TALIB HUSSAIN Versus State
ABDULLAH BALOCH, J .--This common judgment disposes of Criminal Appeal No.150 of 2015 and Constitutional Petition No.458 of 2015.
Criminal Appeal No.150 of 2015 has been filed by the appellants Talib Hussain son of Rajab Ali and Muhammad Ali son of Jan Ali against the judgment dated 11th May 2015 (hereinafter referred as, "the impugned judgment") passed by learned Special Judge, Anti-Terrorism Court-I Quetta (hereinafter referred as, "the trial Court"), whereby the appellants were convicted under Section 302(b) P.P.C. read with Section 07 of Anti-Terrorism Act 1997 and sentenced to suffer life imprisonment; under Section 324 P.P.C. read with Section 07 of ATA 1997 to suffer for five years with fine of Rs.20,000/- each and in default of payment of fine they shall further suffer two months S.I. each.
The Constitutional Petition No.458 of 2015 has been filed by the victim Atta Ullah (father of deceased) for enhancement of sentence of the accused (appellants) from life imprisonment to that of Capital punishment.
2. Facts of the case are that on 1st June 2012, the complainant Arshad Iqbal, S.P. Saddar Circle Quetta lodged FIR No.51 of 2012 at Police Station Saddar Quetta, under Sections 302, 324, 427, 34 P.P.C. read with Section 07 of ATA, 1997, stating therein that on the day of occurrence he along with Ameer Muhammad Dasti,- DSP Saddar Circle, I.P/SHO Syed Azhar Hussain Shah of P.S. Brewery Road Quetta and other police officials were on their duty at Spiny Road Quetta, from where the procession of Hazara tribe was on its way to Quetta City. It is further averred that when the procession was crossing the Spiny Road near Jailo Building, where already a vehicle bearing registration No.CL-7200 (white colour) was parked. At about 3.45 p.m. after passing of procession from the concerned area, the vehicle started proceeding towards Spiny Road, but amongst the procession two Hazara tribe men sitting on a motorcycle turned back being armed with weapons and started indiscriminate firing upon the pick-up, wherein two persons who from their appearance appeared to be religious scholars ( ) were sitting, which resulted into causing serious injuries to the driver of the vehicle, while the second person sitting on the front seat luckily escaped any injury, whereafter the vehicle went out of control of the driver and stopped after going on the stones kept besides the road, hence he (complainant) along with DSP Saddar and SHO Brewery Road and with the assistance of other officials apprehended both the accused persons, who on query disclosed their names as Talib Hussain son of Rajab Ali and Muhammad Ali son of Jan Ali, caste Hazara, residents of Hazra Town Quetta and from the possession of both the appellants pistols along with magazine containing live cartridages were recovered.
3. Pursuant to above FIR, the investigation of the case was entrusted to PW-7 Shafqat Mehmood, SI/Investigating Officer (I.O.), who during investigation got prepared the site map; prepared site inspection memo; took into possession the vehicle, motorcycle, pistols along with magazine containing live cartridges and two empties from the place of occurrence; arrested the appellants and subjected them to investigation; the proceedings under Section 174 Cr.P.C. were carried out and in quest report Ex.P/7-B was prepared; took into possession the blood stained clothes of deceased; sent the blood stained clothes, the pistols along with live cartridges and empties to FSL and receipt the analysis report in affirmative; obtained death certificate of deceased. On completion of investigation, submitted the challan in the trial Court.
4. At the trial, the prosecution produced seven witnesses, whereafter the convicts/appellants were examined under Section 342 Cr.P.C. The appellants also recorded their statements on oath under Section 340(2) Cr.P.C., but did not produce any witness in their defence. On conclusion of trial and after hearing the arguments, the trial Court convicted and sentenced the appellants as mentioned above. Whereafter the appellants filed Criminal Appeal, while the victim (father of deceased) filed Constitutional Petition for enhancement of sentences awarded to both the accused (appellants).
5. Learned counsel for the appellants contended that the judgement passed by the learned trial Court suffers from misreading and non-reading of evidence; that only interested witnesses have been produced by the prosecution, thus the prosecution evidence is lacking independent corroboration; that the police has arrested the appellants just to show their efficiency, while the appellants have nothing to do with the alleged offences; that there are many contradictions, omissions and improvements in the prosecution evidence, but the same were ignored by the learned trial Court; that since the appellants were not known to the victim prior to the incident, thus under the circumstances the identification parade of appellants was necessary to have conducted through the PW-1, but this has not been done so; that the defence so taken and established by the appellants have also not been taken into consideration; that such improvements and discrepancies created doubts in the case of prosecution and the learned trial Court has failed to extend the benefits of such doubts in favour of appellants, as such, the judgment impugned passed by the learned trial Court is liable to be set-aside.
