AKHTAR HUSSAIN Versus THE STATE S.M. Lateef Khan Khosa , S. M. Zafar and Ch. Ijaz Ahmad, J. V . Gardner for the State.
MUHAMMAD RAFIQ TARAR, J .‑‑ Muzaffar Khan (51), Muhammad Safdar (41) sons of Mir Zaman, Mahbub Khan (30) son of Muhammad Iqbal and Akhtar Hussain (28) son of Abdul Rehman, were tried by the learned Additional Sessions Judge, Rawalpindi, on the allegations that on 17th October, 1979, at 9‑30 p.m. they committed the murder of Muhammad Siddiq, in the area of village Dhok Lakhan, in furtherance of their common intention. Gulzar alias Gulla and Ghulam Safdar were also sent up alongwith the aforesaid accused to face their trial under section 302/109, P.P.C. Gulzar alias Gulla was acquitted under section 265‑K, Cr.P.C. on 18‑5‑1981. Ghulam Safdar absconded during the trial and proceedings under section 512, Cr.P.C. were taken against him. By judgment, dated 16th December, 1982 Muhammad Safdar, Muzaffar Khan and Mahbub were acquitted while Akhtar Hussain was convicted under section 302, P.P.C. and sentenced to death subject to confirmation of this Court and a fine of Rs.10,000 or in. default in the payment thereof to undergo R.I. for three years. Out of the fine, if recovered, a sum of Rs.5,000 was ordered to be paid to the legal heirs of tile deceased as compensation. Akhtar Hussain convict has appealed and the case is also before us on reference for confirmation of his deal sentence. Saeed Akhtar complainant has filed Criminal Revision No. 69 of 1983 against the acquittal of Muhammad Safdar, Muzaffar Khan and Mahbub Khan accused. All these matters shall be disposed of by this judgment.
2, The brief facts of the prosecution case are that Saeed Akhtar complainant is a driver by profession. On 17‑10‑1979, at about 9 p.m. he parked his Suzuki‑van as usual in a garage at Dhamial Road, Bakra Mandi, Rawalpindi. He was about to proceed to his house situate in village Dhok Lakhan, when his maternal‑uncle Muhammad Siddiq deceased came there with his truck. The complainant sat with him in his truck and both of them proceeded towards the village. They reached the village at about 9‑30 p.m. and parked the truck in front of the house of Sarwar alias Yusuf. Muhammad Siddiq deceased proceeded towards his house. Saeed Akhtar complainant locked the truck and followed him. When the deceased was in a lane near the house of Sarwar alias Yusuf, the accused persons, namely, Akhtar Hussain, Mahboob, Muhammad Safdar and Muzaffar Khan armed with guns appeared there. Muhammad Safdar raised a Lalkara that the deceased should not be spared, upon which Akhtar Hussain accused fired his gun hitting the deceased in the chest as a result of which he fell down. The remaining three accused also fired one shot each at the deceased but he was not hit as he had already fallen down. Saeed Akhtar complainant raised alarm attracting Banaras and Mehfooz P.Ws. who also saw the occurrence in the light of electric bulbs of a mosque situate in the same lane. The deceased succumbed to his injuries at the spot. The accused persons fled away taking their guns with them.
The motive alleged by the prosecution was that two months prior to the occurrence Muhammad Safdar had abused the mother of Muhammad Siddiq deceased, upon which the deceased had slapped the aforesaid accused. The respectables of the locality tried to effect a compromise between them but their efforts could not succeed.
After the occurrence Saeed Akhtar complainant went to Police Station Saddar Beeruni, Rawalpindi, and reported the occurrence to Muhammad Nawaz S.I./S.H.O. at 10‑30 p.m. vide F.I.R. Exh.P.G.
