SHAKOOR ALAM Versus State
MALIK HAQ NAWAZ, J.--- This is a criminal appeal against order/judgment dated 11-06-2018 passed by the learned Additional Sessions Judge District Gilgit, wherein the learned trial Court has passed conviction against the appellants.
2. Brief facts of the case as narrated in the FIR, which are mentioned in the impugned judgment are re-produced as under:-
"That on 15-06-2016 at 20:30 hours, complainant Nowsherwan son of Khush Mir resident of Jalalabad submitted a written application Exh-PW-1 in Police Station Danyore stating therein that on the same date Shakoor Alam (Accused) who was his brother in law, came to his home and after exchanging hard words on a petty issue went from there. He (complainant) was sitting with his brother Basharat Hussain, Shakoor Alam (Accused) along with his real uncle Maqbool Hussain (Accused) and Tanveer Hussain (Accused) came to his home. They were carrying clubs and stones in their hands. On reaching there all three persons began to hit him and his brother with stones and clubs and also used abusing language. During that time his (complainant's) father came there and tried to rescue but they also pelted stones on him. Shakoor Alam (Accused) caused severe injury on head of his brother Basharat Ali by hitting him with a stone, who fell down there. Stone also hit on back of his father. Both were critically injured and he shifted them to Sehat Foundation for treatment.
3. The prosecution closed the evidence after adducing 7 PWs. The learned trial Court recorded the statements of accused under section 342, Cr.P.C. and delivered the judgment after final arguments in the light of evidence recorded before the Court. The learned trial judge has passed the following order by convicting appellants/accused:-
"47. There are no mitigating circumstances exist therefore, I, as such, convict the Accused Shakoor Alam, Maqbool Hussain and Tanveer Hussain:-
1. Under section 302/34, P.P.C. for committing Qatl-i-amd of Basharat Ali son of Khush Mir resident of Jalal Abad in furtherance of their common intention and passed death sentence. They shall be hanged by neck till death.
2. Under section 452/34, P.P.C. for trespassing house of complainant with intent to commit an offence with preparation, in furtherance of their common intention and passed a sentence of seven years' R.I.
3. Under section 337-F/34, P.P.C. for causing hurt on back of Khush Mir/PW No. 2 in furtherance of their common intention and passed a sentence of Daman Rs. 10,000/-and one month's R.I. Daman should be paid to LRs of deceased and in case of non- payment Accused shall undergo one month's S.I. in addition to main sentence."
4. We have heard .the arguments advanced by the learned counsel for the parties and perused the record of the case thoroughly.
5. The arguments of the learned counsel for the appellants could be summarized as under:- a. There is complete mis-reading/non-reading of evidence by the trial Court, which resulted into grave mis-carriage of justice. b. In FIR, no intention to kill has been shown, which was subsequently introduced by the complainant. This dishonest improvement changed complexion of the story, which aspect went unnoticed by the learned trial Court. c. The case of the prosecution is full of doubt but strangely each and every doubt has been resolved in favour of prosecution instead of defence. d. Prosecution case is full of material contradictions, which have been ignored by the learned trial Court. e. The statements of two star witnesses PW-1 Muhammad Nowsherwan and PW-2 Khush Mir reveal that there were no allegations to commit Qatl-i-amd. f. The motive to commit Qatl-i-amd is completely missing in the FIR, which version was introduced later on. g. There is no evidence as to who inflicted the fatal blow and the recoveries of sticks/stone have been effected in the absence of the accused, which legally cannot be used against the accused. h. The death of deceased was not intentional rather it was a case as one of the Qatl-e-Khata.
Deceased Basharat was not a target as such the charge under section 302, P.P.C. was unwarranted and the charge be converted to section 319, P.P.C.
