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Petitioner: KHURSHID VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Fazal Ilahi Khan, Mukhtar Ahmed Junejo, Ajmal Mian Title: KHURSHID vs THE STATE Case No.: Criminal Appeal No,292 of 1994 Criminal Appeal No,23 of 1991 Date of Judgment:1996-01-28 Reported As: PLD 1996 Supreme Court 305 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' AJMAL MIAN, J.--By a short order of majority of even date,. We have dismissed the above appeal arising out of a Jail Petition. These are the reasons pursuant to the aforesaid short order. 2. The appellant, Khurshid and the co-convict, Habibur Rehman, were convicted by the Additional Sessions Judge-I, Haripur, in Sessions Case No,15/8 of 1989 under section 302/34, P.P.C. And were awarded death sentence and to Tay fine of Rs,20,000 each which, if recovered, was to be paid to the legal heirs of the deceased. Muhammad Fayyaz son of Feroz Muhammad, through his judgment dated 3-7-1991. They were also convicted under section 377/34, P.P.C. And were awarded sentence of five years' R.I. Each and to pay a fine of Rs,5,000 each, or in default of payment of fine, to undergo further R.I. Of one year. Against the above judgment, the two convicts filed Criminal Appeal No,23 of 1991, whereas the learned Additional Sessions Judge, Haripur, made a reference, namely, Murder Reference No,11 of 1991 under section 374, Cr.P.C. The deceased's father and complainant, Feroz Muhammad, filed Criminal Revision No,26 of 1991 for the enhancement of sentence on the above second count under section 377, P.P.C. He also prayed for payment of compensation under section 544-A, Cr.P.C. 3. The above three matters were taken up by a Division Bench of the Peshawar High Court and were disposed of by a common judgment dated 17-1-1994, whereby death sentence awarded under section 302/34, P.P.C. Was substituted by life imprisonment in respect of both the convicts. The convicts were ordered to pay compensation under section 544-A, Cr.P.C. Amounting to Rs,20,000 each to the legal heirs of the deceased. They were also given the benefit of section 382, Cr.P.C. The conviction and sentence in respect of above second count were maintained.
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4. The present appellant sent a Jail Petition which was granted to consider the question, whether the evidence brought on record was sufficiently strong to connect the appellant with the crimes beyond reasonable doubt. It seems that the other co-convict, Habibur Rehman, has not sent any Jail Petition nor he has filed any Criminal Petition. 5. The prosecution case was that the present appellant and the co-convict, Habibur Rehman, hired a Suzuki Pick-up No,ADA-5237 at Pathan Chowk, which was owned by P.W.7 Banaras Khan and of which the deceased was the driver. On 15-5-1988 in the evening at about 6-30 p.m. The deceased before taking the appellant and the co-convict to the place of destination came to his father's house with the two convicts, who were sitting with him on the front seat of the Suzuki Pick-up, and informed him that he was hired by the above two convicts and he was going out. It was also the prosecution case that at about 10-00 p.m. The appellant and the co-convict along with Mirza Shaukat, Advocate, came. To the Police Station Kot Najibullah in the above Suzuki Pickup, where Maghfoor-ur-Rehman, S.H.O was present and who was about to leave for patrolling. They informed him at about 4-00 p.m. The same evening that the two convicts, present appellant Khurshid and his co-convict Habibur Rehman, had boarded the above Suzuki Pick-up for journey to Rawalpindi. It was further alleged that besides them three or four persons, whom they did not know, also boarded the said Suzuki Pick-up. It was also alleged that when Suzuki Pick-up crossed the Village Mang, the driver turned the vehicle towards the jungle where a scuffle started between the driver on the one side and the aforesaid unknown persons on the. Other side and in that process the appellant received injuries in the shape of fractures of his arm and leg. Maghfoorur Rehman, S.H.O. Prepared the injury sheet of the appellant and sent him to the Civil Hospital for treatment; whereas he took the co-convict Habibur Rehman to the place of incident which was located in Jungle 'Kali Tarar' where he found the dead body of deceased Muhammad Fayyaz lying in a ditch. On examination he found stab injuries on the person of the deceased which caused the death. He sent the dead body to the hospital through P.W. Ali Asghar, F.C. No,1190. After visiting the site he was of the view that the offence was committed by the appellant and the co-convict. He, instead of recording the F.I.R. As stated by the appellant and the co-convict, prepared a "Murasila" which he sent through Constable Muhammad Sabir Sultan, F.C. No,1160 to the S.H.O. Police Station Khanpur, within whose jurisdiction the place of occurrence was located. On the basis of the