3. After recording the F.I.R. Muhammad Nawaz S.H.O. reached the spot. He prepared injury‑statement Exh.P.O. and inquest report Exh.P.Q of the dead body of Muhammad Siddiq deceased and despatched it to the mortuary for post‑mortem examination. On 18‑10‑1979 he secured some blood‑stained earth from the spot and made it into a sealed parcel vide memo. Exh.P.K. He arrested Muhammad Safdar, Muzaffar Khan and Mahbub Khan on 21‑10‑1979. Akhtar Hussain accused was arrested in a case under section 13 of the West Pakistan Arms Ordinance, 1965 on 15‑10‑1979. On 24‑10‑1979 while disposing of his bail application in the said case Mr. Saeed Akhtar, Magistrate First Class, Attock, ordered that his custody be handed over to Rawalpindi police as he was wanted in a case under section 302, P.P.C. (present case). The S.H.O. formally arrested him in this case on 25‑10‑1979. On 1‑11‑1979 Muhammad Safdar accused led to the recovery of .12 bore gun (P.12), two cartridges (P.13/1‑2), bag (P.14) and licence (P.15) vide memo. Exh.P.R. On 3‑11‑1979 Akhtar Hussain accused led to the recovery of .12 bore gun (P.6) vide memo. Exh.P.J. On 6‑11‑1979 the S.H.O. arrested Ghulam Safdar accused and on his personal search recovered wrist‑watch (P.7), diary (P,8), handkerchief (P.9), shift‑card (P.10) and attendance‑card (P.11) vide memo. Exh.P.M. Alongwith these articles he also recovered letter Exh.P.L. vide memo. Exh.P.N. Gulzar alias Gulla accused was arrested by Niaz Muhammad S.I. (P.W.15) on 27‑12‑1979. The S.H.O. summoned Raja Muhammad Ishaq, Finger Print Expert on 13‑12‑1979 who compared the thumb‑impressions of Akhtar Hussain accused with his alleged thumb‑impressions on Register No. 1 of District Jail, Attock and found that the thumb‑impression on the Jail Register was different from the thumb‑impressions on the sample‑paper. After the investigation the accused persons were challaned.
4. On 18th October, 1979 at 10 a.m. Dr. Muhammad Aslam Arshad, Medical Officer, D.H.Q. Hospital, Rawalpindi, conducted the autopsy on the dead body of Muhammad Siddiq and found an oval wound of entrance 2.5 c.m. x 3 c.m. on the front of right chest, 4.5 c.m. from the nipple at 3 o'clock position. The direction of the wound was from right to left and forward. There was no blackening or burning on the edges of the wound.
In the opinion of the doctor death was due to shock and haemorrhage as a result of aforesaid injury which was sufficient to cause death in the ordinary course of nature.
5. In support of its case the prosecution examined three eye‑witnesses, namely Saeed Akhtar complainant, Mehfooz Elahi and Banaras P.Ws. The prosecution also relied on the evidence relating to motive and recovery of gun at the instance of the appellant.
6. The accused persons pleaded not guilty to the charge and denied the prosecution allegations. Akhtar Hussain appellant admitted that Muzaffar and Muhammad Safdar accused were his maternal‑uncles and Mahbub Khan was the son of his mother's sister. He contended that he has been falsely implicated due to enmity. When asked whether he was arrested on 25‑10‑1979 from the premises of District Courts, Attock, he stated that he was arrested on that date from District Jail, Attock and not from the premises of District Courts, Attock. He maintained that on the day of occurrence he was confined in District Jail, Attock in connection with a case under section 13 of the West Pakistan Arms Ordinance, 1965 in which he was arrested on 15‑10‑1979. He was sent to jail by the order of a Magistrate on 16‑10‑1979. He tendered copy of sentence slip Exh.D.B., copy of remand order Exh.D.C. and copy of bail order Exh.D.D. and closed his defence.
7. After examining the evidence on the record the learned trial Judge agreed with the defence counsel that the recoveries of .12 bore guns from the possession of Safdar and Akhtar Hussain do not connect either of these two accused with the commission of murder. He observed that recovery of gun from Akhtar Hussain was established but it was not proved that the fatal shot was fired from the said gun. He further observed that motive alleged by the prosecution was proved and ocular evidence against the appellant was supported by the medical evidence. He, therefore, convicted and sentenced the appellant as mentioned above. He, however, acquitted Muzaffar Khan, Muhammad Safdar and Mahbub Khan accused by giving them the benefit of doubt.
