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Petitioner: ASHFAQ AHMED VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Nasir-ul-Mulk, Javaid Iqbal Title: ASHFAQ AHMED vs THE STATE Case No.: Criminal Petition No,85 of 2006 Date of Judgment:2006-05-04 Reported As: 2007 SCMR 641 Result: Petition dismissed
JUDGMENT
JUDGMENT ' JAVED IQBAL, J.--- This petition for leave to appeal is directed against the judgment, dated 27-2- 2006 whereby criminal appeal preferred on behalf of petitioner has been dismissed and judgment of learned trial Court whereby the petitioner was convicted under section 302(b), P.P.C. And sentenced to death with compensation of Rs,50,000 and in case of default to suffer S.I. For six months has been kept intact. 2. Precisely stated the "facts of the case are that adjacent to the house of complainant Muhammad Irfan, there is house of Ijaz; the antenna of said Ijaz was installed to the wall of the house of complainant, three/four days earlier due to wind-storm the said antenna had fallen down and on the day of occurrence at 7-00 a.m. Both Ashfaq Ahmad and Ijaz Ahmad had reached their home on the preceding night from Mianwali where they are employee in the mill, they came to the house of complainant and knocked his door and called his father Abdul Ghafoor to come out of the house, as soon as father of complainant came out, the complainant, his brother-in-law Muhammad Rafi and real uncle Abdul Shakoor also followed him and also come out of their house. The father of complainant came in the vacant plot owned by Muhammad Alam, and he told the accused that the antenna was not intentionally fallen by them but it fell due to wind-storm. Ijaz Ahmad accused abused father of the complainant and in exchange father of complainant also abused him. Meanwhile Ashfaq Ahmad accused brought out a pistol from fold of his Shalwar and simultaneously tired two shots at father of complainant, which hit him on back of left shoulder and the right thigh respectively. The complainant party tried to apprehend the accused persons who after raising Lalkara fled away from the place of occurrence. The complainant and others took Abdul Ghafoor in a serious condition to the hospital but in the way he succumbed to the injuries".
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The petitioner was arrested along with his father namely Ijaz Ahmed (acquitted by the learned trial Court) and after completion of usual investigation sent up for trial and on conclusion whereof the petitioner was convicted and sentenced as per details mentioned hereinabove. 3. Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court appeared on behalf of petitioner and contended that the evidence which has come on record has not been appreciated, in its true perspective and the conclusion as arrived at by the learned trial Court and upheld by the learned Division Bench of Lahore High Court is not in consonance with the evidence which has come on record which resulted in serious miscarriage of justice._ It is also contended that the defence version has not been kept in juxtaposition and discarded without assigning any cogent and concrete reasoning. It is urged emphatically that in view of the divergence of opinion qua the concept of motive, its impact and import a larger Bench may be got constituted so that an authoritative judgment could be pronounced to clarify the anomalous situation. It is worth- mentioning that the said contention which was argued at length is not incorporated in the memorandum of this petition. It is argued that sentence of death could not have been awarded on the basis of statements of witnesses who are not only inter se related but also interested which aspect of the matter escaped notice of the learned Division Bench causing serious prejudice against the petitioner. It is also contended that the investigation has not been conducted honestly which factor was brought to the notice of learned trial as well as Appellate Courts but the same could not be dilated upon and decided in a comprehensive manner. It is also pointed out that had the said aspect of the case been examined in depth the benefit of doubt could have been extended in favour of the petitioner. 4. The learned Advocate Supreme Court on behalf of petitioner has referred the following authorities to substantiate his contentions:-- Zaheer Din v. State 1993 SCM R 1628, Jehanzaib v. State 2003 SCM R 98, Ashiq Hussain v. State 1993 SCM R 417, Safdar Ali v. Crown PLD 1953 FC 93, Waris v. State PLD 1981 SC 127, Feroze Khan v. State 2002 SCM R 99, Abdul Wahab v. State 1999 SCM R 1668, Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCM R 2883, Muhammad Anwar v. State 2001 SCM R 51, Abbas Ali v. State 1987 SCM R 1855, Chandoo v. State 1986 SCM R 720, Nasim Ahmed Siddiqui v. Collector of Customs 1986 SCM R 1669, Tahir Abbas v. State 2003 SCM R 426, Yaqoob Shah v. State PLD 1976 SC 53, Muhammad Sharif v. State 1991 SCM R 1622, Nazir Ahmad v. State 1998 SCM R 1768 and Muhammad Nasim v. State 1993 SCM R 189. 