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Petitioner: THE STATE VS Respondent: MUHAMMAD SHARIF and 3 others MUHAMMAD YASIN
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Irshad Hasan Khan, Muhammad Munir Khan Title: THE STATE vs MUHAMMAD SHARIF and 3 others MUHAMMAD YASIN Case No.: Criminal Appeals Nos. 55 of 1992 and Criminal Appeal No, 303 of 1993, Date of Judgment:1995-01-23 Reported As: 1995 SCMR 635 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' SAJJAD ALI SHAH, C.J.---Six accused were put on trial in the Court of Additional Sessions Judge, Lahore in Sessions Case No, 27 of 1987, Trial No,26 of 1987 for offences under sections 302, 148 and 149 read with sections 109 and 120-B, P.P.C., which had arisen from F.I.R. No, 184/86 registered at Police Station Naulakha, Lahore on 17th May, 1986 at 6-45 a.m., showing the incident having taken place on the same date at 6-00 a.m. At Circular Road, near shrine of Pir Bohran Shah in Lahore, in which Mst. Sakina Bibi was done to death having sustained twenty incised wounds and two by blunt weapons. Trial Court at the conclusion of the proceedings, vide judgment dated 29th September, 1988, acquitted four accused, namely, Muhammad Sharif, Fazal Ellahi, Muhammad Ishaq and Bashir Ahmad, of all the charges levelled against them by the prosecution by giving them benefit of doubt. However, two accused, namely Falak Sher and Muhammad Yasin were convicted for offence under section 302/34, P.P.C. And sentenced each to life imprisonment and fine of Rs,10,000 or in default additional R.I. For two years. They were directed to pay compensation of Rs,25,000 each to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default undergo R.I. For six months. However, they were acquitted of all the remaining charges under sections 120-B and 148 read with section 109, P.P.C. 2. Falak Sher and Muhammad Yasin filed Criminal Appeal No, 1054 of 1988 in the High Court against their conviction and sentence, which was disposed of vide judgment, dated 11th November, 1992 in terms that conviction and sentence of Falak Sher was upheld, whereas Muhammad Yasin was acquitted. Criminal Appeal No, 303/93 pending in this Court is filed by the State against the acquittal of Muhammad Yasin. In the High Court, Criminal Appeal No, 1138/88 was filed by the State against the acquittal of the four accused, mentioned above, which was dismissed vide judgment,
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dated 30th October, 1989 and with leave of this Court Criminal Appeal No, 55/92 is pending filed by the State against their acquittal. Falak Sher, whose conviction and sentence was upheld by the High Court in Criminal Appeal No, 1054/88, filed Criminal Petition No, 62-L of 1993 in this Court which was dismissed and leave refused. Keeping in view such factual background, we have taken up for hearing, after grant of leave, both the Criminal Appeals Nos. 55/92 and 303/93 filed by the State against acquittal of Muhammad Yasin in CrA. 303/93 and Muhammad Sharif and three others in CrA. No, 55/92. 3. The difference between the two criminal appeals before us is that in Criminal Appeal No, 55/92, four respondents named therein were acquitted by the trial Court and against their acquittal the State filed appeal in the High Court, which was also dismissed. It is, therefore, apparent that the two Courts below appraised the evidence against these respondents and have given finding in favour of acquittal and this Court, being the third and final forum, would be chary and hesitant to interfere with the concurrent finding of facts unless there is gross misreading of the evidence that amounts to miscarriage of justice. Whereas, in Criminal Appeal No, 303/93, respondent Muhammad Yasin was convicted by the trial Court and on appeal the High Court has acquitted him. Hence, on the question of appraisement of evidence, findings of the two Courts below are in conflict with each other. Even otherwise, both the appeals before us have been filed against acquittal and in Criminal Appeal No, 303/93 finding of acquittal is given by the High Court. 4. Briefly stated the relevant facts giving rise to these appeals are that three acquitted respondents, namely, Muhammad Sharif, Fatal Elahi and Muhammad Ishaq are sons of Muhammad Din and brothers of Falak Sher, who was convicted by the trial Court and whose appeal in the High Court and petition for leave to appeal in this Court were dismissed. These four brothers are cousins of deceased Mst. Sakina. Remaining two acquitted respondents, namely, Bashir Ahmed and Muhammad Yasin are maternal uncle and brother respectively of Mst. Sakina. Prosecution case is that Mst. Sakina, about 18/19 years before the occurrence, married Abdul Rashid against the wishes and consent of her brother, cousins and other relatives, who bore grudge against her on that account and were on the look-out for an opportunity to take revenge for the disgrace brought upon