above "Murasila", F.I.R. No,98 was registered on 16-5-1988 at 1-00 a.m. In the morning by Fazalur Rehman, M.H.C. Police Statfon Khanpur. The investigation was conducted besides above Maghfoorur Rehman by P.W.12 Muhammad Fareed, who prepared various "Murasilas" and obtained urethral and paraurethral swa bs of the two convicts. P.W.I2 Muhammad Fareed also secured blood-stained clothes of the two convicts and secured blood-stained earth as well. The co-convict Habibur Rehman led to the recovery of a blood-stained dagger from a bush in the jungle. All the above articles were sealed in parcels. The appellant was examined by P.W.11 Dr. Tariq Qureshi, whereas the postmortem of the deceased was carried out by P.W. 13 Dr. Muhammad Ikramullah, who found the following external and internal injuries on the person of the deceased:-- "External injuries: (1) Stab wound right cheek 1 in number 1" x 1/2" x skin and muscle deep, bled profusely. (2) Stab wounds right chest back side two in number penetrating the thoracic cavity 1-1/2" x 1" and 1" x 1/2". (3) Stab wounds Tight buttock four in number skin and muscle deep bled profusely of different sizes 1/2-2" and 3/4-1". (4) Stab wound right thigh back skin and muscle deep bled profusely 1" x 1/2". (5) Stab wound left buttock skin and muscle deep 2" x 1/2". (6) Stab wound on epigatrium penetrating the abdominal cavity. (7) Stab wound right arm one in number 1" x 1/2".
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(8) Stab wound left thigh lateral aspect two in imber 2" x 1/2". ' On internal examination the doctor found throax wall, right pleaurae, right lung, abdominal walls, peritonium, mouth and liver injured. Stomach was intact and full of food material." ' The swa bs were taken from the anus of the deceased. The deceased's clothes were also secured. The same were sealed in parcels. The above sealed parcels containing above items were sent to the Chemical Examiner, who submitted his report in the affirmative. Prosecution produced as many as 13 witnesses, whereas the defence examined one witness D.W.1. The two convicts in their statements under section 342, Cr.P.C. Denied the commission of the above two offences for which they were charged. The plea raised by them was that the police in order to save their skin falsely implicated them in the case. 6. There was no direct evidence in the case. However, the trial Court, after analysing the evidence brought before it, concluded that on the basis of the same the prosecution was able to prove the case against the appellant and the co-convict, Habibur Rehman, beyond reasonable doubt. It, accordingly, through the above judgment dated 3-7-1991 convicted the two accused and awarded the aforesaid sentences. The learned Division Bench of the High Court re-appraised the circumstantial evidence and concluded that there was more than sufficient circumstantial evidence to connect the appellant and the co-convict with the commission of above two offences. It also examined the defence plea in juxtaposition with the circumstantial evidence and concluded as follows:-- "(12)The appellants have adopted a peculiar story with regard to happening on the spot at the time of occurrence after admitting their presence on the spot at the relevant time. When we put the two versions in juxtaposition we do not feel any hesitation in rejecting the version of the appellants on the reasons that in the first instance how one can believe that three/four persons boarded the Suzuki with the intention of committing robbery and they were empty-handed and yet they had the courage to rob young men equal in number with them. Secondly, it is interesting to note that no one has been robbed nor have the appellants alleged that money or other valuable was taken away from them by the so-called 'unkown culprits', so much so that the Suzuki Van too, was not snatched away although it was in perfect working condition as it was driven from the spot to the hospital. The guilty conscience of the appellants is further proved by the fact that instead of informing police or going to the hospital, which should have been the natural conduct in ordinary course of life, they approached a Practising Lawyer which fact leads on to the irresistible conclusion that they had something serious on their mind which they wanted to set right before approaching the law enforcing agency. Furthermore, they have stated that some cases of Haraba had taken place and in order to cover the failure in unearthing the culprits in these cases the I.O. Dishonestly mounted the present case over the heads of the appellants. This proposition is totally devoid of facts because the appellants have brought nothing concrete on record to support this contention. Above all that, it does not appeal to common sense that the I.O. Would have concocted a false case against the appellants when there has been no enmity between them nor will this case of murder and sodomy give any benefit in a case of Haraba committed earlier." ' Besides the, above reasoning, the High Court has also relied upon the following:-- (i) That the deceased was last seen with the two accused persons, which fact was testified by. P.W.8 Muhammad Feroz Khan, who identified the' two accused persons on the very night when he saw them in the hospital; (ii) that the seats of the injuries Nos.3 and 5 were on right buttock and left buttock respectively, whereas injury No,4 was on the back of right thigh and injury No,8 on the lateral aspect of left thigh, which indicated that the deceased resisted the attempt on the part of the two accused to force him to lie prostrate on the ground and in that process, the accused inflicted the above injuries and the appellant received his injury;