6. Conversely, the learned Additional Prosecutor General assisted by the learned counsel for the victim vehemently opposed the arguments so advanced by the learned counsel for appellant and contended that the prosecution has successfully proved its case against the appellants; that the prosecution witnesses have corroborated each other on material counts; that the statements of ocular evidence is supported by medical certificate coupled with the recovery of empties from the scene of occurrence as well as the recovery of crime weapon soon after the occurrence at the spot; that the trial Court after proper appreciation of evidence has convicted the appellants in accordance with law. They supported the impugned judgement, but contended that the learned trial Court without presence of any mitigating circumstances has awarded lesser punishment to both the appellants through the impugned judgement, which requires the interference of this Court by means of modifying the sentences of the appellant from life imprisonment to that capital punishment.
7. Heard the learned counsel and perused the available record. The perusal of record reveals that the prosecution has successfully established the charge against the appellants through cogent, confidence and consistent inspiring evidence recorded by the PWs through ocular as well as medical evidence as well as the recovery of empties from the scene of occurrence and more particularly the arrest of the appellants red-handedly being armed with pistols and also the FSL report received in affirmative that the pistols were in working condition. To substantiate its case, the prosecution has produced seven witnesses. Before dilating upon the ocular testimony, it would be appropriate to first dilate upon the medical evidence.
8. According to PW-5 Dr. Ghulam Haider, Police Surgeon, BMC Quetta, on the day of occurrence at about 4.00 p.m. the deceased was brought before him for examination and after examination, he issued MLC Ex.P/5-A, perusal of which reflect that the deceased had received fire arm injuries on his person i.e. entrance wounds at right side nipple, chest left side and right elbow, while exit wounds on right elbow and left side back chest. PW-5 has opined the probable cause of death of the deceased as damage to the vital organs of thoracic cavity, excessive bleeding and shock. Furthermore, the affirmative FSL report of blood stained clothes that the same are stained with blood. Even otherwise, the defence has not disputed the unnatural death of deceased, but pleaded their false implication.
9. Adverting to the ocular testimony, suffice to observe here that PW-1 Atta Ullah, is the star eye-witness of the case, who was accompanying the deceased in the vehicle being his father and he in his statement before the Court has correctly stated the date, the time of occurrence, the place of occurrence, his arrival along with his son at the place of occurrence in the pick-up and waiting for the procession to proceed ahead and after passing of the procession their proceeding towards the Spiny Road, the sudden return of appellants towards them and making indiscriminate firing with pistols as well as their arrest by the police at the spot red-handedly along with the crime weapons by the police, who were performing their duties for providing security to the procession. PW-1 correctly identified the appellants in the trial Court as the culprits, who made indiscriminate firing upon them, which resulted into martyr of his son Imdad Ullah. This witness was cross examined at sufficient length, but nothing advantageous has come on record in favour of the defence.
10. The complainant of the case is PW-2 Arshad lqbal, S.P. Saddar Circle Quetta, who at the relevant time .alongwith other police officials were present in his duty for providing security to the procession of Hazara Tribe. This witness categorically stated that afte crossing the Spiny Road near Jailo Building, the appellants rturned from the procession and attacked upon the vehicle by means of indiscriminate firing, in which the deceased along with his father (PW-1) were boarded, which resulted into martyr of deceased Imdad Ullah. PW-2 has confirmed the arrest of both the appellants soon after the occurrence red-handedly along with the crime weapons i.e. T.T. pistols and magazines containing live cartridges. PW-3 Azhar Hussain has recorded his statement fully in line to the statement of PW-2 and corroborated his statement on all counts. This witness has also confirmed the arrest of both the appellants red-handedly at the spot soon after the arrest. PW-2 and PW-3 have also identified the appellants correctly in the trial Court as the culprits, who at the relevant time made indiscriminate firing upon the pick-up, which resulted into murder of Imdad Ullah deceased. PW-3 is also the witness of recovery of pistols from the possession of both the appellants as well as the recovery of pick-up and motorcycle. PW-3 is also the witness of two empties recovered from the place of occurrence. PW-4 Aziz Haider, SI/CIA is the recovery witness of blood stained clothes of deceased and he also confirmed the bullet holes on the clothes of deceased. PW-5 is Medical Officer, while PW-6 is the recovery witness of site map, whereas PW-7 is the Investigating Officer of the case, who counted the steps taken by him during the course of investigation.