their family. The incident took place on 17th May, 1986 at 6-00 a.m., when Mst. Sakina alongwith her son, Muhammad Jehangir, came out from her house to purchase vegetables. Complainant Abdul Hameed, who is brother of Abdur Rashid (husband of Mst. Sakina), followed them on his motor-cycle. When Mst. Sakina reached the shop of Muhammad Sharif Milk Seller on Circular Road, all of sudden five accused/respondents, namely, Muhammad Sharif, Fazal Elahi, Muhammad Ishaq, Falak Sher and Muhammad Yasin, armed with Churies with the exception of Falak Sher who was armed with dagger, confronted her. They raised Lalkara saying that Mst. Sakina would not be spared as she had brought disgrace to their family. Saying so, they attacked her with their weapons and inflicted upon her injuries. It is stated that Falak Sher was the first who opened the attack and gave dagger blows on her neck. Then, it was open for all and Muhammad Ishaq gave injuries on her back and left arm; Fazal Elahi gave Chhury blow on her left side of the abdomen; Muhammad Sharif gave Chhury blow on the left side of her back; and Muhammad Yasin continued hitting her on her back and left arm. Eye-witnesses raised alarm but the accused persons threatened them not to interfere and continued assault and thereafter decamped from the spot alongwith their weapons. Mst. Sakina sustained a large number of injuries and died. Complainant Abdul Hameed departed from the place of occurrence for filing of F.I.R.; which he did at Police Station Naulakha at 6:45 a.m. And in the result F.I.R. No, 184/86 was registered. 5. Inspector Muhammad Munir Ahmad, who was on patrol duty, received information about the incident and reached the spot. He prepared injury statement and inquest report, and inspected the spot. He took into possession blood-stained earth and recorded statements of the witnesses. He sent the dead body to the hospital for post-mortem examination. On 27th May, 1986 he arrested
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Muhammad Sharif, Fazal Elahi, Muhammad Ishaq and Muhammad Yasin. Falak Sher was arrested on 10th June, 1986 and while in custody on 20th June, 1986 led to the recovery of the blood-stained dagger, used in the crime, from ceiling of his Baithak in his residential house. Bashir Ahmad was allowed bail before arrest but was formally arrested on 17th June, 1986. Thereafter, investigation was taken over from him by D.S.P. Chaudhry Ghulam Rasool. After completion of the investigation, challan was presented. In the trial Court, as many as fifteen witnesses were examined in support of the prosecution case. P.W.1 is A.S.I. Zaheer Ahmad who dealt with and kept in possession the sealed parcels at the Police Station. P.W. 2 is Muhammad Aslam F.C. Who took the sealed parcel containing crime weapon from the Police Station and delivered the same in the laboratory of the Chemical Examiner at Lahore. P.W. 3 is Maqsood Ahmad F.C. Who delivered the sealed parcel containing the blood-stained earth at the laboratory of the Chemical Examiner. P.W. 4 is Muhammad Feroze Khan S.I. Who arrested Falak Sher on 10th June, 1986. P.W. 5 is Abdul Hamid complainant. P:W. 7 Muhammad Javed and P.W. 8 Muhammad Jehangir (son of the deceased) have been examined as eye-witnesses of the incident. P.W. 6 is Dr. Khalid Aziz, who conducted post-mortem examination on the dead body of Mst. Sakina, aged 42 years. He found on the dead body twenty incised wounds and two abrasions. According to the doctor, cause of death was profused bleeding due to damage of the vital organs. Injuries Nos. 4, 8, 11 and 14 were individually sufficient to cause death in the ordinary course. 6. P.W. 9, Allah Ditta, is witness of recovery of blood-stained earth and last worn clothes of the deceased. P.W. 10 is Hamid-ud-Din who prepared the site plan as Exhs. PE and PE/1. P.W. 11 is Inam Ullah Khan S.I., who wrote the F.I.R., Exh. PA, on the statement of the complainant. P.W. 12 is Ahmad Din who deposed that on the night of 16th May, 1986 at about 10 or 10-30 p.m. He saw and heard Haji Bashir instigating Muhammad Ishaq, Falak Sher, Muhammad Yasin and Fazal Elahi to finish Mst. Sakina as she had brought bad name to their family. P.W. 13 Zulfiqar Khan is witness of recovery of the dagger, P.4, from the ceiling of the residential house of Falak Sher, which was blood-stained and put into a sealed parcel by the Investigating Officer. P.W. 14 is Inspector Muhammad Munir Khan who investigated the case as mentioned above. P.W. 15 is Muhammad Bashir, Inspector/S.H.O., Police Station Mamukanjan, who recorded formal arrest of Bashir Ahmad accused after he was granted bail before arrest by the Court. Prosecution produced in the trial Court reports of the Chemical Examiner and the Serologist with regard to blood-stained earth and the dagger, which were positive. 