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(iii) that the clothes secured from the two accused persons and the deceased persons and the deceased and urethral and paraurethral swabs of the two accused persons and the swabs obtained from the anus of the deceased, according to the Chemical Examiner's Report, contained semen and the clothes were also blood-stained. The blood-stains on the accused persons' clothes were of the group of the deceased; (iv) that P. W.11 Dr. Tariq Qureshi on the query of the Investigating Officer certified that present appellant was aged about 26 years and was capable of performing sexual intercourse and his penis was carrying the marks of rape at his time of examination; (v) that the co-convict Habibur Rehman led to the recovery of the dead body of the deceased from jungle; (vi) that the co-convict Habibur Rehman led to the recovery of bloodstained dagger from a bush in the jungle, which was not accessible to the public as it was at an isolated place as indicated from the evidence on record; and 4'(vii) that the two accused persons along with the above Advocate, Mirza Shaukat, came to the Police Station in the aforesaid Suzuki Pick-up, of which the deceased was the driver. 7 The learned counsel, Mr. Sardar Muhammad Ghazi, who has appeared for the appellant, is unable to demonstrate that the reasoning found favour with the two Courts below suffer from any legal infirmity or the inferences drawn by them from the circumstantial evidence brought on record are not warranted in law. 8. Before the High Court it was urged that there were no marks or violence on the anus of the deceased and, therefore, the offence of sodomy was not committed. The above contention was repelled by the High Court as under:-- (18) The contention of the learned counsel for the appellants, while quoting from Modi Text Book, that in case of commission of sodomy there should have been internal and external injury on the anus of the deceased or at least there should have been laceration, lubrication and marks of violence on the anus of the deceased, is not of much force because it has never been alleged by the prosecution that the aggressors had practically succeeded in penetrating their respective penises into the anus of the deceased. When we see the whole scheme of happenings it appears that, through and through, there was a struggle between the deceased and the assailants. This is apparently because the assailants (the appellants) were trying to overpower the deceased for commission of sodomy while the latter was resisting this attempt with the result that the appellant chose to inflict the dagger-blows on him. In such a situation it was humanly not possible for the appellants to effect penetration into the anus. So far as the offence of sodomy is concerned it is complete even without penetration into the anus." 9. We now revert to the case-law in order to examine, whether the judgment under appeal is in consonance with the law enunciated by this Court as to the evidentiary value of circumstantial evidence. (i) Allah Ditta v. The State PLD 1958 SC (Pak.) 290; ' in which the facts were that the appellant was convicted for the murder of Bahara as he suspected that his wife Mst. Miran had illicit relations with him. The deceased was last seen inter alia with the appellant. The appellant also led to the recovery of the dead body. He also produced a spear-blade which could have been used for causing injuries. This Court, while maintaining the conviction by the Courts below, observed as follows:-- "When in addition, Allah Ditta on the same day produced the spear-blade which is a weapon which could have been used for causing the injuries found on the dead body, it seems to us that bearing in mind the very natural way in which all the evidence in the case has appeared, without loss of time or delay such as might indicate the possibility of fabrication a chain of evidence is established against him upon which a strong case for direct participation in the murder of Bahara
