss this aspect when dealing with the question of quantum of sentence. Mr. Ghulam Mustafa Mughal also relied on Abdur Rehman and another v. Fida Hussain and 3 others 1989 PCr.LJ 2028 in support of his contention but this case also does not help him because the accused in that case was acquitted mainly on three grounds that the injuries on the person of the accused were not explained, that the case was full of grave doubts and material contradictions; the sole factor of suppression of injuries was not the deciding point. We may also add that injuries of Shabbir Ahmad were not suppressed because the prosecution got him medically examined and his injury statement was also duly made part of the file. We may also refer to a judgment of this Court reported as Muhammad Khalil
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v. The State 1992 SCR 249 in which it was held that the mere fact that the injuries on the person of accused were not explained would not bring the case within the ambit of self-defence. 11. The point of delay in lodging of the First Information Report has also been rejected after detailed discussions in para. 9 of the judgment. The incident took place at 6-00 a.m. And the First Information Report was lodged at 11-15 a.m. At Police Station Kahori which is at a distance of five miles from the place where the occurrence took place. The learned Judge has mentioned that the road head is at the considerable distance from the place of occurrence as was noticed during the visit to the spot. It is noted in para. 9 that some time must have been consumed in reaching the road head and some more time in searching for transport. Apart from that some time was spent in getting the application written. The woman whose husband was murdered could not be expected to immediately proceed to police station to get the report registered in light of the atmosphere of grief and mourning which resulted from the murder. It was also observed that mere delay in absence of any allegation of substitution or concoction, which is wanting in the case, is not important. In our opinion the view taken by the Shariat Court is correct and must be upheld. 12. As an upshot of the foregoing discussions the concurrent finding that the case against Shabbir Ahmad stands proved is upheld. However, two factors have been treated by the learned Judge in the Shariat Court to be adverse to the prosecution. Both these factors have been linked to the quantum of sentence. Firstly it has been held that motive was alleged but prosecution failed to prove it, therefore, it has to be inferred that the occurrence did not take place in the manner stated by the prosecution. Secondly it has been held that right of private defence was available to Shabbir Ahmad but he exceeded it. On the basis of these two factors the sentence of death was altered to life imprisonment by reference of section 24 of the Islami Tazeerati Qawaneen Nifaz Act. Before reaching the conclusion that sentence of life imprisonment was sufficient to meet the ends of justice the learned Judge made some general observations in which he said that 'sentence in a criminal case must be measured in golden scale and should be properly balanced". It was also remarked that the sentence in case "must deter the rest of the society from the commission of crime without being unnecessarily harsh". 13, We may first discuss to the question of motive. The view taken in the judgment under appeal is that if prosecution fails to establish motive set up by it death sentence would not be awarded. In this connection reliance has been placed on Muhammad All v. The State 1988 PCr.LJ 307, Ghulam Hussain v. The State 1987 PCr.LJ 1812, Hakim All and 4 others v. The State 1971 SCM R 432, The State v. Muhammad Siddique 1992 M LD 2116 and All Hussain v. Mukhtan and another 1983 SCM R 806. 14. Facts in Muhammad Ali's case were that the deceased and some other persons were coming home from the fields and the accused persons, armed with pistols, were lying in ambush. One accused fired but his shot missed, The other accused Muhammad fired the second shot hitting the deceased as a result of which he fell down and died. It was alleged that Muhammad Ali's father and the father of the deceased had a dispute over their joint property. This motive was not proved but the case stood proved against Muhammad Ali on the basis of the prosecution evidence. He was awarded death penalty but the High Court reduced his sentence to imprisonment for life on the basis that the motive for the crime was shrouded in mystery. 15. In Ghulam Muhammad's case the convict was sentenced to death but on appeal the sentence was altered from death to imprisonment for life on the ground that motive set up by the prosecution was obscure and real cause of murder was shrouded in mystery. 16. In Hakim Ali's case it was held by the Supreme Court of Pakistan that where the prosecution has set up a motive and failed to establish it then it is prosecution which must suffer and not the defence. In this case the prosecution failed to establish the motive and also failed in establishing that the incident occurred in the manner alleged by it and the appellant was acquitted. The observations that the prosecution must suffer on account of its failure to establish the motive set
