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Petitioner: Mst. ASKAR JAN and others VS Respondent: MUHAMMAD DAUD and others
Court Name: Supreme Court of Pakistan Judge(s): Rehmat Hussain Jaffery, Anwar Zaheer Jamali, Shakirullah Jan Title: Mst. ASKAR JAN and others vs MUHAMMAD DAUD and others Case No.: Criminal Appeals Nos.251 and 252 of 2005 Date of Judgment:2010-07-08 Reported As: 2010 SCMR 1604 Result: Order accordingly
JUDGMENT
JUDGMENT ' ANWAR ZAHEER JAMALI, J.---Criminal Appeal No,251 of 2005, filed by Mst. Askar Jan, mother of deceased Muhammad Khurshid for challenging the acquittal of respondent No,2, Gohar Sultan, respondent No,3 Shajar-ul-Haq alias Feroz, non-awarding of compensation under section 544-A, Cr.P.C., and dismissal of her Criminal Revision No,11 of 1999, and Criminal Appeal No,252 of 2005 preferred by appellant Muhammad Daud against his conviction and sentence awarded by the trial Court, as maintained by the High Court, arise out of common judgment of the learned Division Bench of Lahore High Court, Rawalpindi Bench dated 16-12-2002, passed in Criminal Appeal No,19 of 1999, Criminal Appeal No,20 of 1999, Criminal Revision No,11 of 1999 and Murder Reference No,180 of 1999, hence we purpose to dispose of both these appeals by this single judgment. 2. In these cases, leave to appeal was granted by this Court vide its common order dated 28-7- 2005, which reads as under:- ' "Leave to appeal is granted in listed-petitions to examine as to whether:-- 1. The respondent Gohar Sultan has rightly been acquitted of the charge and evidence available against him has been disbelieved for the reasons recognized under the law. 2. The facts and circumstances of the case and the evidence produced by the prosecution is sufficient to justify the conviction of petitioner Muhammad Daud in the light of the principles laid down by this Court for appreciation of evidence in criminal administration of justice. 3. The amount of compensation imposed upon Muhammad Daud is contrary to the settled law qua accusation against him of causing the murder of deceased-Khurshid. 2. Bailable, warrants in the sum of Rs,1,00,000 (Rupees one lac only) returnable to the Registrar be issued against Gohar Sultan. A separate notice be also given to show cause as to why on setting
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aside the impugned judgment, sentence awarded to him may not be enhanced. ' As no incriminating evidence is available on record against Shajarul Haq alias Feroz, therefore, to his extent petition is dismissed." 3. Briefly stated, the facts relevant for the disposal of these appeals are that on 18-10-1994 at 16-30 hours, on the basis of earlier report No,10, made by complainant Abdul Rashid son of Naqeel Khan, F.I.R. No,497 of 1994 was registered at Police Station Wah Cantt. District Rawalpindi, regarding an incident which had taken place on 17-10-1994. According to the narration of facts in the said F.I.R., complainant Abdul Rashid was working at Riyadh, Saudi Arabia for a period of five years. He knew one Gohar Sultan son of Noor Bukhsh, resident of Mohallah Mehrabad, Hassan Abdal, who also used to work there. They both were doing the business of visas for taking Pakistani citizens to Saudi Arabia. In this connection, Gohar Sultan had taken a loan of Saudi Riyals 1,42,000 from the complainant about five months before he was going back to Pakistan with some visas to bring more Pakistanis to Saudi Arabia. About one and a half months ago, the complainant also reached home from Saudi Arabia and paid a sum of Rs,600,000 to Gohar Sultan in advance for sending some people to Saudi Arabia. On 17-10-1994, at about 7-00 a.m., Gohar Sultan visited the house of complainant and informed him that concerned man along with visas, passports and tickets has reached at POF Hotel, Wah Cantt, therefore, the complainant should also reach there along with balance payment of Rs,312,000. In response, the complainant along with his younger brother Muhammad Khurshid and son Khurram Shehzad, aged about five years, reached at the said POF Hotel Wah Cantt at 17:30 hours, where, in Room No,209, Gohar Sultan was present with one other person Feroz. During conversation, said Gohar Sultan informed the complainant that his driver has gone to Hattar Industries to collect money and the relevant documents were lying in the said vehicle. In these circumstances, Gohar Sultan along with Muhammad Khurshid and Feroz boarded in a Carry Van brought by Gohar Sultan from Hassan Abdal and left for Hattar. At this time a sum of Rs,312,000 was also available with Muhammad Khurshid in the said Carry Van. When despite night time they did not turn up, the complainant kept on waiting and in the morning at about 6:00 a.m., Gohar Sultan informed him that his driver and Muhammad Khurshid have left for Shalimar Hotel, Rawalpindi because at 8-00 a.m., a. Meeting was scheduled. Upon this, the complainant returned home, but suddenly he doubted the bona fides of Gohar Sultan and rushed with one Liaqat Khan to Islamabad Airport, where at about 11-00 a.m., he saw Gohar Sultan and Feroz reaching at the Airport in a taxi. The moment, said Gohar Sultan saw the complainant and Liaqat, he again boarded in the taxi and disappeared while Muhammad Khurshid did not return back. Complaint of the incident was lodged accordingly. 