GHALIB HUSSAIN Versus MUHAMMAD ARIF

SYED DEEDAR HUSSAIN SHAH, J.‑‑‑ By this common judgment we intend to dispose of Criminal Appeals Nos. 108 and 109 of 2000, as common questions of facts and taw arise therein.

2. The occurrence took place on 3‑9‑1989, at 12.30 (moon) on the road near the well of Muhammad Siddique, in the area of Chok Mir Purian, Dakhli Daulwala at a distance of 3 kms. from Police Station Jatli District Rawalpindi. On the same day at about 1‑45 p.m. Nasir Javed S.I./S.H.O. (C.W.12) recorded the statement of Muhammad Aghaz (P.W.2), on the basis of which F.I.R. was registered against the accused persons.

3. The complainant being dissatisfied with the attitude of the Investigating Officer filed a complaint (Exh.P.D.) in the Court on 13‑9‑1989.

4. The incident as narrated by the complainant is to the effect that on 3‑9‑1989, Muhammad Aghaz, complainant P.W.2, was coming front village Daultala after purchasing some goods over his donkey, when he reached near Dhoke Mir Purian at about 12 30 (noon) Muhammad 1dris and Muhammad Tausif sons of Ghalib Hussain passed ahead riding their bicycles leaving the complainant behind. They were near the well of Muhammad Siddiqe, where Muhammad Arif, Amir Hamza; accused‑appellants armed with chhuris alongwith Asif Mahmood, Shabbir, Muhammad Akhlaq co‑accused (empty handed) stopped Muhammad Idris deceased. Amir Hamza shouted that he should not be spared, whereupon Asif Mahmood caught hold of right arm, Shabbir caught hold left arm and Akhlaq caught hold of legs of Muhammad Idris, whereas Muhammad Arif appellant inflicted chhuri blows in his belly and chest. Amir Hamza appellant inflicted chhuri blows on the back of Muhammad Idris, who fell down on the ground on account of the aforesaid injuries. Later on, Amir Hamza‑appellant shouted that Muhammad Idris should be stained. Asif Mahmood and Shabbir co‑accused caught hold of Idris from his hands, Muhammad Akhlaq caught hold of his head and Muhammad Arif separated half the neck of Muhammad Idris with his chhuri. Muhammad Tausif, brother of the deceased, raised alarm whereupon the accused ran away from the spot. This occurrence was witnessed by Muhammad Aghaz complainant (P.W.2), Muhammad Tausif P.W.3, Mst. Ajaib Bibi wife of Ghulam Muhammad, and Sajid Mahmood P.W.4.

5. After usual investigation the police challaned the accused and sent them to face the trial. The accused denied the charges and put forward their own version Litat they were involved on account of enmity.

6. During investigation the police recorded the statements of Mgt. Zarina Bibi, Nadeem Aslam, Shafqat Hussain, Ulfat Hussain, Muhammad Ishaque Mst. Ulfat Bibt and Ali Asghar, who were examined during trial as C.Ws. 4, 5, 6, 7, 8 and 9. On behalf of the complainant, Muhammad Yousuf P.W.3, and Sajid Mahmood P.W.4 appeared, whereas Ajaib Bibi was given up. In this case Major Fateh Sher Joya D. S. P. appeared as D.W.1 before the trial Court. During trial statement of the accused‑appellants were recorded in which they denied the allegations of the prosecution and claimed to be innocent. .

7. The learned Additional Sessions Judge, Rawalpindi, vide judgment dated 22‑3‑1993, convicted all the accused under section 302, P.P.C. and sentenced them to death and fine of Rs.50,000 each, or in default whereof, 1 year's R.I., they were also convicted under section 149, P.P.C. and sentenced to 3 years' R.I. plus tine of Rs.10,uW each, or in default to undergo further 3 months' R.I.

8. On appeal, the learned Division Bench of the Lahore High Court, acquitted Asif Mahmood, Shabbir and Mahmood Ikhlaq co‑accused, whereas the death sentence awarded to Muhammad Arif and Amir Hamza convicts appelants was confirmed vide impugned judgment 14‑7‑1997.

9. Vide order, dated 10‑4‑2000 leave to appeal was granted in both the appeals mentioned above to reappraise the evidence as a whole and also to I consider the quantum of sentence awarded to the appellants herein.