8. At this stage it need be mentioned that on 13‑12‑1979 Muhammad Ishaq, Finger Print Expert (P.W.3) compared the alleged thumb impression of the appellant in the Attock Jail Admission Register with his thumb‑impressions on sample‑paper Exh.P.A. and opined that the same was different from the thumb‑impressions on the said sample‑paper. During the hearing of appeal we considered it necessary in the interest of justice that the alleged thumb‑impression of the appellant contained in the Jail Register be got compared with his specimen thumb‑impressions by another finger print expert. We, therefore, summoned the appellant from jail and directed the Incharge of the Finger Print Bureau, Lahore to depute a Finger Print Expert for that purpose. On 9th February, 1985, two experts, namely, Muhammad Daud and Muhammad Idress obtained the specimen thumb‑impressions of the appellant in Court. After comparing the same with the alleged thumb‑impression of the appellant contained in the Jail Register against Entry No. 2791, they opined that the specimen thumb‑impressions of the convict were different from the one contained in the Attock Jail Admission Register. Thereafter the appellant produced Muhammad Yaqub, Officer Incharge, (retired) Finger Print Bureau, Punjab in defence. After comparing the alleged thumb‑impression of the appellant contained in. Attock Jail Admission Register with the specimen thumb‑impressions C.W.2/B he stated that the thumb‑impression contained in the Jail Register was different from the specimen right and left thumb‑impressions on sample‑paper C.W.2/B.
9. Learned counsel for the appellant contends that the motive alleged by the prosecution has not been substantiated, the alleged eye‑witnesses are interested; their presence at the spot is not established and their evidence is belied by the medical evidence. He further submits that at the time of occurrence Akhtar Hussain appellant was in jail in connection with a case under the Arms Ordinance.
Learned counsel for the State and the complainant submit that the prosecution evidence has been rightly relied upon by the trial Court. They contend that the defence of alibi having failed, it should be taken as an adverse circumstance against the appellant.
10. The motive alleged in the F.I.R. was that two months prior to the occurrence Muhammad Safdar accused had abused the mother and wife of the deceased. The deceased reprimanded aforesaid Muhammad Safdar and Muzaffar accused and also slapped them. Muhammad Riaz and Raja Gulzar (not produced) tried for a compromise between the parties but it could not be effected. It is alleged that the accused persons committed the murder to take revenge of the aforesaid earlier incident. Muhammad Riaz and Gulzar P.Ws. who allegedly tried for a compromise were given up by the prosecution as unnecessary. Saeed Akhtar complainant and Mehfooz Elahi P.W. supported the prosecution version of the motive but in cross‑examination they admitted that they were not present at the time when Muhammad Safdar abused the mother/ family members of the deceased and the latter slapped him. There is thus no evidence in support of the prosecution version of the motive and the same remains unsubstantiated.
11. At the trial Saeed Akhtar complainant, Mahfooz Elahi and Banaras P.Ws. supported the prosecution version of the occurrence. Saeed Akhtar complainant is the nephew (brother's son) of the deceased, Mehfooz Elahi P.W. is married to the sister of the deceased while Banaras P.W. is the maternal‑uncle of the deceased. The alleged eye‑witnesses are, thus, closely related to the deceased.
Banaras P.W. admitted that he and Fazal Dad were challaned for causing injuries to one Mansab Dad and were sentenced to R.I. for three months each. In that case Mir Zaman, father of Muzaffar accused, was a P.W. He further admitted that a dacoity was committed in the house of Mansab Dad of village Dhok Lakhan for which he and others were challaned. He expressed ignorance if aforementioned Mir Zaman, father of Muzaffar accused, was a P.W. in that case. He admitted that after that case aforesaid Mansab Dad and his associates assaulted him. He further admitted that Muzaffar accused and Abdul Rehman, father of Akhtar accused, participated in the commission of said offence. Banaras P.W. is closely related to the deceased and also to the eye‑witnesses, namely, Screed Akhtar and Mehfooz Elahi. It is evident that he is inimical towards the families of acquitted accused Muzaffar Khan and Akhtar Hussain appellant. In that view of the matter the evidence of the alleged eye‑witnesses would require a very cautious scrutiny.
12. Saeed Akhtar complainant claims that he is a driver by profession. He stated that on the fateful night at 9 p.m. he parked his Suzuki‑van in a garage at Dhamial Road, Bakra Mandi, Rawalpindi, and was about to proceed to his house in Dhok Lakhan when the deceased came there driving his truck. He sat with him in his truck and both of them proceeded to the village. On reaching there, the deceased parked the truck in front of the house of Sarwar and when he was on way to his house, the accused persons appeared there and attacked him. The distance between the village of the complainant and the alleged parking place of the Suzuki‑van was 3-4 miles. Both the places were connected by a road. It is in the statement of the complainant that Suzuki could go right upto courtyard of his house. If it was so, then it is not understandable why he did not go to his house on his own Suzuki‑van.