5. We have carefully examined the esteemed views as canvassed at bar by Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court on behalf of petitioner, scanned the entire record with his eminent assistance and perused the judgments of learned trial as well as Appellate Courts carefully. The prosecution case mainly hinges upon eye account furnished by Muhammad Irfan (P.W.2) and Muhammad Rafi (P.W.3), medical evidence, factum of recovery, report of Chemical Examiner (Exh.P.M.), report of Serologist (Exh.P.N.) and the report of Fire-arm Expert (Exh.P.O.). We have thrashed out the above pieces of evidence produced by the prosecution to substantiate its case by keeping the defence version in juxtaposition. We are of the considered opinion that prosecution has substantiated the guilt to the hilt by producing cogent and concrete evidence. We have perused the statement of Muhammad Irfan (P.W.2) who has stated in a categoric manner that "in , the meantime Ashfaq accused brought out pistol from the right side of his Dub and made two consecutive shots at Abdul Ghafoor. The first fire made by Ashfaq accused hit Abdul Ghafoor on the backside of left shoulder and the second fire made by him hit Abdul Ghafoor on the upper part of right thigh of Abdul Ghafoor who fell down on receiving the injuries. We tried to apprehend the accused but both the accused fled away from the place of occurrence while raising Lalkaras. The occurrence was witnessed by my real uncle Shakoor, my brother-in-law namely Rafi and myself. Abdul Ghafoor was removed to the T.H.Q. Hospital Kharian in an injured condition in a car
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but he succumbed to the injuries in the way to the hospital. On reaching the hospital the doctor examined the deceased and informed us that the deceased had already died in the way. Abdul Ghafoor deceased was my father". There is no doubt that Muhammad Irfan (P.W.2) is inmate of the house and it was also clarified while answering one of the questions during cross-examination that "when the accused knocked our door, my mother, sisters and brothers Abdul Ghafoor, Shakoor, Rafi and myself were present inside the house". It was also suggested that the deceased had attempted to have illicit intercourse with Mst. Sarnia (sister of the petitioner) which was refuted by Muhammad Irfan (P.W.2). It is mentioned in a categoric manner that "it is further incorrect that on the day of occurrence when Samia Bibi was returning home from the fields, my father caught hold of her by her arms and wanted to forcibly drag her in the house in order to have illicit sexual intercourse with her. It is also incorrect to suggest that she struggled to release herself from the clutches of the deceased. It is further incorrect that the deceased wanted to take her into his house forcibly at pistol point and by show of force and while she was struggling with the deceased to save her honour and chastity, during, the course of struggle that was ensuring, the pistol which was already loaded went off and thus the deceased suffered the injuries. (The evidentiary value of the statement of Mst. Samia has been discussed in latter part of the judgment). A careful and an in depth scrutiny of the statement of Muhammad Irfan (P.W.2) would reveal that in spite of various searching questions and lengthy cross-examination he stood firm to the test of cross-examination and nothing advantageous could be elicited. It is well-settled by now that merely on the basis of inter se relationship the statement of the prosecution witness cannot be disbelieved. The intrinsic value of such evidence is required to A be examined and not the inter se relationship. In this regard we are fortified by the dictum laid down by this Court in the following cases:-- ' Muhammad Amin v. The State 2000 SCM R 1784, Iqbal alias Bhala v. The State 1994 SCM R 1, Nazir v. The State PLD 1962 SC 269, Khalil Ahmad v. The State 1976 SCM R 161, Allah Ditta v. The State 1970 SCM R 734, Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274 and Farmanullah v. Qadeem Khan 2001 SCM R 1474. 6. We may mention here that interested witness is one who has a motive for falsely implicating the accused, is a partisan and having some rancor or enmity against the accused. No evidence has come on record B inferring any such enmity between the witnesses and that of petitioner. In the absence of any mitigating circumstances which have been explained time and again in various authorities such as Muhammad Sharif v. State 1991 SCM R 1622; Muhammad Yaqoob v. State 1992 SCM R 1983 and Combind Enterprises v. Water and Power Development Authority PLD 1988 SC 39, no leniency can be shown as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner. It is well-settled by now that no lenient view should be taken merely on the ground C that motive has not been proved by the prosecution. In this regard reference can be made to case titled Sajjad Hussain v. State 1997 SCM R 174. The statement of Muhammad Irfan (P.W.2) has been fully supported by Muhammad Rafi (P.W.3) who