7. Respondents/acquitted accused persons in their statements under section 342, Cr.P.C. Proclaimed innocence and false implication. Other respondents claimed that respondent Muhammad Bashir was not related to them but otherwise they were related inter se. They all denied participation in the crime. They also claimed false implication in this case for the reason that the complainant suspected that they had pursued the murder case against his brother Abdul Rashid, who was hanged for the murder of one Muhammad Boota. Falak Sher denied recovery of weapon from him and stated that the same was planted by the police at the instance of the complainant party. He, however, admitted his presence at the spot at the time of occurrence but claimed that he did not participate in the assault on the deceased and that his alleged co- accused were also not present at the spot. He stated that in fact one Mustafa alias Musti had caused injuries to Mst. Sakina on provocation and that during investigation this fact was in the knowledge of the police but they did not arrest Mustafa alias Musti because of the influence of the complainant party. Respondent Muhammad Yasin, who is brother of Mst. Sakina, denied the prosecution allegation and claimed that he was not present at the spot and had not participated in the assault. He also stated that he had no grudge against his deceased sister. He adopted the plea of other respondents that Abdul Rashid brother of the complainant was hanged for the murder of Muhammad Boota and the complainant suspected that he had pursued that murder
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case and for that reason he was falsely implicated in this case. Same plea was taken by Muhammad Sharif, Muhammad Bashir, Fazal Elahi and Muhammad Ishaq. 8. Five defence witnesses, namely, D.W.1 Naimat Ali A.S.I., D.W.2 Muhammad Anwar H.C., D.W.3 Muhammad Ayyaz H.C., D.W. 4 Nazir Ahmad, Incharge Head Constable, and D.W.5 Abdul Ghafoor A.S.I. Were examined, who produced F.I.Rs, registered at various police stations in the past during the period preceding the incident in this case. Two witnesses were examined as the Court witnesses. C.W.1 D.S.P. Ghulam Rasool deposed that he was entrusted with the investigation of this case under the orders of the S.S.P. Which he conducted till 12th June, 1986 and that he had not given final opinion about guilt or innocence of any of the accused. C.W.2 is Sardar Saeed Gul Khan D.S.P., who deposed that he conducted investigation of this case partly and challaned all the accused. In cross-examination he stated that as the defence plea raised by Muhammad Sharif, Fazal Elahi, Muhammad Ishaq, Muhammad Yasin and Falak Sher was not sound and convincing, he disbelieved it. He further said in his cross-examination that except Falak Sher, who was in judicial lock-up, all the accused claimed that they had not participated in the assault at the time of the incident. After examination of the Court witnesses, opportunity was given to the respondents/acquitted accused persons who declined to add anything further to their already recorded statements under section 342, Cr.P.C. 9. Trial Court considered the prosecution evidence in juxtaposition with the defence version. It was suggested to complainant Abdul Hameed that deceased Mst. Sakina used to take with her the sister of Mustafa alias Musti to various places and shrines and sometimes they did not turn up for the whole nights, which was resented by Mustafa. That the sister of Mustafa was taken by deceased Mst. Sakina to the shrine of Bohran Shah and Mustafa went there in search of his sister and near Ahata of Nazar Muhammad encountered Mst. Sakina and enquired from her whereabouts of his sister; to which she replied that he should control his sister and that she was not responsible for his sister's acts. That upon this, Mustafa became very furious and started causing injuries to her. The trial Court also noted the fact that Falak Sher admitted his presence at the spot at the time of incident and dagger was recovered from him about which finding of the Chemical Examiner and the Serologist was positive to the effect that it was stained with blood. Keeping in view the evidence produced by the prosecution and the defence version, trial Court came to the conclusion that had the respondents/acquitted accused persons resented her marriage being without their consent with Abdul Rashid, they could have killed her at that time when the marriage took place about eighteen years before the incident. In the final analysis of the evidence, the trial Court convicted Falak Sher and Muhammad Yasin for offence under section 302/34, P.P.C. And ' sentenced them to life imprisonment and fine as mentioned above, and acquitted the remaining accused persons, namely, Muhammad Sharif, Fazal Elahi, Muhammad Ishaq and Bashir Ahmad by giving them benefit of doubt. 10. Against the acquittal of the four by the trial Court as mentioned above, Criminal Appeal No, 1138/88 was filed by the State in the High Court, which was dismissed on the grounds firstly that the dead body was dispatched to the mortuary. At 7-30 a.m. On 17th May, 1986 but the postmortem examination was conducted on the following day at 11-00 a.m. Secondly that complainant Abdul Hameed could not furnish satisfactory explanation about his presence at the scene of the occurrence. Thirdly that Abdul Hameed mentioned in the F.I.R. About the conspiracy but admitted that Ahmad Din or Miraj Din, who informed him about the conspiracy, had not met him before lodging of the F.I.R. Fourthly, that P.W.8, Muhammad Jehangir (son of the deceased) admitted that after marriage of his mother with his father Abdul Rasheed, which took place about 16/17 years before the incident, no untoward incident took place and his mother was not assaulted or
