KHADIM HUSSAIN Versus THE STATE

CH. EJAZ YOUSAF, C.J.‑‑ ‑------This appeal is directed against the judgment, dated 31‑10‑2000, passed by the learned Sessions Judge, Jaffarabad at Dera Allah Yar whereby appellant Khadim Hussain son of Khuda Bakhsh was convicted under section 302(c), P.P.C. and sentenced to undergo 14 years' R.I. alongwith a fine of Rs.5,000 or in default thereof to further suffer R.I. for one year. He was also convicted under section 404, P.P.C: and sentenced to undergo three years' R.I. with fine of Rs.3,000 or in default thereof to further undergo R.I. for six months. Both the sentences of imprisonment were ordered to run concurrently. Benefit of section 382‑B, Cr.P.C. was extended to the appellant.

2. Facts of the case, in brief, are that on 1‑6‑1999 report was lodged by one Hamza Khan son of Abdul Aziz with Police Station Cattle Farm District Jaffarabad wherein, it was stated that the complainant was a farmer by profession. In the early hours of morning, on the said date, he alongwith his son Ahmad Khan, brother Inayatullah, cousin Niaz Ali and nephew Haq Nawaz was waiting for his guests at the bridge of Sim Shakh near Kirthar Canal. He sent his son, namely Ahmad Khan to fetch cigarettes from Khanpur bridge on motorcycle bearing registration No.SKF‑6730. At about 7‑45 a.m. they heard a gun shot report but did not care for it. After a while, they saw that an unknown person, aged about 18/19 years, was riding his motorcycle and going alongwith the Kirthar Canal towards east speedily. In the meantime, a passerby told him that a person was lying at Sonwah Watercourse Kirthar Canal in injured condition. On receiving the above information they all rushed towards the said watercourse and on reaching there saw that the complainant's afore‑named son having sustained a bullet injury on his forehead, was lying there. No sooner they reached the place of occurrence, then he succumbed to the injury. The complainant therefore, leaving his cousin Niaz Ali at the place of occurrence went after the culprit alongwith his relatives. Record reveals that P.W.1 Hamza Khan, in the meantime, set out for police station and having sought help of the police, later on, joined the complainant party alongwith police officials in the pursuit. The accused in order to frustrate the chase, however, left the motorcycle near the camp of Mir Faiq Khan Jamali and tried to flee. In the process he also resorted to firing which was returned by the police, he, however, having sustained a bullet injury, fell down. He was thus, apprehended and a T.T. pistol alongwith two live cartridges were recovered from his possession. The motorcycle abandoned by him was also taken into possession. On the stated allegation formal F.I.R. bearing No.34 of 1999, dated 1‑6‑1999 was registered under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 at Police Station, Cattle Farm and investigation in pursuance thereof, was carried out. On the completion of investigation, the appellant was challaned to the Court for trial.