has stated in a categoric manner that "in the meanwhile Ashfaq accused present in Court made two fire shots at Ghafoor. Ashfaq accused made first fire at Ghafoor which hit on the back of left shoulder. The second fire made by Ashfaq hit Ghafoor on the joint of thigh at upper part. Abdul Ghafoor fell down. We made an attempt to apprehend the accused but they ran away while raising Lalkaras. Abdul Ghafoor was removed to Civil Hospital Kharian who while in the way succumbed to the injuries". It is worth- mentioning that he is also a recovery witness. The veracity of his statement was challenged mainly on the ground that being a chance-witness his statement should have not been considered and relied upon as has been done by the learned trial and Appellate Courts because he was not residing in the house of deceased but on, the contrary he had a separate residence and being a chance witness his presence is not above board which aspect of the matter has been ignored. The above contention seems to be without substance and devoid of merit for the simple reason that
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Mst. Sarnia (D.W.1) has stated while answering one of the questions during cross-examination that Muhammad Rafi (P.W.3) was residing in the house of deceased along with his family by stating that "it is correct that Shafi P.W. Is also residing in the same house along with his family members". No doubt that Muhammad Rafi (P.W.3) is son-in-law of the deceased but it hardly-matters for the reason that his statement is consistent and confidence inspiring. The version of Muhammad Rafi (P.W.3) could not be shattered during cross-examination and nothing beneficial could be extracted rendering any help to they case of petitioner. He has supported Muhammad Irfan (P.W.2) on all material particulars. Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court on behalf of petitioner was asked pointedly after having gone through the statements of Muhammad Irfan (P.W.2) and Muhammad Rafi (P.W.3) that as to why their statements should be discarded or disbelieved, but no satisfactory answer could be given except that in view of their inter se relationship with that of deceased their statement should have been discarded. As mentioned hereinabove inter se relationship itself is no D ground to disbelieve the statement of prosecution witness who otherwise is truthful and trustworthy. It may not be out of place to mention here that the statement of Muhammad Irfan (P.W.2) has not only been corroborated by Muhammad Rafi (P.W.3) but it also finds corroboration from the factum of recovery of a .30 bore pistol at the pointation of petitioner. It is worth-mentioning that crime-empty of .30 bore pistol was collected from the spot on 3-11-1997 and sent without any delay to the Forensic Science Laboratory on 6-11- 1997 while the petitioner was apprehended on 15-11-1997 at whose pointation the pistol was got recovered on 19-11-1997 and thus, the report of Fire-arm Expert could not be challenged on the pretext that the Investigating Officer has made fire from the allegedly recovered, pistol which was subsequently sent to Fire-arm Expert for the simple reason that empty of pistol was sent prior to the recovery of pistol, It is wroth-mentioning that the recovery of pistol was effected at the pointation of petitioner which was concealed in a shed located in the Veranda of the house of the petitioner which was exclusively within his knowledge. Besides the factum of recovery the statements of Muhammad Irfan (P.W.2) and Muhammad Rafi (P.W.3) find corroboration from medical evidence as well as the report of Serologist (Exh.P.N.) and report of Chemical Examiner (Exh.P.M.). The learned Advocate Supreme Court could not substantiate his contention that the medical evidence is not in consonance with` the eye account furnished by Muhammad Irfan (P.W.2) and Muhammad Rafi (P.W.3). The statement of Dr. Farooq Ahmed Bangash (P.W.1) is demonstrative of the fact that post-mortem examination of the dead body of Abdul Ghathor (deceased) was conducted on 3-11-1997 at 9-00 a.m. Which was brought by Muhammad Arshad (F.C. No,243) and Zafar Iqbal (F.C. No,796). Dr. Farooq Ahmed Bangash (P.W.1) has made it abundant clear that the Qameez and Banyan have corresponding holes.- On external examination of the dead body it was observed as follows:-- "(1) Fire-arm entry wound 1 x 1/2 c.m. On the back and upper part of left arm, edges were inverted, blackening present. ' Exit wound 3 c.m. x 2 c.m. On the outer and middle part of left arm, edges were everted. (2) Fire-arm entry wound 2 c.m. x 1 c.m. x going inward with inverted margins on the right inguinal region over the femoral region, vemoral vessels were ruptured badly, blackening was ' Exit wound 1 x 1/2 c.m. On the back and lower part of right hip region, edges were everted. ' Skull: not opened as not required. ' Thorax: All organs were healthy. ' Abdomen: Stomach contained full semi-digested food particules. ' Bladder: Empty. ' Rest of all the organs were healthy. ' Injury No,2 was .Grievous and fatal while No,1 was simple. All the injuries were caused by fire-arm and ante-mortem in nature. After my careful external/internal P.M. Examination I was of the