11. The reappraisal of the statements of above referred witnesses would divulge the fact that the prosecution has produced two types of evidence i.e. first the evidence of victim (PW-1), who at the relevant time was accompanying his deceased son, while the other portion of evidence relates to the evidence of police officials. We have analyzed the statements of witnesses on all angles and found the same trust worthy and reliable. So far as the objection taken by the defence that only interested witnesses have been produced by the prosecution, suffice to observe here that such objection is without any substance. PW-1 being the father of the deceased was accompanying him in the vehicle, when all of sudden attack was launched against them by the culprits being armed with sophisticated weapons, while PW-1 being an old man of 67/68 years being empty handed could neither save his son nor could retaliate the attack. Even otherwise the young son of PW-1 was murdered before his eyes, thus it is not acceptable for a prudent mind that he would let free the actual and real culprits and raise his fingers upon innocent persons. Besides, the incident had taken place during the day light, thus there was no chance of mistaken identity. The testimony of PW-1 cannot be disbelieved solely on the ground that he is in relation with the complainant rather the Court has to see the truthfulness and credibility of such witness. Reliance in this regard is placed on the case of Ijaz Ahmed v. the State 2009 SCMR 99, relevant portion reads as under:
"9. As regards the contention that both the eye-witnesses were related and thus, interested, therefore, their testimony could not have been believed, it may be pointed out here that mere relationship of a witness with the deceased is no ground for discarding his evidence if he, otherwise appears to be truthful and his presence at the place of occurrence is probable. Mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a motive to falsely implicate the accused, is swayed away by a cause against the accused, is biased, partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be regarded as an "interested witness". In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him. This view receives support from the following reported judgments:
(i) Sheraz Tufail v. The State 2007 SCMR 518, (ii) Khair Muhammad and another v. State 2007 SCMR 158, (iii) Amal Sherin and another v. State through A-G N.-W.F.P. PLD 2004 SC 371. (iv) Dosa and others v. The State 2002 SCMR 1578 (v) Mulla Riaz Ahmad v. "The State 2002 SCMR 626, (vi) Feroze Khan v. The State 2002 SCMR 99, (vii) Farmanullah v. Qadeem Khan and another 2001 SCMR 1473, (viii) Muhammad Amin v. The State 2000 SCMR 1784, (ix) Saeed Akhtar and others v. The State 2000 SCMR 383, (x) Mir Hassan and others v. State and others 1999 SCMR 1418, (xi) Sharafat Ali v. The State 1999 SCMR 329, (xii) Sardar Khan and others v. State 1998 SCMR 1823, (xiii) Wahid Bukhsh and others v. The State 1997 SCMR 1424, (xiv) Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639, (xv) State of Rajasthan v. Hanaman AIR 2001 SC 282 and (xvi) State of Punjab v. Wassail Singh and others AIR 1981 SC 697.
What to speak of related witnesses, evidence of an interested witness even, cannot be out rightly discarded unless it is proved that the witness had involved the accused for some ulterior motive and in case of interested witness, only as a rule of prudence and not as a rule of law, the Courts have emphasized that testimony of the witness may be evaluated with more than ordinary care and corroboration may be sought from the evidence. In this view, we are fortified by the following reported judgments:---
[(i) Abdul Majeed v. The State 2001 SCMR 90, (ii) Suraj Pal v. State of UP AIR 1994 SC 748, (iii) State of Karnataka v. Bheemappa 1993 Cr.LJ 2609 (SC) and (iv) State of U.P. v. Ballabh Das and others AIR 1985 SC 1384.
In the instant case both P.Ws. 1 and 2 being father and mother were natural witnesses and therefore, their presence in the house, at the relevant time, was rightly believed by both the Courts below. The contention, therefore, has no force."
Similar view has also been taken by the Hon'ble Supreme Court of Pakistan in the case of Latif v. State 2008 SCMR 1106, whereby it has been held as under:
"Testimony of both the aforementioned witnesses cannot be doubted because they being close relatives of the deceased vould not like to let go the real offender or substitute him with the appellant just to take revenge. Their presence at the place of occurrence was also natural. The evidence of both the eye-witnesses is corroborated by the medical evidence in all material particulars.
12. Now adverting to the evidence of police officiails, suffice to observe here that the complainant of the case i.e. PW-2 Arshad Mehmood is serving as high rank officer in the Police Department, thus under the circumstances it is not believable that a high rank officer of the police may depose falsely against the appellants and that too without any rhymes or reasons. Similarly, PW-3 Azhar Hussain Shah was the SHO of Police Station Brewery Road Quetta, who corroborated the statement of PW-2 on all counts. The presence of both the witnesses being police officers at the place of occurrence was natural as both the witnesses were providing security to the procession and soon after the occurrence they with the help of other police officials arrested the appellants and also effected the recovery of pistols from their possession. Both the culprits have failed to bring on record any ill-will or ulterior motives for their false implication by PW-2 and PW-3.