4. Upon receipt of such complaint, investigation of the crime was partly conducted by Ghulam Abbas, A.S.-I. And thereafter by Sardar Muhammad Ali Khan, SI and on the basis of evidence collected by them (Investigating Officer), three persons Muhammad Daud, Gohar Sultan and Shajar-ul-Haq alias Feroz were challaned before the trial Court with the allegations of commission of offence under sections 364, 302, 201 and 34, P.P.C. And section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Before the trial Court, in the first instance, accused Muhammad Daud was charged with the commission of such offence on 11-1-1996. On 16-5-1997, after the arrest of Gohar Sultan, charge was reframed against two accused Muhammad Daud and Gohar Sultan, and finally, after the arrest of third accused Shajar-ul-Haq alias Feroz, on 16-6-1998, all the three accused were charged for the commission of offence as under:-- "I, Pervaiz Ali Chawala, Addl. Sessions Judge, Rawalpindi, do hereby charge you as under:-- (1) Muhammad Daud son of Muhammad Akram caste Awan r/o Sabaz Pir, Police Station Hassanabdal, Distt. Attock. (2) Gohar Sultan son of Noor Bukhash caste Mughal r/o Sabaz Pir, Police Station Hassanabdal, Distt. Attock.
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(3) Shajar-ul-Haq alias Feroze son of Muhammad Siddique caste Rajpoot Chohan r/o Talwara, Police Station Lotra, Distt. Sialkot at present Quarter No,225 19-F Wah Cantt. ' That on 17-10-1994, you all the above named three accused persons abducted Muhammad Khurshid s/o Naqeeb Khan caste Mughal r/o Mehrabad, from the premises of POF Hotel, Wah Cantt. In order that he might be murdered and thereby you all committed an offence punishable under section 364 read with 34, P. P. C . ' Secondly, that on the said date, you all the above named accused persons, after having abducted aforesaid Khurshid, in furtherance of common intention, you all committed qatl-e-amd of said Khurshid in the area of village Porr Miana PS Hasanabdal and thereby you all committed an offence punishable under section 302 read with 34, P.P.C. ' Thirdly, that on the said date, after having abducted aforesaid Khurshid, you all the above named accused persons committed theft of an amount of Rs,3,12,000 after having made preparation for causing death of aforesaid Khurshid and thereby you all committed an offence punishable under section 382 read with 34, P.P.C. In furtherance of common intention of you all. ' Fourthly, that on 19-10-1994 you Daud accused were found in possession of stolen cash amounting to Rs,29,000 which you had dishonestly kept in your possession having the same stolen property and thereby you Daud accused committed an offence punishable under section 411, P.P.C. ' Fifthly, that you Gohar Sultan accused on 31-5-1996 from your house situated in Sabaz Pir, Hassanabdal got recovered a cash of Rs,40,000 which being the stolen property and having kept by you Gohar Sultan accused in your possession dishonestly having the same as stolen property and thereby you Gohar Sultan committed an offence punishable under section 411, P.P.C. ' AND WHEREAS, the aforementioned offences are within the cognizance of this Court and it is hereby directed that you all be tried accordingly by this Court." 5. On denial of such charges, by all the three accused in the crime, they were put to trial and prosecution was called upon to lead its evidence. During (de novo) trial of the sessions case, due to reframing of charge on 16-6-1998, which virtually commenced after more than three years of the occurrence, the prosecution in order to prove its case, examined 22 witnesses and on the basis of material collected by the Investigating Officer during the investigation of the crime, relevant documents marked Ex-PB to PY were produced. All the prosecution witnesses were cross examined by different counsel representing the accused before the trial Court. Particularly P. W.15, Abid Ali and P.W.18 Sardar Muhammad Ali Khan, S.I were subjected to lengthy cross examination by the defence counsel, being the eye-witness and 1.0 of the crime. After completion of prosecution evidence, section 342, Cr.P.C. Statements of all the three accused, appellant (Muhammad Daud), Gohar Sultan (acquitted by the appellate Court) and Shajar-ul-Haq alias Feroz (acquitted by the trial Court) were recorded on 22-1-1999, wherein they denied the whole case of prosecution and pleaded their innocence. 