3. Charge was accordingly framed against the accused/appellant to which he pleaded not guilty and claimed trial.

4. At the trial, the prosecution, in order to prove the charge and substantiate the allegation leveled against the appellant, produced seven witnesses, in all. P.W.1 Hamza Khan is the complainant. He, at the trial reiterated the version contained in the F.I.R. P.W.2 Inayatullah, paternal‑uncle of the deceased, had, soon after the occurrence, seen the appellant riding the motorcycle belonging to the complainant. P.W.3 Muhammad Amir, Head Constable is a marginal witness to the recovery memo. Exh.P.3/A, vide which blood‑stained shirt of the deceased was taken into‑possession by the police. P.W.4. Dr. Muhammad Ibrahim, Medical Officer, D.H.Q. Hospital, Dera Allah Yar had examined the dead body and issued certificate i.e. Exh.P.4/A. In his opinion cause of death was due to haemorrhage and shock by discharge of fire‑arm. He found two injuries one on the frontal area of the head of the deceased and the other on the occipital region and both the injuries were the result of one fire only. P.W.5 Khan Muhammad had also seen the appellant riding the motorcycle, belonging to the complainant, soon after hearing the gun shot report. He is also a marginal witness to the recovery memo. Exh.P.5/A vide which T.T. pistol alongwith two live cartridges were recovered from the possession of the accused. He has also witnessed the recovery of two empties of T.T. pistol seized by the police from the place of occurrence vide the memo. Exh.P.5/E. He is also marginal witness of the recovery memos. Exh.P.5/B, Exh.P.5/C and P.5/D vide which 16 empties of kalashnikov, 6 empties of .303 bore rifle, 5 empties of .12 bore shot gun and 6 empties of T.T. pistol, fired by the police, in exchange, were taken into possession. P. W .6 Niaz Ali is maternal‑uncle of the deceased. He had also soon after the occurrence, seen the appellant going towards east on the motorcycle, belonging to the complainant. He is a marginal witness of the site inspection note of the place of occurrence i.e. Exh.P.6/A, memo. of blood‑stained earth i.e. Exh.P.6/B and recovery memo. of two empties of T.T. pistol from the place of occurrence i.e. Exh.P.6/C. P.W.7 Khawind Bakhsh, S.‑I./S.H.O. is Investigating Officer of the case. He, besides other documents, tendered in evidence the report of the Chemical Examiner as Exh.P.7/F and Ballistic Expert's Report as Exh.P.7/H.

5. On the conclusion of the prosecution evidence the appellant was examined under section 342, Cr.P.C. In his above statement the appellant denied the charge and pleaded innocence. He, however, failed to lead any evidence in his defence or to appear himself as his own witness in terms of section 340(2), Cr.P.C.

6. After hearing arguments of the learned counsel for the parties, the learned trial Court convicted the appellant and sentenced him to the punishment as mentioned in the opening para. hereof.

7. We have heard Mr. Muhammad Sharif Janjua, Advocate, learned counsel for the appellant and Qari Abdul Rashid, Advocate, learned counsel for the State.

8. It has been mainly contended by the learned counsel for the appellant that the occurrence being unseen and prosecution case solely based on circumstantial evidence, it could not have been concluded with certainty by the learned trial Judge, that appellant was responsible for commission of the offence. He has further contended that, even if, the appellant was found in possession of the robbed property then, at the most, he could have been convicted under section 411 or 412, P.P.C. for dishonestly receiving stolen property and could not have been fastened with the liability of murder.

9. Qari Abdul Rashid, Advocate, learned counsel for the State, on the other hand, while controverting the contentions raised by the learned counsel for the appellant, has submitted that the offence took place in the early hours of morning and the appellant soon after the occurrence was found riding the robbed motorcycle. He was, therefore, chased and after exchange of firing was apprehended. Crime weapon too, was recovered from his possession and since the empties recovered from the place of occurrence wedded with the weapon recovered from possession of the appellant, therefore, he was rightly convicted for the offence.

10. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the entire record with their assistance. As regards the first contention of the learned counsel for the appellant that since prosecution case is based solely on circumstantial evidence, therefore, it could not have been concluded with certainty that the appellant was responsible for the offence; it may be pointed out here that, no doubt, the occurrence; in the instant case is unseen but there is no rule that conviction cannot be based on circumstantial evidence alone. Absence of direct evidence does not mean that guilt cannot be fixed. It may be noted here that circumstantial evidence is the evidence of basic facts wherefrom, further fact has inference or natural conclusion, according to reason and logic may be deduced. However, its strength, as per circumstances of the case, may vary. Often it is stronger and more satisfactory than direct evidence because it is not liable to delusion or fraud and, therefore, in some cases, where direct evidence is either not available or witnesses are not deemed wholly credible, circumstantial evidence, may be more convincing. The test is that it should not only be relevant but consistent and conclusive as well and should be so convincing that circumstances or facts proved on record must lead to a single conclusion. In order to carry conviction however, it must be incompatible with any reasonable hypothesis of innocence of the accused. In a number of cases convictions based exclusively on circumstantial evidence have been upheld. In the case of Talib Hussain v. The State 1995 SCMR 1538 deceased Bilal Ahmad was studying Holy Qur'an in Jame‑a‑Masjid, Bahadar Khan, Alipur. On the fateful day he had gone to collect food from the Mohallah but did not return. His relatives alongwith others went in search of him. Suspecting that the child was in the house of Qari Talib Hussain, the accused, they knocked at the door of his house, who came out in disturbed and perplexed condition. There was blood stains on his clothes as well. No sooner the accused saw them then he ran away. They went inside the house and saw the deceased lying dead on the floor with handkerchief around his neck. Blood was oozing out of his mouth and nose and his hands were tied behind his back with string. It was alleged that Qari Talib Hussain had killed him with intention to commit sodomy. Prosecution case based on circumstantial evidence was believed and it was held that circumstantial evidence coupled with medical evidence was, sufficient to prove the charge against the petitioner. In the case of Muhammad Arshad v. The State 1992 SCMR 1187 testimony of two alleged eye‑witnesses was excluded from consideration yet, the prosecution case, merely on the circumstantial evidence, was believed. Conviction of the appellant for murder was accordingly upheld. In the case of Muhammad Fayyaz alias Shako v. The State PLD 1984 SC 445 too, the prosecution case based entirely on circumstantial evidence. On re‑examination of entire evidence, afresh, the Honourable Supreme Court of Pakistan was pleased to hold that High Court had not committed any legal or factual error in appraisal of evidence because testimony of witnesses was found consistent and trustworthy. In the case of Khuda Bakhsh v. The State 2003 SD 690 as well, the prosecution was depending completely on circumstantial evidence. The conviction and sentence of death inflicted on the appellant by the trial Court and confirmed by the Federal Shariat Court was upheld by the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan. In the case of Daulat Ali v. Muhammad Aslam and others 1999 SCMR 845 none had seen the occurrence. Dead body of the girl was found in the house of accused for which he lodged a misguiding report at the police station. Accused had himself pointed to the blood‑stained Chhuri, buried by him in the courtyard of his house. Accused persons were acquitted by the trial Court, however, on appeal to the Federal Shariat Court they were convicted. The conviction and sentences of both the male accused persons including the sentence of death were maintained by the Honourable Supreme Court of Pakistan in the case purely resting on circumstantial evidence. In the wake of above it thus, follows that in a case where either direct evidence is not available or has not been found trustworthy conviction can be recorded on the basis of circumstantial evidence alone subject to the condition that all the circumstances must lead to the guilt of the accused and no link in the chain should be missing. In this view, we are fortified by the following reported judgments, as well:‑‑

(1) Siraj v. The Crown PLD 1956 FC 123, (2) Allah Ditta v. The State PLD 1958 SC 290, (3) The State v. Manzoor Ahmad PLD 1966 SC 664; and (4) Karamat Hussain v. The State 1977 S C M R 15.

11. In this case there is strong circumstantial evidence which leads to the inference that occurrence, in the instant case, has taken place in the manner as suggested by the prosecution. Prosecution case is based on the medical as well as circumstantial evidence i.e. the accused having been seen going on the robbed motorcycle soon after the occurrence, his arrest after exchange of firing and recovery of the crime weapon i.e. T.T. pistol from his possession the recovery of robbed motorcycle, the recovery of two empties of T.T. pistol from the place of occurrence and two empties from the place wherefrom the appellant was arrested, the report of the Ballistic Expert and Chemical Examiner's report. In order to prove the fact that appellant soon after the occurrence was seen riding the robbed motorcycle, prosecution has examined P.W.1 Hamza Khan, P. W.2 Inayatullah, P.W.5 Khan Muhammad and P. W. 6 Niaz Ali. Out of the four, though three witnesses i.e. P.Ws. 1, 2 and 6 are related with the deceased yet, there appears no defect in their evidence which may render the same as untrustworthy. The events, which took place subsequently, i.e. chase of the appellant and recovery of robbed property from his possession alongwith the crime weapon rather established, veracity of their statements. P.W.5 Khan Muhammad is an independent witness and m the absence of any enmity or motive to falsely implicate C the appellant with the crime, his statement too, cannot be doubted. Further, since empties recovered from the place of occurrence were wedded with the crime weapon therefore, it was rightly inferred by the learned trial Judge that the appellant was responsible for omission of the offence. The contention, therefore, has no force.