It has remained consistent view of the Superior Courts of the country that the police officials are as good as private witnesses and their testimony cannot be discarded merely for the reason that they are police officials unless the defense succeeds in giving dent to the statements of prosecution witnesses and prove their mala fide or ill-will against the appellants.
Admitted position of the case is that neither there had existed any relationship between the police officials and the appellants nor earlier they knew each other, thus there was no occasion for the police officials to falsely implicate the appellants in the crime. The testimony of police officials is entirely independent and truthful, therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge. Even otherwise, there is no bar upon the police officials to become witness of any crime. It has further been observed that the police officials in the present case were the natural witnesses of the crime, who at the relevant time were performing their duty for providing security to the procession and had directly witnessed the crime and caught the appellant red-handed, hence their presence at the spot cannot be disputed. Reliance in this regard is placed on the case of Muhammad Mushtaq and another v. State 2008 SCMR 742, whereby the Hon'ble Supreme Court has observed that the police officials are also competent witnesses and their testimony cannot be discarded merely for the reason that they are the employees of police force. Hence, in view of above legal and factual position the objection of the learned defence counsel is absolutely without any substance. We would like to take advantage of the case of Akhter Ali v. State (2011 SCMR 937) wherein it is held that:--
'10. We have considered the arguments put forth by the learned counsel for the parties and perused the record. The appellant was apprehended immediately after the occurrence by the P.Ws who have absolutely no motive to implicate the appellant. The defence plea is unfounded besides being an afterthought. We have found no reason to take any exception to the findings of the trial Court as well as of the appellate Court. Therefore, this appeal fails and is hereby dismissed.'
13. We have also considered the plea taken by the appellants in their statements recorded on oath under Section 340(2) Cr.P.C. and observed that the same has not been established through independent and solid evidence. The crime was witnessed by the PW-1, who is the father of the deceased and the PW-2 and PW-3 being high rank police officials, whose statements were found cogent, solid and reasonable, thus such evidence of the PWs cannot be brushed-aside merely on the basis of bald denial of the appellants claiming their false implication without any solid prove.
14. As far as the objection in respect of non-conducting the identification parade of the appellants through the victim (PW-1) is concerned, suffice to observe here that there are no hard and fast rules governing the issue of identification parade and the same depends upon the facts and circumstances of the case each case separately, as in some cases it has been held necessary, while in some cases it was held not essential. However, since the appellants were caught red-handed at the spot, when they made firing upon PW-1 and his deceased son, thus both the appellants were duly seen, though for a short but reasonable period. More particularly the police party already present there caught hold of the appellants on the spot along with the crime weapon, thus in our view the conducting of identification parade in the instant case is immaterial. The Hon'ble August Court in the case of Dr. Javaid Akhtar v. the State reported in PLD 2007 Supreme Court 249 has held as under:
"It is settled principle of law that identification parade is not a legal requirement. If the eye-witnesses can identify the accused before the trial court that is enough for conviction. It is also settled law that identification is immaterial if the identification of the accused is proved by other convincing evidence as law laid down by this court in Muhammad Afzal's case 1982 SCMR 129."
15. So far as the objection taken by the defence that the prosecution has failed to establish the motive behind the occurrence, suffice to observe here that the Hon'ble apex Court in various cases held that motive behind every case is not the requirement of law. The Hon'ble apex Court in the case of Waris Khan v. The State 2001 SCMR 387 has held, "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."
16. As far as the contention of learned counsel for the petitioner (being father of deceased) for enhancement of sentence is concerned, it is suffice to observe that the maimer in which the occurrence had taken place does not disclose premediated circumstances, whereas arrival of deceased and his father was by chance at the place of occurrence and the attack upon them by the appellants seems to be without pre-mediation. Such situation give rise to the mitigating circumstances due to which capital punishment of death cannot be awarded.
17 The facts and circumstances of the case suggest that the appellants should have been punished for life imprisonment with fine, but the appellants have been convicted under section 302(b) P.P.C. read with section 7 of ATA, 1997 for life imprisonment and no fine was imposed. Notice for enhancement of sentence has already been issued to the appellants in C.P. No.458 of 2017. Hence, the impugned judgement is modified to the extent of fine and besides sentence to suffer imprisonment for life, the appellants are also held liable to pay fine of Rs.300,000/- (rupees three hundred thousand) each and in default thereof to further suffer six months' S.l., with the benefit of Section 382-B Cr.P.C.
With the above modification/enhancement of sentence, the Criminal Appeal No.150/2015 is dismissed and Constitutional Petition No.458/2015 is disposed of.
HBT/65/Bal Order accordingly.