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can justly be based. In view of the fact that all the evidence is circumstantial it is necessary that cumulatively its effect should be to exclude any reasonable hypothesis of the innocence of the accused. Here, Allah Ditta made no attempt to raise any plea in defence beyond that of mere denial, or to rebut the evidence led against him. The learned counsel on his behalf attempted to put forth a hypothesis that, the motive apart, the remaining facts established against Allah Ditta might prove no more than that he had received information of the location of the dead body and of the spear from some actual participants in the crime, say one of his brother-in-law. On this point, the trial Judge has remarked as follows:-- 'How could he by any chance know that the dead body was buried at that place and the spear- blade was lying at another place particularly when the land where the dead body was buried and the land on which the was standing were neither in his occupation nor owned by him." (ii) The State v. Manzoor Ahmad PLD 1966 SC 664; ' In the above case, the respondent, Manzoor Ahmad, was convicted for the murder of Shirin Khan by the trial Court. He was sentenced to death by the trial Court on the basis of circumstantial evidence. The prosecution had relied upon the following facts:-- "(1) that Manzoor Ahmad was carrying on a love affair with Saadat Sultana and wanted at one time to marry her, (2) that as his proposal for the hand of the girl was turned down and she was betrothed to deceased, there was serious jealousy between him and the deceased, particularly, since the Mangni of Mst. Saadat Sultana; (3) that the girl was even thereafter writing to him and meeting him and that he was not discouraging her from doing so; (4) that some letters and photographs written by the girl were still in his possession and the deceased was keen to get them back; (5) that on the day in question the respondent was in exclusive occupation of the room in Siraj Building, as Zakir Hussain had left for Montgomery on the 27th of February, 1959, and did not return till after the murder; (6) that the respondent on the 1st of March, 1959, called the deceased from the house of his maternal-uncle and was seen entering Siraj Building soon after 11 or 11-30 a.m. Along with the deceased; (7) that the respondent was about an hour or so later seen to leave the building alone; (8) that Shirin Khan was last seen alive in the company of the respondent when they both entered Siraj Building; (9) that the dead body of deceased was found in the room in occupation of Manzoor at about 10 p.m. Of the same day, and . (10) that the respondent absconded from Lahore leaving his belongings in the room occupied by him and remained absconding for over two years for which he has offered no satisfactory explanation." ' However, the High Court upon appeal set aside the above conviction. This Court allowed the acquittal appeal and convicted the respondent under section 304, Part -I, P.P.C. And awarded seven years' R.I. Hamoodur Rahman, J. (as his Lordship then was) commented upon as follows on the question as to how a Court should examine the circumstantial evidence in order to ascertain the factum, whether the charge has been proved or "Even in a case of this kind where there is no direct evidence to show as to in what precise manner the victim came to be killed the Court has yet to discharge its onerous duty of determining whether the death was caused by the felonious act of some other persons and if so, what offence, if any, has been committed by such a person. It is not sufficient in such a case to say that since there is no direct evidence to connect any one with the felonious act the guilt cannot be fixed. It is precisely in such cases that I conceive it to be duty
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of the Court to examine the probabilities in the light of the indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place the articles found there, the motive for the crime and the other surrounding circumstances proved. This is what I now propose to do." (iii) Allan ditto v. The State 1968 SCM R 378; in which the conviction of the petitioner under section 3p2, P.P.C. Was founded on the following circumstantial evidence:-- (i) that the deceased was last seen with the accused; (ii) that the accused had the exclusive knowledge of place where body of the deceased was buried; (iii) that recovery of articles of deceased at the instance of the accused; and (iv) that the clothes secured from the person of the accused stained with blood. ' This Court, while declining leave to appeal, concluded as under:- "The learned counsel has pointed out that the place where the dead body was lying buried, had been freshly sprinkled with water and two fingers were visible, hence it could have been easily seen by any one passing by that way. He has, therefore, attempted to argue that the story that the dead body was recovered at the instance of the petitioner was false. He has also contended that the other circumstances which the Courts below relied were also not sufficient to establish that this petitioner was responsible