12. As to the second contention that even if the appellant was found in possession of the robbed property then he, at the most, could have been convicted under section 411 or 412, P.P.C. for dishonestly receiving stolen property and could not have been saddled with the liability of murder, it may be pointed out here that the contention in view of the discussion made in para. (supra), on its face, appears to be misconceived because the appellant has been found responsible to commit the offence of murder with robbery. The learned trial Judge, however, appears to have been misled in convicting him under section 404, P.P.C. because it was not a case of dishonest misappropriation of property possessed by the deceased but was a simple case of robbery in course whereof murder was also committed.

13. The learned trial Judge also appears to have erred in convicting the appellant under subsection (c) of section 302(b), P.P.C. for committing murder because the appellant neither being a minor or insane nor a descendant or ascendent of the deceased, within the purview of section 306, P.P.C., his case, was not covered by subsection (c) of section 302, P.P.C. Therefore, if the case of appellant did not fall within the ambit of subsection (a) of section 302(b), P.P.C. for want of proof of Qatl‑e‑Amd liable to Qisas as stipulated by section 304, P.P.C., then the learned trial Judge ought to have convicted him under subsection (b) of section 302(b), P.P.C. It may be mentioned here that subsections (a), (b) and (c) of section 302, P.P.C. are attracted and take care of altogether three different situations. Under subsection (a) of section 302(b), P.P.C. a person guilty of Qatl‑e‑Amd may be punished with death as Qisas whereas, under subsection (b) thereof a person guilty of Qatl‑e‑Amd may be punished with death or imprisonment for life as Ta'zir, having regard to the facts and circumstances of the case, if proof in either of the forms specified under section 304, P.P.C. is not available and subsection (c) of section 302, P.P.C. deals with the cases of entirely different categories e.g. of minors, insane persons, descendants or ascendents, who, by virtue of section 306, P.P.C., are immuned from punishment under section 302(a), P.P.C.

14. Upshot of the above discussion is that conviction of the appellant is altered from under section 302(c), P.P.C. to that of under section 302(b), P.P.C. and the sentence of 14 years imprisonment inflicted on him by the learned trial Judge, for committing murder of the deceased, is maintained. Conviction and sentence recorded against the appellant under section 404, P.P.C. however, is set aside and instead he is convicted under section 392, P.P.C. and sentenced to undergo three years' R.I. with fine of Rs.3,000 or in default thereof to further suffer R.I. for three months. Both the substantive sentences of imprisonment shall run concurrently. Benefit of section 382‑B, Cr.P.C. allowed by the learned trial Court shall remain intact.

These are the reasons for our short order of the even date.

In our short order, due to typographical mistake and inadvertence, it has been mentioned that conviction of the appellant were convicted. The conviction and sentences of both the male accused persons including the sentence of death were maintained by the Honourable Supreme Court of Pakistan in the case purely resting on circumstantial evidence. In the wake of above it thus, follows that in a case where either direct evidence is not available or has not been found trustworthy conviction can be recorded on the basis of circumstantial evidence alone subject to the condition that all the circumstances must lead to the guilt of the accused and no link in the chain should be missing. In this view, we are fortified by the following reported judgments, as well:‑‑

(1) Siraj v. The Crown PLD 1956 FC 123, (2) Allah Ditta v. The State PLD 1958 SC 290, (3) The State v. Manzoor Ahmad PLD 1966 SC 664.; and (4) Karamat Hussain v. The State 1977 SCMR 15.