6. The learned counsel relied on 2000 PCr.LJ 47, 2003 MLD 1409, 2008 YLR 408, 2008 SCMR 1727 and 2011 YLR 1853.
7. On the other hand the learned Dy. Advocate General assisted by Messrs Munir Ahmed and Assadullah Khan Advocates submitted that it was a day light, well planned, well prepared and brutal murder, which was committed in furtherance of common intention of all the three accused. They based their arguments on the following main points:- a. First Information Report was promptly lodged without any loss of time and names of the accused/witnesses are mentioned therein. b. PW-2 Khush Mir's presence is established at the place of occurrence and the stamps of injuries on his person have not been challenged by the defence. c. Occular evidence is fully supplemented by the medical evidence as the same is in line with the story put forth by the complainant/eye-witnesses. d. FSL report is positive and is a strong piece of corroboratory evidence. e. Injury sheet Exb. PW-4-A of deceased Basharat Ali, injury sheet of injured Khush Mir Exb. PW-4/B and Exb. PW-1/B recovery of stones, Exb. PW-1/C recovery of Clubs, site plan Exb. PW-6/B, inquest report Exb. PW-6/C, injury sheet Exb. PW-3/A blood stained kamiz and Autopsy report Exb. PW-5/A are also available in support of prosecution cases. f. Prior to the occurrence accused Shakoor Alam came to the house of complainant and after, exchange of some hot words went back to his home and came back again with his co-accused, which shows their pre-concert and pre-medication to commit the offence. g. All the accused were armed with stones/clubs and committed the murder of deceased Basharat Ali in the house of the complainant, without any legal justification. h. The witnesses have not been cross-examined about the presence of the witnesses/accused at the place of the occurrence and the time of occurrence have not been challenged by the defence. i. the conviction awarded by the learned trial Court was legal and justified in the given circumstances of the case.
8. The learned counsel relied on 1969 SCMR 641, 1970 SCMR 576, PLD 1977 SC 446, PLD 1983 SC 35, 1990 CLC 274, 2000 PCr.LJ 47, 2002 PCr.LJ 1798, 2005 PCr.LJ 310, 2005 SCMR 1958, PLD 2006 SC 354, 2006 PCr.LJ 931, 2006 SCMR 1796, 2008 SCMR 1527, 2009 SCMR 99, 2010 YLR 1125, 2010 MLD 1376, 2010 YLR 1792, 2013 PCr.LJ 578, 2014 PCr.LJ 1649 and 2016 YLR 2739.
9. We have heard the learned counsel for the parties at a considerable length and also minutely examined. the record of the case with their able assistance. The case laws referred by both the parties have also been examined and considered.
10. The case of the prosecution is based on the following pieces of evidence:- a. Occular evidence. b. Medical evidence. c. Recoveries. d. Dying declaration of deceased. e. Forensic Laboratory reports.
11. Occular evidence in the instant case has been furnished by PW-1 Muhammad Nowsherwan and PW-2 Khush Mir, who himself is an injured witness. The presence of these two PWs at the place of occurrence, which is their own house, is not denied rather impliedly admitted by the defence and despite lengthy and searching cross-examination, their evidence could not be shattered. The statements of both these PWs are in line with each other and leave no doubt about their natural, straight forward, coherent and convincing evidence. The contention of the learned defence counsel that both these PWs are closely related to deceased, hence their evidence should be excluded from the consider is out rightly rejected as the occurrence took place in the house of the above two PWs, where their presence was natural and even otherwise, the evidence of a related witness cannot be discarded, merely because of relationship with the deceased. The truthfulness of a witness and the intrinsic worth of the witness is the main criteria, either to believe or not to believe a particular witness. The defence has not brought a single suggestion on record, whereby it could be presumed that there was any motive to falsely implicate the accused in the case. The above two PWs have categorically charged the accused for active participation in the case in circumstance of their common intention. As evident from the statement of PW-2 Khush Mir, he tried to separate the accused and the deceased/complainant. This PW goes on to say that during quarrel accused Tanveer Hussain caught hold of deceased and accused Shakoor Alam hit a stone on the head of the deceased. The statement of both the above PWs is corroborated from the injury sheet of PW-2 Khush Mir, autopsy report and post mortem of deceased.