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reprimanded. In such circumstances, false implication due to enmity could not be ruled out and the High Court dismissed the acquittal appeal. 11. Against conviction and sentence by the trial Court, both Falak Sher and Muhammad Yasin filed Criminal Appeal No, 1054/88 and the High Court vide judgment, dated 11th November, 1991 dismissed the appeal of Falak Sher and acquitted Muhammad Yasin for the reason that nothing incriminating was recovered from him. The only circumstance which appeared against Muhammad Yasin was that he was brother of Mst. Sakina who married Abdul Rashid against the consent of her relatives. The High Court held that since the trial Court did not consider this circumstance to be enough corroboration against the other co-accused, who were also related to deceased Mst. Sakina, it was not sufficient corroboration for conviction of Muhammad Yasin as well. It would not be out of place to mention here that Falak Sher, after his appeal was dismissed by the High Court, filed petition for leave to appeal in this Court which was dismissed as stated above. Hence, we do not have to go into the reasons in support of his conviction and sentence. 12. Learned counsel for the State has criticised acquittal of the respondents in both the appeals before us on the ground that there is ocular evidence, which is furnished by the three eye- witnesses whose presence is beyond dispute and that this evidence is further corroborated by medical evidence, which shows that the injuries were caused by sharp weapons, as alleged by the eye-witnesses, and that the number of injuries on the person of the deceased is commensurate with the number of assailants. Further, that there is also evidence of motive as respondents being close relatives of the deceased had resented her marriage with Abdul Rasheed without their consent. 13. We take up for appraisal ocular evidence first. P.W.5, Abdul Hamid, is complainant and eye- witness of the incident. He is brother of Abdul Rasheed who contracted marriage with deceased Mst. Sakina. As per his evidence, Mst. Sakina alongwith her about fourteen years old son Muhammad Jehangir was going to purchase vegetables and he was following them on motorcycle when, near the shrine of Pir Bohran Shah, opposite Muhammad Sharif Milk Seller's shop, she was attacked by the five accused persons who were armed with Chhuris and dagger. This witness has also stated that deceased Mst. Sakina lived in the same house in which he lived and that it was normal for her to go alone to purchase vegetables and sometimes with her son. On the day of incident this witness followed deceased Mst. Sakina and her son and saw the incident. He has explained in his cross-examination that on the day of incident he was going to Mayo Hospital where his daughter Amina was admitted for medical treatment. He also claimed that he had stated so in his statement before the police but when confronted it was found that he had not said so in that statement. Secondly, he has given graphic account of the injuries caused by each of the five accused stating specifically as to who caused injuries to the deceased at what place. Possibility cannot be ruled out that if attack is made with Chhuris and dagger by five persons on a helpless woman, they would form a circle while giving her injuries and other persons, who are at a distance and do not come forward to intervene, would not be able to notice the details as to who caused injury at what place. 14. It is also surprising that this witness did not interfere when his brother's wife was being attacked with Chhuris and dagger by five assailants. Had he been present there, he would have tried to come to the rescue of the deceased and in that effort could have sustained some injuries. At one point in his deposition in the cross-examination, he stated that during the attack he specifically noticed six to ten injuries afflicted on the deceased and the rest of the injuries were caused so rapidly that he could not notice them individually. He further admitted that none of the witnesses, who were present at the spot, physically intervened to rescue the deceased nor did they hurl any brick bat at the accused persons.