10. Mr. Aftab Farrukh, learned counsel for the accused‑appellants, inter alia, contented that the learned trial Court while convicting the appellants and the learned High Court in dismissing their appeal did not keep in mind the principles of safe administration of criminal justice. It was argued that motive is not established beyond reasonable doubt; that it was a case of two versions, one version was furnished by the complainant‑party, which was supported by the prosecution witnesses, whereas the other version was based on the police investigations and a complete different set of eye‑witnesses was produced, but the trial Court and the High Court did net consider the two versions in juxtaposition, which resulted in miscarriage of justice. It was submitted that the eye‑witnesses so examined were chance witnesses and they did not provide reasonable explanations regarding their presence at the place of occurrence. It was pointed out that admittedly the eye‑witnesses were related to the deceased but they did not intervene to save him, and that this fact alone is sufficient to discard their evidence; that the medical evidence was not in conformity with the ocular account; that the version of the police was supported by the eve‑witnesses who had no enmity with the accused, with the result that during investigation two accused persons were found innocent by the police arid they were discharged by the police from the case; that the investigation conducted by the S.H.O., which resulted‑in challan, was also supported by Major Fateh Sher Joya, who appeared as D. W.1; that from the above circumstances second version of the case was supported; that the motive was shrouded in mystery as such maximum penalty of death awarded to the accusaed‑appellants is not in consonance with the established principles enunciated by this Curt; and that the conviction of the appellants is not legally and factually sustainable.

11. Muhammad Zaman Bhatti, learned counsel for the State, supported the impugned judgment and submitted that the Courts below were not bound to rely on the opinion of the police or evidence given by Major Fateh Sher Joya, D.S.P.; that it was a daylight occurrence and specific role o: causing injuries to the deceased was attributed to the appellants, which is supported by the medical evidence; that Muhammad Idris deceased, who was a young man of 22 years of age, received the following injuries:‑‑

"(1) Incised wound 11 c.m. horizontal and 7 c.m. vertically. Bone deep and in front of neck extending from a point 6 c.m. below the left ear abule to the same level on the right side the injury was slightly above the pomun adam height (Thyroid) with the single cut through and through and all the muscles and blood vessels in front of the neck was out and esophagus were also partly cut.

(2) Incised wound 11 c.m. x 5 c.m. not whole skin deep below the injury No. 1.

(3) Stab wound 4 c.m. x 1.5 c.m. about 4 c.m. to the left of middle of tower border of sternum with fractures 6 and 7 left coastal cartilages. Pleura was ruptured alongwith pericardium and heart cut close to its tip with blood in pericardium.

(4) Incised wound 2.5 c.m. x 1 c.m. and 1 c.m. deep on left posterior axially line and 12 c.m. below mix axially point.

(5) Incised wound 2.5 c.m. x'1 c.m. and 2 c.m. deep on back of left chest close to the mid 1 ne at the level of lower and of scapula.

(6) Incised wound 3.5 c.m. x 1 c.m. and 5 c.m. deep about 3 c.m. from mid line on back of left chest and 9 c.m. above injury No.5.

(7) Stab wound 2.5 c.m. x 1 c.m. lung deep with fracture about 3 c.m. above Injury No.6.

(8) Stab wound 3.5. c. m. x 1 c. m. and 6. c. m. deep on back of right chest in the middle of upper part of right‑scapula. (Lung cut).

(9) Incised wound 2.5 c.m. x 1 c.m. and 2 c.m. deep 3 c.m. below the Injury No.8.

(10) Incised wound 2 c.m. x 0.5 c.m. skin deep between tip of front of right shoulder and lateral 1/3 of right clavicle."

Learned counsel for the State further stated that the trial Court after proper appraisal of the evidence awarded the sentence, which was also upheld by the learned High Court; that the death of Muhammad Idris was caused in a very brutal and cruel manner, normal penalty for which under section 302, P.P.C. is death; that the evidence of the prosecution witnesses was rightly believed by the Courts below, whereas the evidence of C.Ws. including D.W.1 was rightly discarded by the Courts below. Raja Muhammad Anwar, learned counsel for the complainant‑party also supported the impugned judgment.

12. We have considered the, arguments of the learned counsel for the parties and minutely perused the evidence on record. The ocular account was furnished by Muhammad Aghaz complainant P.W.2, Muhammad Yousuf P.W.3 and Sajid Mahmood P.W.4. Their evidence was subjected to cross -examination but nothing was brought out to disbelieve their version. Their evidence was also supported by the recovery of blood‑stained earth from the spot and cycles belonging to the deceased.