12. The postmortem on the dead body of the deceased Basharat Ali was conducted by Dr. Abdul Latif. The Doctor has been examined in the trial Court as PW-5 and postmortem report has been exhibited in the trial Court as Exh. PW-5/A. It finds mention in Exh. PW-5/A in the heading of "External Examination" that there was an irregular shape lacerated wound of 5/7 cm on right temporal region with underlying fracture of bone. In the final opinion the medical officer mentioned that "in ordinary case of life such type of injuries were sufficient to cause death. The head of deceased was hit from right side with a "blunt object". The contention of the learned counsel that the time of death does not coincide with the time of occurrence is not tenable as it clearly finds mention in "brief story" of Exh. PW-5/A that the injured was shifted to DHQ Hospital Gilgit on 15-06-2016 at night time and he expired on 16-06-2016 at early in the morning. The postmortem was conducted at 08:30 a.m. on 16-06-2016, which leaves no doubt in our mind that the death of deceased was caused by a "blunt object" as stated by the PW that accused Shakoor Alam inflicted the stone blow on the head of deceased Basharat Ali.
13. During visit of place of occurrence the I.O. of the case recovered one stone from the compound of the complainant on his pointation and prepared recovery memo Exh. PW-1/B and likewise 3 broken dandas were also recovered therefrom, which were allegedly used in commission of offence vide recovery memo Exh. PW-1/C. The recoveries were not effected in presence of the accused. And recovery which is effected in the absence of accused cannot be used against him. Needless to say that in such like cases, where occular evidence is up to the mark, the evidence of recoveries even if excluded from the consideration will not have any material bearing on the case.
14. PW-3 Muhammad Ismail, who is real brother of the deceased while appearing in the Court stated that his brother told him that he was hit with a stone by accused Shakoor Alam. The PW-3 Muhammad Ismail though not cross-examined on the point of making of "dying declaration" but we as an abundant caution do not attach much weight to the statement of PW-3, who himself stated that my deceased brother then injured was unconscious. When doctors were available in Sehat Foundation it would have better to get a fitness certificate from a doctor to the effect the then injured was stable and able to talk. If a witness is not cross-examined on a material point, which is otherwise not proved from the attending circumstances, it does not mean that such deposition must have to be accepted as a gospel truth. Each criminal case is seen and decided according to attending circumstances and on the basis of cumulative appreciation of evidence.
15. The blood-stained clothes of the deceased were submitted to FSL, Peshawar, which report has been exhibited in the trial Court as Exh. PW-7/D and is positive.
16. In view of above discussion we are of the view that prosecution has brought home the charge against the accused without any shadow of doubt, as their presence and active participation at the place of the occurrence has not been seriously challenged. The only question whether the accused were sharing common intention for commission of offence was to be seen from the conduct of the accused and attending circumstances. It is in the statement of PW-1 Muhammad Nowsherwan that accused Shakoor Alam was standing in the lawn of complainant and when asked to leave the lawn he started quarrelling with the complainant and went away by telling that he will beat him while leaving the home of the complainant. As per statement of PW Nowsherwan, accused Shakoor Alam returned after 5/10 minutes. The said PW further stated that the accused came back with his co-accused namely Tanveer Alam and Maqbool Hussain, who were armed with stones and clubs and started beating them. PW-2 Khush Mir is son of complainant and is an eye-witness, who stated that when he returned from bazaar he saw that the accused were quarrelling with Nowsherwan and Basharat Ali. As discussed supra, this PW was injured during fight and his injury sheet has been exhibited in the trial Court.