6. On conclusion of proceedings in the sessions case, the trial Court passed its impugned judgment dated 29-1-1999 in Sessions Case No,30 of 1996, arising out of above referred F.I.R. No,497, wherein it concluded that due to insufficiency of evidence, the prosecution had failed to prove the guilt of accused Shajar-ul-Haq beyond reasonable doubt, therefore, he was acquitted of all the charges. As against it, the present appellant and Gohar Sultan, (who was acquitted by the appellate court) were found guilty for committing qatl-e-amd of Muhammad Khurshid in furtherance of their common intention as well as his abduction, thus, under section 364, P.P.C. They both were awarded imprisonment for life with fine of Rs,30,000 and in default to undergo R.I for one year. In addition to it appellant and co-accused Gohar Sultan were also convicted under section 302-(a), P.P.C. And awarded death sentence. The benefit of section 382-B, Cr.P.C. Was, however, extended to them. 7. The two appeals, preferred by the present appellant and other convict-Gohar Sultan; the Criminal Revision preferred by Mst. Askar Jan against the acquittal of Shajar-ul-Haq and non-
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awarding of compensation, as well as the murder reference made by the trial Court, were heard together and disposed of by a learned Division Bench of Lahore High Court vide its impugned judgment, whereby, the appeal preferred by convict Gohar Sultan was allowed and he was acquitted from all charges, while the appeal preferred by present appellant and revision petition preferred by Mst. Askar Jan were dismissed, and murder reference against the appellant was answered in the affirmative. 8. Sardar Muhammad Latif Khan Khosa, learned counsel for the appellant in Criminal Appeal No,252 of 2005 and for respondents Nos.1 and 2 in other connected Criminal Appeal No,251 of 2005 made his submissions with detailed reference to the depositions of various prosecutions witnesses, particularly P.W.18, Sardar Muhammad Ali Khan, S.1, Investigating Officer of the crime and the only alleged eyewitness, P.W.15 Abid Ali, to show that the evidence adduced by prosecution suffered from material contradictions, therefore, on the basis of such weak evidence, conviction and sentence awarded to the appellant Muhammad Daud is unwarranted by law. In support of his arguments, learned counsel made reference to the case of Wazir Muhammad v. The State (2005 SCM R 277) which lays down that fundamental principle of universal application in the case dependent on circumstantial evidence is that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt. 9. Precisely, submission of Mr. Latif Khosa was that there was no credible ocular or circumstantial evidence available with the prosecution to prove the guilt of the appellant beyond reasonable doubt, thus it was a fit case for his acquittal. 10. Conversely, Mr. M. Bilal, Sr. ASC, arguing the case on behalf of the appellate Mst. Askar Jan, contended that the case of prosecution against the present appellant Muhammad Daud as well as other convict Gohar Sultan, who has been acquitted by the appellate Court, was fully proved from the prosecution evidence, on the basis of ocular testimony of P.W.15, Abid Ali and strong circumstantial evidence in the form of recovery of dead body of the deceased at his instance, so also the recovery of crime weapon and other incriminating material as per Exhs-PB-1 to PE, etc. Precisely, his submission was that the trial Court-had thoroughly examined the whole evidence adduced by the prosecution to reach at the conclusion that the guilt of the appellant Muhammad Daud and respondent No,2, Gohar Sultan was fully proved, therefore, such findings, being based on proper and careful appreciation of evidence, keeping in view the section 342, Cr.P.C. Statements of the accused persons, called for no interference from the High Court in the criminal appeal, on mere conjectural discrepancies, having no material bearing on the prosecution case. Moreso, when due to the conduct of appellant and other accused persons, who remained absconding, proceedings in the Sessions Case were delayed and prosecution evidence was recorded after almost 4/5 years of the occurrence. Further submission of the learned counsel was that the minor discrepancies in the prosecution evidence shown by the learned counsel for the appellant were bound to occur as a natural phenomenon when the witnesses were examined by the Court after a long time of the occurrence. In the end learned counsel also strongly pressed Criminal Appeal No,251 of 2005 for seeking reversal of the findings of the appellate Court; conviction of accused Gohar Sultan acquitted by the appellate Court by extending him the benefit of doubt, and for awarding of reasonable compensation to the legal heirs of deceased Muhammad Khurshid, which is mandatory in nature in terms of section 544-A, Cr.P.C. 11. Mian Asif Mumtaz, DPG for the State fully supported the submissions of Mr. M. Bilal, Advocate and contended that not only the conviction awarded to the present appellant Muhammad Daud should be upheld but the Criminal Appeal No,251 of 2005, preferred by the mother of deceased Muhammad Khurshid should also be allowed, as the acquittal of other convict Gohar Sultan,