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up by it were in the context that the defence had also put up a version of the motive. In this situation it was observed as follows at page 444:-- "In the present case the High Court did not accept the motive set up by the prosecution because, according to it, the immediate cause which led to the occurrence in question remained undetermined. Having come to this conclusion it did not take the trouble to examine if the defence version of the motive had received any support from the evidence. The evidence of Lal Din, practically admitting the defence version of the motive, unfortunately, remained unnoticed even though it was abundantly supported also by documentary evidence. It may be that the learned Additional Sessions Judge went a little too far in holding that the accused had acted in the exercise of their self-defence' but even if that finding be not justified it cannot be said that the motive set up by the defence was totally false. When the High Court agreed with the trial Court that the motive alleged by the prosecution could not have been the motive of the crime it was not called upon to consider whether the defence version was true. It was sufficient that the defence version appeared more probable. It is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up a motive and failed to establish it then it is the prosecution which must necessarily suffer on that account and not the defence." 17. In Muhammad Siddique's case the judgment is of a Single Bench of the High Court of Azad Jammu and Kashmir. It was an appeal against acquittal which was dismissed. One of the observations was that once motive is alleged it was enjoined upon the prosecution to prove it. This case being one which deals with questions relating to appeal against acquittal, it has no bearing on the present case. 18. In Ali Hussain's case it was alleged in the First Information Report that the first informant (then injured) was in his house when he was called upon by the accused persons and was told not to visit Ch. Barkatullah, M.N.A. In future to which he replied that he would not give up to doing so. Thereupon, the accused attacked him and caused fatal injuries. The sentence of death was awarded to one of the accused persons and was upheld by the High Court. The Supreme Court altered the sentence to life imprisonment and recorded the following reasons at page 139:-- "Motive, though not a sine qua non for bringing the offence of murder home to the accused, is relevant and important on the question of sentence. In the instant case the motive alleged by the prosecution remains obscure and it cannot be positively maintained that the deceased was stabbed just for refusing to stop seeing Ch. Barkatullah, M.N.A. It seems that there was something else which had actually arranged the accused to attack the deceased. Thus, for the safe dispensation of justice we consider that life imprisonment, in the case, in hand, would meet the ends of justice. Accordingly we convert the death sentence awarded to Mumtaz accused/appellant to life imprisonment and a fine of rupees fifty thousand (Rs,50,000) in all or 5 years' R.I. In default." 19. From the cases cited by the learned counsel for Shabbir Ahmad it may be seen that the proposition that if motive is set up by the prosecution it must be proved otherwise death sentence cannot be awarded, as laid down in the impugned judgment of the Shariat Court, has not so far been laid down or upheld by the Supreme Court of Pakistan. In Hakim Ali's case the observation of the learned Judges of Supreme Court of Pakistan that if a motive has been set up and is not established it is the prosecution which must suffer and not the defence were made in the context that there was defence version of the motive. It is also important that these observations were made while dealing with the question of guilt and not question of sentence, and more, importantly in an appeal against acquittal. In Ali Hussain's case the Supreme Court of Pakistan took the view that the question of motive was relevant and important on the question of sentence. In that case the allegation was that the deceased was stabbed just for refusing to stop seeing a Member of the National Assembly. The learned Judges were not convinced that the murder was committed just
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for that reason and there was something else which had not been brought on record. Therefore, for safe dispensation of justice life imprisonment was considered to be sufficient to meet the ends of justice. We may observe that it was not laid down if a motive set up by a prosecution is not proved death sentence should not be awarded. In fact, as already noted, it was clearly laid down that motive was not a sine qua non for proving the offence of murder. On the question of motive there is a direct authority from Supreme Court of Pakistan. In Ahmad Nisar v. The State, Muhammad Yaqoob Ali, J. (as he then was) speaking for the Court made the following observations…
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