17. We thoroughly scanned whole of the evidence and arguments of both the learned counsel for the parties. The contention of the learned defence counsel that it was not a Qatl-i-amd and was Qatl-i-Khata falling under section 319, P.P.C. and the learned trial Court erred while convicting accused under section 302, P.P.C. is devoid of any legal force. Section 300, P.P.C. and section 318, P.P.C. are reproduced for the purpose of ready reference.
Section 300, P.P.C. Qatl-i-amd:-
Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-i-amd.
Section 318, P.P.C. Qatl-i-Khata:-
Whoever, without any intention to cause death of or cause harm to, a person causes death of such person, either by mistake of act or by mistake of fact, is said to commit qatl-i-khata.
18. The reproduction of above provisions of law shows that section 318, (Qatl-e-Khata) is limited to causing of death by mistake of an act or mistake of fact, without there being any intention to cause death. The learned counsel cited an illustration that if a stick or a stone blow is inflicted, which are normally not used as weapon of offence, the offence would fall within the purview of Qatl-i-Khata, is devoid of any legal force. Two illustrations have been mentioned to define Qatl-i-Khata, which are reproduced for the purpose of convenience:-
Illustrations
(a) A aims at a deer but misses the target and kills Z who is standing by. A is guilty of qatl-i -khata.
(b) A shoots at an object to be a boar but it turns out to be a human being. A is guilty of qatl-i- khata.
19. Keeping in view the above illustrations, it leaves no doubt that the case of the appellants was one of Qatl-i-amd and not of Qatl-e-Khata. The learned trial Court in the impugned judgment has exhaustively dealt with the above contention of the defence in accordance with the law and we also endorse the same.
20. We deliberated a lot about the quantum of sentence awarded to the accused. Keeping in view that prosecution has paved its case up to the hilt up to the extent of convict/appellant Shakoor Alam and Tanveer Hussain. The sentence of death awarded to Shakoor Alam is maintained as he inflicted fatal blow on the head of deceased. Murder Reference No.1/2018 up to his extent is answered in "AFFIRMATIVE". Death sentence awarded to Tanveer Hussain is converted into imprisonment for life as he caught hold of the deceased and facilitated commission of murder of deceased Basharat Ali. Murder reference up to his extent is answered in "NEGATIVE". The benefits of section 382 are extended to him. Accused Maqbool Hussain son of Ghulam Rasool is acquitted from the charges, as his presence at the time of occurrence is established but no overt act is attributed to him by the PWs. He shall be released forthwith if not required to be detained in any other case. Likewise his murder reference is also answered in "NEGATIVE". While extending the benefit of doubt to convict/appellant Maqbool Hussain the wisdom is drawn from the judgment of Hon'ble Supreme Court of Pakistan reported in PLD 2002 SC 1048, wherein some golden principles for extending benefit of doubt have been highlighted:-
"If there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of produce which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple word it means that utmost care should be taken by the Court in convicting an accused. This rule is antithesis of haphazard approach or reaching a fitful decision in a case. This rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) "'the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
21. We noticed that the learned trial Court has not imposed compensation to be paid to the heirs of deceased, which was mandatory unless and until Court for certain reasons to be recorded in writing direct otherwise. No reasons for non-awarding of the compensation has been mentioned in the judgment. We in the circumstances award a sum of Rs.500000/- (Five lacs) compensation under section 544-A, Cr.P.C., accused Shukoor Alam and accused Tanveer Hussain which on realization shall be paid to the legal heirs of deceased Basharat Ali. In default of payment the convict/appellants shall undergo 01 years simple imprisonment.
22. The Criminal Appeal No. 18/2018 is partially allowed and Murder Reference No. 01 /2018 is answered in "AFFIRMATIVE" up to extent of convict/appellant Shakoor Alam, while the same is answered in "NEGATIVE" up to the extent of convict/appellant Tanveer Hussain and Maqbool Hussain as discussed in para 20 of the judgment. Affirmative
23. File be consigned to record after completion.
JK/207/GB Order accordingly.