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15. This witness denied the suggestion that during investigation D.S.P. Ghulam Rasool opined that only Falak Sher and one Mustafa were guilty and that other accused persons were declared innocent. He stated that he was not joined in that investigation and, therefore, moved an application against D.S.P. Ghulam Rasool. This witness denied the suggestion that during investigation he was asked by Inspector Muhammad Munir Ahmad to take oath on the Holy Qur'an that whatever he had stated in the F.I.R. Was correct and that he refused to take such oath. This witness/complainant was cross-examined at a great length and on several hearings in the trial Court and that lengthy cross-examination mostly covered the point that his relatives indulged in gambling and narcotics and on that account they were involved in several cases in which F.I.Rs, were also filed. 16. It was also suggested to him and he denied that the incident was not seen by any of the witnesses and that the police were informed telephonically and that in the preliminary investigation he as complainant conspired with a gang of criminals and falsely implicated all the six accused persons with the intention to leave nobody behind to pursue their case. This witness also denied the suggestion that he came to know during the investigation that murder was committed by Mustafa alias Musti and that he refrained from implicating him as said Mustafa is his relative and had joined hands with him in disposing of the superstructure over the Nazool land, which was to be inherited by deceased Mst. Sakina after the death of her husband Abdul Rashid. 17. Evidence of the complainant was assessed in the light of the admitted fact that marriage between deceased Mst. Sakina and Abdul Rashid took place without consent of Mst. Sakina's relatives about 17/18 years before the incident and during all this time she and her relatives lived in the same area but no attempt was made to kill her earlier in point of time. One other fact stands out conspicuously whether grievance of the relatives of Mst. Sakina could still persist after her husband Abdul Rashid was hanged to death. It also appears as is apparent from the evidence on the record and the cross-examination of the material witnesses that during investigation several persons came forward to support the defence version that they were not present at the spot at the time of the incident with the exception of Falak Sher, who admitted his presence at the spot and from whom blood-stained dagger was recovered; which was put into a sealed parcel and in respect of which report of Chemical Examiner and Serologist is positive that it was stained with human blood. It is stated that complainant Abdul Hamid was also accused alongwith Abdul Rashid in the case in which latter was sentenced to death. 18. Another eye-witness is P.W. 8, Muhammad Jehangir, who is son of deceased Mst. Sakina. At the time of the incident he was 14/15 years old. He has described the attack by saying that it was opened by Falak Sher, who was armed with a dagger, hitting his mother on clavicle bone and at her back and the neck while the remaining accused encircled his mother and gave her Chhury blows simultaneously. That he and his uncle Abdul Hamid raised alarm but the accused persons after giving her injuries ran away. That his mother died at the spot and that the incident was seen by him, his uncle Abdul Hamid, Shaikh Javed and Saeed alias Kaka Butt. This witness stated that at the time of incident shop of Muhammad Sharif Milk Seller was open but he did not notice whether there was any customer present in the shop or otherwise. He was confronted with his police statement in which he had not mentioned that the incident was seen by Shaikh Javed and Saeed alias Kaka Butt and their names were not mentioned therein. About his uncle Abdul Hameed being eyewitness, this witness was confronted with his police statement wherein name of Abdul Hamid is mentioned but it is not stated that he had seen the incident. This witness also improved his version in the Court by stating in cross-examination that Falak Sher had not caused any injury on the back of the deceased. This witness has admitted in his cross-examination that his mother used to say that her relatives were annoyed with her as she had married against their wishes but no attack
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was made on her when she used to go for shopping some times alone and some times with him in spite of the fact that both the parties lived in the same area. 19. Third eye-witness is P.W. 7, Sh. Muhammad Javed, who claimed to have seen the incident as he was on way to the house of his brother-in-law, situated in Dehli Gate, Lahore. He claimed that when he reached near the Commission Agent Shop of Sharif Milk Seller, he saw Mst. Sakina being encircled by the five accused from whom Falak Sher was armed with dagger while the other four were armed with Chhuris. Falak Sher gave her first dagger blow and then remaining accused persons gave her Chhury blows. Her son Muhammad Jehangir and Abdul Hameed were present at the spot and raising alarm. Incident was seen by him, Saeed alias Kaka Butt, Abdul Hamid and Muhammad Jehangir. This witness explained in his cross-examination that .His house was at a distance of two furlongs from the scene of the offence and that he used to…
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