13. It would be advantageous to refer to the evidence of Azizullah Constable (C.W.2), who in cross‑examination had stated that:‑‑

"The complainant had come to the police station to give information about the occurrence. We left the police station for the place of occurrence after the registration of the case. Before we had proceeded from the‑ police station the S.P. Fateh Sher came there at the police station. His driver and gunman etc., were with him. S.P. had taken the S.H.O. into a room separately and there he remained with him talking for about 2/3 minutes with the S.H.O. Thereafter, the Police Inspector/S.H.O. proceeded towards the spot alongwith me other police officials and the complainant. The complainant had come to the police station to give information at about 1‑30 p.m.

' We reached the place of occurrence at about 2‑45 p.m. the dead body was lying on the ground. At the spot there were two cycles; one was near the dead body and the other was at some distance of it .

. . . . . . . . I do not exactly remember after how many minutes after the arrival of the complainant the S.P. had come at the police station. It may be ten minutes or half an hour I do not know what the S.P. said to the S.H.O.

It is incorrect that my statement regarding bicycles and the arrival of the S.P. at the police station are dishonest concession to the complainant party."

Nawab Khan Patwari (C.W.1) is a formal witness, who had produced site plan. In cross‑examination Mst. Zarina Bibi (C.W.4) stated as under:‑‑

" . . . . . Idris and Asif were causing kicks and fist blows with each other. I saw the occurrence from the very beginning to the very end."

Shafqat Hussain (C.W.6) was examined by the trial Court and his evidence was rightly disbelieved. In cross‑examination he stated that:‑‑

"It is correct that Ghalab, a brother of Akhliq accused, is a police Hawaldar. It is correct‑that Sher Zaman and cousin of Asif accused and sister's husband of Arif had been D.S.P. Amir Azam brother of Amir Hamza is B.A. B.Ed., teacher. It is correct that Naseer Ahmad, Chairman of Union Council, Chak Naban, is related to Amir Hantza and Arif accused .

. . . . . . . For the first time my statement was recorded by the police three weeks after the occurrence at the police station. I have seen my signatures on the affidavit Exh.C.W.6/A. Volunteers these were obtained on a blank paper. It is a stamp paper of value Rs.50.but it was unwritten when I signed it. I had signed this affidavit on 2‑2‑1991. "

Ulfat Hussain (C.W.7) stated that "when I reached the place of occurrence the dead body was lying there and nobody else was present at or around it".

Muhammad Ishaq (C.W.8) in cross‑examination stated that "I am Orderly to the D.S.P. City. Even during the days of occurrence I was serving in Police Department. For the first time in this case I made statement before the police on 24‑9‑1989".

Mst. Ulfat Bibi (C.W.9) stated that "I do not know anything about this case. I did not see the occurrence relating to the murder of Muhammad Idris.

Ali Asghar (C.W.10) stated that "I know nothing about this case."

Adalat Hussain (C,W.11) stated that "I do not know anything about the facts of this case. Muhammad Afzal S.I and Ghulam Ali Moharrir told me that an unattended cycle was lying in the Bazar and that I should bring it to the police station".

Javed Nisar, (C.W.12) is the Investigating Officer, who did not conduct the investigation properly and the complainant made applications to the higher authorities against his conduct and the complainant was compelled to file direct complaint in the Court.

Statement of Major Fateh Sher Joya (D.W.1) was recorded by the trial Court in which he stated as under:‑‑

' . . . . . I did not take into possession anything from the spot. I have not directed the Investigating Officer to take into possession of things being carried by the complainant at the time of occurrence on the she donkey bringing from Daultala. I do not remember what things were brought on tile she donkey. I did not make any note about the things brought on the she donkey. I do not remember if any medicine brought by Ajab Bibi was produced before me during the verification by the Investigating Officer. I went to the spot two days after the occurrence for the first time. I had not joined in the investigation any person from the close by house. Adalat Hussain P.W./C.W. never appeared before me. It is incorrect to suggest that I have given my incorrect finding regarding Muhammad Asif accused because of the influence of local M.P.A. and for enmity of Muhammad Khan father of Muhammad Asif accused with the local Chairman who is thick with the local M.P.A."