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ordered by the High court, is result of misreading and non-reading of evidence, otherwise, on record there was sufficient evidence against him to show that he was the main planner and culprit of the crime, who had hired the services of his nephew Muhammad Daud for his nefarious design and grabbed money after the murder of an innocent person, for which unshaken evidence of one independent eye-witness was more than sufficient to prove their guilt. In support of his arguments that in the present case, in view of strong circumstantial evidence and the evidence of eye- witness, P.W.15, the guilt of appellant Muhammad Daud and respondent No,2, Gohar Sultan was fully proved, and they were not entitled for any latitude in the matter of sentencing, he placed reliance on the case of Inayatullah v. State (PLD 2007 SC 237) which lays down the principle that generally capital punishment can not be awarded to accused person on the basis of circumstantial evidence, however, if the pieces of circumstantial evidence collected during investigation were put in a juxtaposition, which brings his case in the area where accused was connected with the commission of offence, coupled with the fact that prosecution witnesses were disinterested, then on the basis of such strong circumstantial evidence, capital punishment could be awarded. 12. We have carefully considered the submissions made by the learned counsel for the parties and with their able assistance, gone through the bulky record of Sessions Case No,30 of 1996, arising out of F.I.R. No,497 dated 18-10-1994, and also the consolidated paperbook in Criminal Appeals Nos.19/20 of 1999 prepared before the Lahore High Court. 13. The case of prosecution mainly hinges upon the testimony of the P.W.15, Abid Ali, who was driver of the Carry Van RIP-1640, used by the accused persons, including the present appellant, for moving from one place to another in the company of deceased Muhammad Khurshid. It will be thus proper to discuss the veracity of the deposition of this witness, who was, prima facie, not only natural witness of the occurrence but also an independent one, being hired by the co-accused Gohar Sultan for his travelling purposes. Said witness in his examination-in-chief has stated as under:-- "On 17-10-1994 I used to drive Carry Van RIP/1640. It was owned by Malik Tahir. I. Used to drive in the area of Hasan Abdal. On 17-10-1994 Gohar Sultan accused came to me at Hasan Abdal and he hired my above mentioned Suzuki Carry. He asked me to go towards Haripur. I proceeded little bit towards Haripur on Ahmed Din Road, accused Gohar Sultan boarded two bailchas and two iron boxes. Daud accused also boarded the pickup from there. I enquired from him as to why he had boarded the said articles, he replied that these were to be given to someone. I proceeded towards Haripur Road and when we reached at a place known Lab. Thathoo. The accused persons got the pickup stopped there and met a person there. We then came back to POF Hotel at Wah Cantt. It was about five PM. Gohar Sultan accused went inside the hotel. After a little while, he came out and asked me to take him to Aslam Market Wah Cantt. We went there and he met there a person namely Shajrul Haq who is present today in Court. We then came back to POF Hotel Wah Cantt. Gohar Sultan accused went inside the POF Hotel. After a little while he came along with a beard person whose name later on was disclosed Khurshid. I, Daud, Gohar Sultan accused persons and said Khurshid boarded the pickup. Gohar Sultan asked me to go towards Hattar. Gohar Sultan accused boarded the pickup with me on the front seat, Khurshid deceased and Daud accused boarded the rear seat of the pickup. When I reached at Mohra Hasru. Gohar Sultan asked me to turn the pick up to his land where the buldozer was operating. We went to the said place where the buldozer was being operated. We came back and boarded the Pick-up again. Gohar Sultan accused asked me to go towards Barrier No,4 to reach Hattar. I then went on Plaser Road. When I turned the pick up towards Hattar on the Plaser Road, a jungle came there. Gohar Sultan accused got the Pick-up stopped on the pretext that he wanted to go to urinate. Gohar Sultan, Khurshid deceased and Daud accused alighted from the pickup. Gohar Sultan and Daud both accused