for this murder. ' We are unable to accept the above contentions. We are satisfied that the deceased was last seen with the petitioner; that the petitioner has exclusive knowledge of the place where the body was lying buried; that the sleepers of the deceased were recovered from the well at his instance and that human blood present on the clothes that were secured from his person. Courts below have rightly held that the above circumstances fully bring home the charge of murder to the petitioner." (iv) Allah Ditta v. The Crown 1969 SCM R. 558; ' in which the facts were that the appellant was convicted for the murder of Mst. Sairan on the basis of circumstantial evidence that the deceased was last seen besides having motive. The background of the case was that a few days before the material date Mst. Sairan had sold a buffalo on credit to the appellant and that at the time when she met her death, she was attempting to get the buffalo back under pressure of her parents. The same was recovered by her father independently on the morning of the date of incident. The body of Mst. Sairan was found after some delay from the jungle. She was allegedly seen entering in the jungle in the company of the appellant. This Court maintained the above conviction and while dismissing the appeal observed as follows:- "Msf. Sairan went on towards the well, and Fajja proceeding on his way, looked back after covering another 100 Karams, probably in order to see if Allah Ditta was following him. It was then that he saw Allah Ditta and Mst. Sairan standing together, nor far from the well, and quite evidently, his identification of the two persons is worthy of implicit acceptance. The time coinciding with that at which Sher Muhammad and his companions saw the couple entering the Jungle, even if these three persons could not be absolutely sure of the identity of the woman, since they were certain of the identity of Allah Ditta, their testimony read with that of Fajja places the matter beyond doubt. His reticence towards the deceased's brother may well have been due to the suggestion of her adultery, which receives support from the fact that her trousers were found at a distance from the body. ' Other circumstances of implication have also been accepted by the High Court, but with these it is unnecessary for us to deal. The two matters we have dealt with, coupled with Allah Ditta's failure to furnish an explanation for the disappearance of Mst. Sairan who was last seen alive in his company
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he denied the allegation are in our view amply sufficient to sustain the findings of the Courts below, and we accordingly dismiss the appeal." 10. From the above reports, it is evident that the circumstance, namely, that the deceased was last seen with the accused persons is a reliable piece of evidence if corroborated by other pieces of circumstantial evidence which are interlinked and which clearly connect the accused persons with the commission of the offence charged with. In the present case the quantum and 'the nature of circumstantial evidence is far better than the cases referred to hereinabove. In the case of The State v. Manzoor Ahmad (supra), this Court has even set aside an acquittal judgment of the High Court though the conviction was founded on the circumstantial evidence which included inter alia the fact that the deceased was last seen with the accused person. 11. I may observe that while appraising the circumstantial evidence the Court is to keep in mind the location of the incident If the place of incident is a place where no witness was available and the accused had the exclusive knowledge about the incident, the simpliciter denial on the part of the accused will not be sufficient to nullify the circumstantial evidence of the nature which directly connects him with the commission of the offence charged with. But he should raise a plea of the nature which on being tested on the touchstone of probabilities warrants a reasonable hypothesis of the accused's innocence. I may further observe that in criminal cases though the Courts are supposed to follow the well- settled principles of Criminal Jurisprudence, namely, that an accused person is presumed to be innocent that the prosecution is to prove a criminal case against an accused person beyond reasonable doubt and in case two views are possible; the view which favours the accused person, should be preferred; and that all benefit of doubts should be extended to the accused, by, at the same time, the Courts should also take notice of the changing circumstances of the present days. Even in cases where eye-witnesses are available they refuse to appear as witnesses in support of the prosecution case: either because of fear or on account of being won over by the accused party. The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the investigating agency/prosecution, provided the same…
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