. . .The eye‑witnesses mentioned in the F.I.R. were fully supporting the version of the F.I.R. I had gone to the place of occurrence on 5‑9‑1989 but I did not go to village Nabia on that day. Many persons had appeared before me from the complainant side at the spot. On that day none appeared in defence of the accused at the place of occurrence .

I did not record the statement of any of eye‑witnesses during the investigation. It is correct that none of those persons who had supported the alibi of the accused was cited as witness in the calendar of the challan. It is incorrect to suggest that it was under my direction that bogus alibi evidence was recorded. It is incorrect that this was the reason that these persons were not supporting the alibi and were not produced in defence before the Court nor, we cited them in the calendar of challan.

It is incorrect to suggest that actual facts were the same which were mentioned by the complainant in the F.I.R. and that in collusion with the accused we gave twist to the prosecution story by fabricating false evidence."

14. It is manifest from the above narration that the police deliberately conducted the investigation dishonestly and put forward two versions about the incident so that the case of the complainant may be damaged. The incident is of daytime. The question of mistake in identity of the accused persons is out of question. The version put forth by the complainant and eye‑witnesses is supported by the circumstances and the injuries caused to the deceased. The testimony of the eye‑witnesses was confidence‑inspiring, natural and trustworthy, which was rightly believed by the trial Court as well as by the High Court. The second version given by the police of their own negated case of the complainant as set out in the F.I.R. It is in the statement of Azizullah C.W.2, on Oath, that Major Fateh Sher Joya, D'.S.P. came at the Police Station after lodging of the F.I.R. and he took Javed Nisar S.H.O. in a room and talked to him privately. The only inference from this statement can be drawn that he instructed the Investigating Officer to act according to his wishes. We have already considered the evidence of Major Fateh Sher Joya (D.W.1), which has been referred hereinabove. Prima facie, it appears that at his instance investigation of the case was not conducted by the Investigating Officer as required under the law. The trial Court has the advantage of observing veracity of the. witnesses and it rightly believed the version put forth by the complainant and very rightly rejected the second version adduced by the police. It would be very much pertinent to refer relevant paragraphs of the impugned judgment of the High Court, which read as under:‑‑

"13. The incident took place at broad daylight and the police did not take interest and the complainant was compelled by the circumstances to file the complaint. Arif is the real maternal uncle of Amir Hamza/appellant, Asif and Shabbir are friends of Hamza/appellant. The father of Arif/appellant and mother of P.W.2 are cousins. The wife of Arif is cousin of P.W.2, the brother of Asif/appellant is P.W.2's friend. Shabbir/appellant is also his marriage friend. The learned counsel further contended that medical evidence proves that the two injuries could only be inflicted that other appellants caught hold the deceased. That is why, no suggestion was asked from the doctor on behalf of the appellants in this respect. The learned counsel contended that presence of the eye‑witnesses at the spot cannot be ruled out; being the residents of the same locality and the incident took place on a public thoroughfare and eye‑witnesses have no motive to involve the appellants in, such a heinous offence. It is further contended that the appellants alleged that they were not present on the place of occurrence but they have not produced any defence witness to prove this plea. It is further contended that the motive was established by the complainant on the record. If motive is not established even then; on the basis of brutal murder, the appellant deserves capital punishment.

14. We have heard the learned counsel for the parties and examined the record with the assistance of the learned counsel for the patties. It is an incident having two versions, one put forward by the complainant and the other by the Investigating Officer. The contents of F.I.R. as well as of complaint are similar word by word on all material points. It is admitted facts that F.I.R. was lodged at 1‑45 p.m. whereas the incident took place at 12‑30 p.m. This prompt F.I.R. having the name of assailant alongwith specific role attributed to them, removes the slightest doubt that it was "recorded after preliminary investigation. It is also admitted fact that incident took place in broad daylight and the eye‑witnesses proved on record their presence at the spot on a thoroughfare and fully explained that they came from the institution after giving the examination. This explanation proved the story of the complainant and, as such, no suggestion was put, to the witnesses as to the holding of examination in their institution. Therefore, the eye‑witnesses are natural and their presence on the spot is justified. The are not chance witnesses but they are natural eye‑witnesses. The eye‑witnesses are related to Asif accused, therefore, they could not involve him falsely. In such situation, the eye‑witnesses account cannot be ignored on minor discrepancies pointed out by the learned counsel for the appellants. The eye‑witnesses account is genuine and trustworthy whereas the Court witnesses account could not be believed, as in the investigation, Muhammad Asif appellant was found guilty alongwith Ghulam Shabbir and Ikhlaq Hussain. They admitted the time, place and occurrence but with different version, which is not believable. The Investigating Officer recorded the evidence of the persons who were not named as eye‑witnesses in the F. I. R, therefore, the investigation conducted by Investigating Agency was not fair and proper.