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persons also lifted the bailchas from the Pick-up, I enquired that why the bailchas were picked up. Gohar Sultan replied that since there was a danger of wild animals, therefore, they had picked up their bailchas. Gohar Sultan accused asked me to turn the beams of the vehicle towards jungle which were enlightened. I turned the face of the vehicle towards jungle. Gphar Sultan accused started beating the deceased Khurshid. Stated again that Daud also started beating. I ran from there on foot. The vehicle remained standing there. I came to my house. I informed my father and my brother and reported the matter to the Police. The name of my father is Ghulam Farid and name of my brother is Bukhsheesh Ellahi (P.Ws. Given up)." 14. In the light of above stated facts by P.W.15, Abid Ali, he was firstly cross-examined in detail by the counsel for the appellant, thereafter, by the counsel for the co-accused Gohar Sultan and lastly by the counsel for third accused. Shajar-ul-Haq, but all of them failed to bring out anything material from his mouth to show that either he was a setup witness or that he was having any motive for false implication of accused in the commission of crime. In this regard findings of the appellate Court contained in paragraph 15 of the impugned judgment, seems to be unimpressive and faulty, as mere non holding of driving license by P.W.15 Abid Ali, or happening of things in one manner and not the other, which might have been more desirable, was not significant enough to discredit his whole testimony, which was to be gauged as a whole, keeping in view that the incident had occurred on 17/18-10-1994 and his evidence was recorded before the Court on 18-7-1998. The involvement of present appellant in the commission of crime, further finds support from the recovery of dead body of deceased Muhammad Khurshid as well as recovery of other incriminating material i,e, iron box, shoe of the deceased, spade, blood stained earth, snatched money, etc, which, taken together with other documentary and oral evidence, furnished a complete chain of events, lending full support to the case of prosecution about the manner of occurrence. Although the learned counsel for the appellant attempted to discredit the case of prosecution on the basis of some minor discrepancies in the evidence of prosecution witness, but in our opinion those are not substantive enough or material to justify or create reasonable doubt in the case of prosecution about the involvement and guilt of appellant and respondent Gohar Sultan in the commission of the crime. Learned counsel for the appellant was specifically confronted about the independent status of P.W.15 in the whole occurrence, but he could not offer any plausible reply to meet this situation. 15. Even at the cost of repetition, it will be worthwhile to mention here that in a situation where evidence of an independent and disinterested witness is recorded after 4/5 years of the occurrence, some discrepancies in the date and timings as regards progress in the investigation of crime and happening of events etc. Are bound to occur, but the same cannot be considered fatal to the case of prosecution, as such conduct will be close to natural human behaviour; rather it would be unnatural and extraordinary if a person, discloses the exact time and date of happening of each and every event., which has occurred during the investigation of a crime four/five years ago. 16. As evident from Exh.PN (site sketch) the place of occurrence and the place of recovery of dead body, though in close proximity, but were two different places. It, therefore, follows that a person who knew the place of occurrence may not have any knowledge about the place where the dead body was buried. In the instant case, P.W.15, has categorically stated in his deposition that while the appellant Muhammad Daud and co-accused Gohar Sultan were inflicting blows at the deceased with their respective bailchas, due to "Ialkara" by them, he ran away from the place of occurrence. It is, thus, reasonably clear that he did not know where, after his murder, the dead body of deceased Khurshid was buried concealed by the two culprits. Indeed, it has come in the E deposition of only independent witness of the occurrence P.W.15 Abid Ali that he, during interrogation by police, had disclosed them that he knew the place of occurrence, but in case, for
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any reason, the police did not act promptly on such information or there was any other minor lapse in the working of the Investigating Officer, complainant party cannot be penalized for it. 17. It is sufficiently established from material available on record that it was only the appellant Muhammad Daud, who, before recovery of dead body, knew the place where the dead body of deceased Khurshid was buried by him and co-accused Gohar Sultan, therefore, recovery of dead body by the police at his pointation, irrespective of some discrepancies in its timing, is strong circumstantial evidence against him for which there is no plausible explanation in defence offered by the appellant. Similarly, the fact that one of the P. Ws. Stated in Court that on the spot one hand of deceased was visible is of no significance, except to show that such exercise of hiding the dead body of the deceased was hurriedly undertaken by the culprits. Even otherwise, nothing has come on record to show the manner and the extent in which one hand of the deceased was visible. Admittedly, dead body of deceased Khurshid was recovered from a ditch, thus,…
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