The complainant further stated that the Suzuki belonged to him and he had purchased it one year prior to the occurrence; it was not registered in his name but stood registered in the name of its previous owner. He however, could not tell the name of that owner. He stated that the said Suzuki was used‑for carrying the passengers but expressed ignorance about the number of route on which it used to ply. He stated that he was driving the vehicle for the last 5‑6 years buy admitted that he was not having any driving licence. In view of the, above the story relating to Suzuki business does not ring true and appears to have been introduced just for creating an occasion for the complainant to accompany the deceased.
Mehfooz Elahi (P.W.10) is a resident of village Khanna Kak situate at a distance of 12/14 miles from the village of occurrence. He stated that he went to the house of the deceased to have negotiations with him for arrangement of the Thursday ritual of his mother‑in‑law. He admitted that he did not state so before the police. It is in his statement that the mother‑in‑law of the deceased, namely, Mst. Barkat Jan died in village Dawar three weeks before the occurrence and he and the deceased attended her funeral ceremony; the deceased stayed in her house for 3‑4 days and he had been meeting him in those days in the house of his mother‑in‑law. He further stated that he kept visiting the house of Mst. Barkat Jan on every alternate or third day upto the 40th day of her death and the deceased also visited her house on every alternate day. Thus, according to his own showing, Mehfooz Elahi P.W. had already given sufficient time to the deceased on the demise of his mother‑in‑law. It is in evidence that Mst. Barkat Jan had, died in village Dawar and her last ceremonies were performed in the said village. In the circumstance there was no occasion for any one to go to village Dhok Lakhan in connection with the arrangement of any rituals. Mehfooz Elahi P.W. admitted that Sabir and Majid are also husbands of the sisters of the deceased but none of them visited the house of the deceased on the day of occurrence "for discussing about the ritual". There was no special reason for Mehfooz Elahi P.W. to go to the house of the deceased in connection with Thursday ritual and explanation offered by him for his presence in the village of occurrence is altogether baseless.
Banaras P.W. had direct enmity with the families of Akhtar Hussain appellant and acquitted accused Muzaffar Khan. The occurrence took place at 9‑30 p.m. and it is very strange that only Mehfooz Elahi and Banaras P.Ws. who are very closely related to the deceased happened to be quite near and got attracted to the alarm of Screed Akhtar complainant. In the circumstances, the presence of the alleged eye‑witnesses at the spot is not established.
The learned trial Judge has observed that the ocular evidence is supported by the medical evidence. We do not agree with this finding. Screed Akhtar complainant stated that the deceased was fired from a distance of 3‑4 yards. The medical evidence shows that six pellets and three pieces of plastic were removed from the dead body which indicates that he was fired from a very close range. The doctor stated that the pellets had entered the body en masse and the distance between the muzzle and the victim was about two feet. Even otherwise the medical evidence only shows that the deceased died of a fire‑arm injury. It does not render any help in determining the identity of the assailant. In the circumstances, we are of the view that the prosecution has failed to prove its case against the appellant as well.
13. On behalf of the persecution it was vehemently contended that the defence of alibi having broken down it should be taken as a circumstance leading to inference of guilt. It is true that the thumb impression against entry No. 2791 of the Jail Register was not proved to be of the appellant, but this circumstance does not give rise to any adverse presumption. In Elahi Bakhsh and another v. The State 1969 S C M R 584 the Supreme Court held: "if an accused person in his defence is entitled to take up whatever plea he likes, true or false, the fact that he fails to establish all or any one of them, should not recoil to his disadvantage for the drawing of any inferences regarding his guilt which has to be clearly and satisfactorily established by the prosecution." If an accused fails to prove the plea of alibi, as in the present case, the burden still remains on the prosecution to prove they case against him beyond all reasonable doubt.
14. For all the foregoing reasons, we accept this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. He shall be set at liberty forthwith if not required to be detained in any other case.
The death sentence of Akhtar Hussain appellant is not confirmed.
Criminal Revision No. 69 of 1983 automatically fails and is dismissed.
S. G. D.
Appeal allowed.