11. In this case there is strong circumstantial evidence which leads to the inference that occurrence, in the instant case, has taken place in the manner as suggested by the prosecution. Prosecution case is based on the medical as well as circumstantial evidence i.e. the accused having been seen going on the robbed motorcycle soon after the occurrence, his arrest after exchange of firing and recovery of the crime weapon i.e. T.T. pistol from his possession the recovery of robbed motorcycle, the recovery of two empties of T.T. pistol from the place of occurrence and two empties from the place wherefrom the appellant was arrested, the report of the Ballistic Expert and Chemical Examiner's report. In order to prove the fact that appellant soon after the occurrence was seen riding the robbed motorcycle, prosecution has examined P.W.1 Hamza Khan, P. W.2 Inayatullah, P.W.5 Khan Muhammad and P. W. 6 Niaz Ali. Out of the four, though three witnesses i.e. P.Ws. 1, 2 and 6 are related with the deceased yet, there appears no defect in their evidence which may render the same as untrustworthy. The events, which took place subsequently, i.e. chase of the appellant and recovery of robbed property from his possession alongwith the crime weapon rather established, veracity of their statements. P.W.5 Khan Muhammad is an independent witness and m the absence of any enmity or motive to falsely implicate the appellant with the crime, his statement too, cannot be doubted. Further, since empties recovered from the place of occurrence were wedded with the crime weapon therefore, it was rightly inferred by the learned trial Judge that the appellant was responsible for omission of the offence. The contention, therefore, has no force.

12. As to the second contention that even if the appellant was found in possession of the robbed property then he, at the most, could have been convicted under section 411 or 412, P.P.C. for dishonestly receiving stolen property and could not have been saddled with the liability of murder, it may be pointed out here that the contention in view of the discussion made in para. (supra), on its face, appears to be misconceived because the appellant has been found responsible to commit the offence of murder with robbery. The learned trial Judge, however, appears to have been misled in convicting him under section 404, P.P.C. because it was not a case of dishonest misappropriation of property possessed by the deceased but was a simple case of robbery in course whereof murder was also committed.

13. The learned trial Judge also appears to have erred in convicting the appellant under subsection (c) of section 302(b), P.P.C. for committing murder because the appellant neither being a minor or insane nor a descendant or ascendent of the deceased, within the purview of section 306, P.P.C., his case, was not covered by subsection (c) of section 302, P.P.C. Therefore, if the case of appellant did not fall within the ambit of subsection (a) of section 302(b), P.P.C. for want of proof of Qatl‑e‑Amd liable to Qisas; as stipulated by section 304, P.P.C., then the learned trial Judge ought to have convicted him under subsection (b) of section 302(b), P.P.C. It may be mentioned here that subsections (a), (b) and (c) of section 302, P.P.C. are attracted and take care of altogether three different situations. Under subsection (a) of section 302(b), P.P.C. a person guilty of Qatl‑e‑Amd may be punished with death as Qisas whereas, under subsection (b) thereof a person guilty of Qatl‑e‑Amd may be punished with death or imprisonment for life as Ta'zir, having regard to the facts and circumstances of the case, if proof in either of the forms specified under section 304, P.P.C. is not available and subsection (c) of section 302, P.P.C. deals with the cases of entirely different categories e.g. of minors, insane persons, descendants or ascendents, who, by virtue of section 306, P.P.C., are immuned from punishment under section 302(a), P.P.C.

14. Upshot of the above discussion is that conviction of the appellant is altered from under section 302(c), P.P.C. to that of under section 302(b), P.P.C. and the sentence of 14 years imprisonment inflicted on him by the learned trial Judge, for committing murder of the deceased, is maintained. Conviction and sentence recorded against the appellant under section 404, P.P.C. however, is set aside and instead he is convicted under section 392, P.P.C. and sentenced to undergo three years' R.I. with fine of Rs.3,000 or in default thereof to further suffer R.I. for three months. Both the substantive sentences of imprisonment shall run concurrently. Benefit of section 382‑B, Cr.P.C. allowed by the learned trial Court shall remain intact.

These are the reasons for our short order of the even date.

In our short order, due to typographical mistake and inadvertence, it has been mentioned that conviction of the appellant under section 302(c), P.P.C. is maintained. The same may be deemed altered in the light of above observations.

H.B.T./16/FSC Order accordingly.