15. As a result of the above discussion; keeping in view the irrefutable realities established by the statement of the eye‑witnesses, the complainant has proved of the case against the convicts Muhammad Arif and Hamza. The presence of eye‑witnesses at the spot satisfactorily accounted for that they belonged to the same locality, within the radius 3/4 miles and the incident took place at a public thoroughfare. The prosecution case on the line of such evidence is free from doubt. It is pertinent to mention here that mere interest of witnesses in deceased does not provide reasons for disbelieving them. Even otherwise, in the present case, eye‑witnesses are related to the accused and their statement are fully corroborated by an independent satisfactory evidence, and medical evidence. In this case, statement of witnesses are trustworthy. It is admitted fact that in this case there is no enmity between the parties, therefore, these witnesses are not termed as inimical witnesses. We do not find any contradiction in the statement of witnesses qua the medical evidence.

16. Arif and Hamza accused/appellants were attributed specific injuries and Injury No.1 attributed to Arif accused/appellant is individually sufficient to cause death of the deceased, therefore, death sentence awarded to him by the learned Additional Sessions Judge is upheld as the injury inflicted is of a very brutal and butchered manner; that the appellant has no sympathy with the human‑being. The injuries Nos.8, 9 and 10 were attributed to Hamza appellant/accused and according to the opinion of the Doctor Injuries Nos.3 to 10 sufficient to cause death of the deceased. Therefore, Hamza was also responsible for the death of the deceased alongwith a motive as attributed to Hamza. As the deceased .was a young boy who was murdered at the youth of his life, therefore, death sentence awarded to Hamza is also upheld. The other three appellants were present at the scene with empty‑handed and no injury was attributed to them, therefore, by giving them benefit of doubt they are acquitted."

15. In this context it has been held time and again by this Court' that motive by itself neither proves nor disproves any assertion conclusively. Reference may be made to Moazam Shah v. Mohsan Shah (PLD 2001 SC 458) wherein it has been held that:‑‑

"Motive by itself neither proves nor disproves any assertion conclusively. Motive does help in determining the guilt of a person, particularly at the stage of investigation, but it remains invisible to all in many cases except the offenders. When there is clear proof that person has committed a crime, motive or previous ill‑will becomes immaterial and is not necessary to sustain a conviction. "

"To curb crime in the society is the need of the hour. One object of criminal justice is to award exemplary punishment to offenders in order to deter them from committing crimes and in this way also to serve a stern warning to those members of the society who have behavioural leaning towards criminality."

Nawaz Ali v. The State (2001 SCMR 726, 730) wherein it has been held

"It has been held time and again by this Court that in case of lack of motive altogether or if the prosecution is unable to prove motive for murder, it does no: affect the imposition of normal penalty of death in murder case. If the prosecution otherwise has been able to prove its case against the accused beyond reasonable doubt. Reference may be made to Ahmad Nisar v. The State (1977 SCMR 175) wherein this Court observed as follows:‑‑

'Generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime: is best known to him and not to others. Absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye‑witnesses if they be otherwise reliable.'

Earlier in Talib Hussain and others v. The State (1995 SCMR 1776) it was held that there was no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged not proved. If the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If normal sentence is not to be awarded, the Court is to make out a case for reduction of sentence on the basis of mitigating circumstances.

The trial Court as well as the learned High Court accepted evidence produced by the prosecution and this Court also while granting leave to appeal observed, that, conviction of the appellants was justified on the evidence produced by the prosecution. Absence of motive, and that the appellants are brother inter se are no ground is law for awarding lesser punishment."

16. In view of the facts, circumstances and case‑law, we are of the considered opinion that the Courts below have properly considered the evidence and awarded the sentence, therefore, Criminal Appeal No.109 of 2000 has no merit and substance, which is accordingly dismissed.

17. At the very outset of his arguments Raja Muhammad Anwar, learned counsel for the appellant submitted that he does not press Criminal Appeal No. 108 of 2000, which is dismissed, as not pressed.

Q.M.H./M.A.K./G‑70/S Appeal dismissed.