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opinion. That death had occurred due to excessive haemorrhage and shock as a result of injury No,2 which was sufficient to cause death in ordinary course of nature. Time between injuries and death was about half to one hour and between death and P.M. Was about one hour. A well-stitched dead body, last-worn clothes, police papers, copy of P.M. Report were handed to police. Exh.P.A. Is the correct carbon copy of P.M. Report and Exh.P.A./1 is the sketch of injuries which are in my hand and signed by me." 7. The injuries as observed on the dead body lend full corroboration to the eye account furnished by Muhammad Irfan (P.W.2) and Muhammad Rafi (P.W.3). The learned Advocate Supreme Court on behalf of the petitioner could not mention specifically that what was the main contradiction between the eye account and that of medical evidence. We have also examined the statement of Shabbir Ahmed, S.-I. Model Town Gujranwala (P.W.8) who has supported the prosecution version and after furnishing certain details stated in a categoric manner that "on 15-11-1997 Ashfaq accused while in custody got recovered pistol P.2 along with four live bullets P.3/1-4 from his house. It was made into a sealed parcel and taken into possession vide memo. P.E." Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court on behalf of petitioner has time and again argued that investigation was not conducted in a fair and transparent manner. In this regard a suggestion was also made to Shabbir Ahmed, 5.-I. (P.W.8) who refuted it by stating that "it is incorrect that I got Rs,50,000 as bribe from the complainant and got the investigation of this case entrusted especially to me. During my investigation, the S.H.O. Remained posted in the same police station. It is incorrect to suggest that I failed to record the plea of the accused correctly and faithfully and also failed to record their defence. It is incorrect that accused party made applications against me and I suppressed those applications". The other important feature of his statement is that he refuted that Mst. Samia was ever tortured or disgraced. He has also denied the suggestion that she (Mst. Samia) had appeared before him and told that deceased wanted to outrage her modesty. Shabbir Ahmed, S.-I. (P.W.8) stated without ambiguity in this regard that "it is incorrect that Mst. Sarnia appeared before me and told that the deceased wanted to outrage her modesty and ravish and I refused to record her statement. Volunteered that I had not seen her even. It is incorrect that Sarnia told me that deceased wanted to take her to his house at pistol point for committing Zina with her and that the occurrence took place due to this grave and sudden provocation. It is incorrect that I am deposing falsely". On the suggestion qua motive it was stated by Shabbir Ahmed, S.-I. Model Town Gujranwala (P.W.8) that he had not concocted a false motive to facilitate the case of complainant. No doubt that an admission was made that the alleged recovered pistol was without number which was mentioned subsequently in the report of Fire-arm Expert as CAC-2189 but at the best it can be a lapse on the part of Investigating Officer but it cannot be equated to that of dishonest omission. On the point of recovery of pistol it was stated by Shabbir Ahmed, S.-I. (P.W.8) that it was lying in the Veranda on a shed in the inner side which could have only been in, the exclusive knowledge of the petitioner. We have also kept the defence version in juxtaposition. At first instance the plea of alibi was taken by the petitioner who subsequently took a "U" turn and adopted the plea taken by co-accused namely Ijaz Ahmed while answering the following question:- "Q. Why this case against you and why the P.Ws. Have deposed against you? A. The motive and prosecution story are concocted. The real facts are that I along with my son Ashfaq co-accused along with my family were residing in Mianwali where myself and my son were employed in a Fertilizer Factory. My real daughter Mst. Sarnia was living in my house situated adjacent to the house of the complainant in village Ghurko along with her husband who was employed in Mangla Dam and used to come at every weekend. Whenever we used to come to the village my daughter used to complaint myself, my son Ashfaq and her husband about the bad habits of Ghafoor deceased who wanted to have illicit relations with her for which many times were
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refrained the deceased not to do such nefarious acts with my daughter but he continued to do so. At the time and day of occurrence myself and my son were not present there and my daughter went out of her house to ease and when was coining back to home Ghafoor deceased caught hold of her, took her into his clutches and tried to take her into his house on the pistol point to outrage her modesty and in that episode my daughter grappled with the deceased and resisted whereupon the loaded pistol of Ghafoor went off and the shots hit the deceased as result of which he died. I or my son Ashfaq were not present at the time of occurrence. The P.Ws. Have also deposed falsely being close relatives of the deceased." 8. We have examined the above reproduced defence plea very carefully. It is to be noted that Mst. Samia had admitted in her statement that she remained associated with the investigation on the second day but amazingly the alleged futile attempt made by the deceased to commit illicit intercourse was never brought to the notice of Shabbir Ahmed, S.-1. (P.W.8), who has given a categoric statement in this regard as discussed hereinabove. It has further been observed with curiosity that Mst. Samia had not informed about the said incident to his parents or brother immediately after its occurrence but mentioned it when she visited jail after 15/16 days of the occurrence to see them. Mst. Samia has admitted in a categoric manner that "I met the accused in jail after 15/16 days of the occurrence and then I narrated incident to them". The conduct of Mst. Samia is unusual and the defence plea is concocted one and her statement appears to be an afterthought. We have also observed that the injuries sustained by the deceased could not have been caused during his struggle with Mst. Samia. Even otherwise it has come on record that there was no sign of burning around the sustained injuries but on the contrary blackening was observed meaning thereby that firing was made beyond the distance of three feet which was not possible during the course of struggle between Mst. Samia and that of deceased because in such an eventuality the question of distance does not arise. The medical evidence is further indicative of the fact that injury No,2 proved fatal which could not have been caused during struggle in view of the seat of the injury. 9. We have not persuaded to agree with the prime contention of Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court on behalf of petitioner that in view of the divergence of opinion qua motive a larger Bench should have been constituted for the simple reason that for the last so many years the judicial consensus seems to be that it is not necessary for the prosecution to prove motive irrespective of the fact whether it has been alleged or otherwise. The question of motive, its import and significance has been examined by this Court in case of Waris Khan v. The State 2001 SCM R 387 which was authored by one of us (Mr. Justice Javed Iqbal) wherein it was held as follows:--- "It is a well-entrenched legal position that a weakness of a motive or its absence or where alleged but not proved would hardly make any difference in case the eye account is worthy of credence, unimpeachable, confidence-inspiring and accusation established beyond shadow of doubt. Let we mention here at this juncture that the principles as laid down a few decades ago regarding motive are still in force which can be summarized as follows:-- "Proof of motive or previous is not necessary to sustain a conviction for murder in a case where a person is coolly and barbarously put to death [(1867) 7 W.R.) (Cr.) 60; 1932) 11 Pat.280] or when the offender is caught red-handed while committing murder. [(1929) 31 Cr.LJ 774, 30 P.L.R. 749]. Where the fact of murder has been clearly established, it is by no means incumbent on the prosecution to show what particular motive actuated the criminal's mind and induced him to commit the particular crime. [(1924) 26 Cr.LJ 774, (1925) AIR (L) 328]. Where however, the prosecution puts forward a substantive case as to the motive for the crime, the evidence regarding the motive has got to be considered in order to judge the probabilities. Failure to prove motive, however, cannot outweigh the positive evidence as to the crime. [(1924) 41 C.L.J. 35, (1925) AIR (C) 525]. The motive
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may never be discovered and the suggestion of a motive possibly a wrong motive, may lead the Court astray. [(1930) 8 O.W.N. 107, (1931) AIR (0) 119] But motive for a crime, while it is always a satisfactory circumstance of corroboration when there is convincing evidence to prove the guilt of an accused person, can never supply the want of reliable evidence, direct or circumstantial, of the commission of the crime with which he is charged."[(1926) 7 Lah. 84, 89]. 9. It was held in the year 1938 in case Tun Khine v. King (40 Cr.LJ 49: AIR 1938 Rang. 331) that "it is not part of the prosecution's duty to suggest a motive for a crime; nor it is any duty of the Court to determine why an offence was committed". It is noticeable that "where there is clear proof of motive for the crime, that lends additional support to the finding of the Court that the accused was guilty; but the absence of clear proof of motive does not…
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