HABIB IQBAL Versus MUSHTAQ KHAN
RAZA ALI KHAN, J. ---The above titled criminal appeal as well as reference, filed against judgment passed by the learned District Criminal Court, Rawalakot, dated 11.12.2015, arise out of common judgment and can conveniently be decided simultaneously, hence, were heard together and are decided through this single judgment.
Facts forming background of the captioned cases are that on 04.09.2013, Mushtaq Khan son of Muhammad Ayub Khan, complainant, filed a written application Exh.PA, at Police Station Rawalakot, stating, therein, that the applicant is resident of village Hussain Kot Thanda Nara. Today, i.e. 04.09.2013 at 2:30 p.m. accused Habib Iqbal son of Nazir Muhammad caste Sudhan resident of Chowki Hussain Kot came to the house of brother-in-law of the complainant namely Muhammad Shabbir son of Ali Sher Khan caste Sudhan resident of Hussain Kot. Accused had two .30 bore pistols in his hands who started firing with the intention to kill. Due to firing Zulfiqar son of Muhammad Ayub, Muhammad Yaseen son of Abdul Hussain, Ali Sher Khan son of Lal Khan, Barkat Hussain son of Jangi Sher Khan, Akhter Jan wife of Muhammad Saleem and Muhammad Altaf son of Muhammad Ayub sustained serious injuries. On the way to CMH Rawalakot injured Zulfiqar Ahmed son of Muhammad Ayub succumbed to the injuries while Muhammad Yaseen son of Abdul Hussain died at Combine Military Hospital. Injured Ali Sher, Barkat Hussain Akhtar Jan and Muhammad Altaf were admitted to Combine Military Hospital Rawalakot. The motive behind the occurrence was stated that predecessors of accused Habib lqbal were asking for the hand of daughter of brother-in-law of the complainant Muhammad Shabbir for accused Muhammad Habib, however, the brother-in-law of the complainant refused and the marriage of daughter of brother-in-law of the complainant was fixed with Sudheer son of Yaseen on 07.09.2013. The occurrence was stated to be witnessed besides the complainant, Muhammad Imtiaz, Muhammad Fazal, Muhammad Shabbir, Muhammad Nisar and other people of the locality.
On this report FIR No.261/13 Exh.PB was registered at Police Station Rawalakot in the offences under sections 302/324 and 337-A(F), A.P.C. on 04.09.2013. Injured Ali Sher Khan also succumbed to the injuries. The postmortem of the deceased were conducted. The police recovered empties of .30 bore pistols from the places of occurrences. The accused was arrested by the police on the same day and the weapons of crime .30 bore pistols) were recovered from him. During investigation the police added offences under sections 337-U, 337-F(4), 337-A(1), A.P.C. and 13/20/65, Arms Act. After completion of formal investigation the police submitted report under section 173, Cr.P.C. before District Criminal Court Rawalakot on 11.12.2013. The statement of the accused under section 265-D, Cr.P.C. was recorded on 19.12.2013. The accused pleaded not guilty, whereupon the prosecution was asked to lead evidence. At the completion of prosecution evidence the statement of the accused under section 342, Cr.P.C. was recorded on 23.06.2015, who again pleaded not guilty and claimed innocence, however, refused to produce evidence in defence. At the conclusion of the trial the learned District Criminal Court Rawalakot vide impugned judgment dated 11.12.2015 convicted and sentenced accused-appellant as under:-
1. Under section 302, A.P.C. for the murder of Zulfiqar son of Muhammad Ayub, awarded him death sentence as Qisas.
2. Under section 302, A.P.C. for the murder of Ali Sher son of Lal Khan awarded him death sentence as Qisas.
3. Under section 302, A.P.C. for the murder of Muhammad Yaseen awarded him death sentence as Qisas.
4. The accused was also ordered to pay Rs.15,00,000/- each total Rs.45,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased and if he fails to pay compensation he shall undergo for further 6/6 months simple imprisonment.
5. Under sections 337-U and 337-A(1), A.P.C. for causing injuries to Barkat Hussain, awarded punishment of Arsh Rs.84,014/- and Daman Rs.10,000/- respectively.
6. Under section 337-F(4), A.P.C. for causing injury to Muhammad Altaf awarded him punishment of Daman Rs.10,000/-.
7. Under section 337-D, A.P.C. for causing injury to Akhtar Jan awarded him punishment of Arsh Rs.5,60,090/-.
8. Under section 324, A.P.C. for causing injuries to Barkat Hussain, Muhammad Altaf and Akhtar Jan, awarded him 10/10 years rigorous imprisonment and Rs.20,000/- each as fine and in case of non-payment the accused shall undergo for further 6/6 months simple imprisonment.
9. Under section 13/20/65, Arms Act awarded him 5 years rigorous imprisonment and Rs.10,000/- fine and in case of non-payment of fine, he shall undergo for further 3/3 months simple imprisonment.
The Appeal No.33/2015 has been filed by convict-appellant for setting-aside the impugned judgment and reference No. 77/2015 has been sent by the trial Court for confirmation of death sentence awarded to the convict-appellant.
Sardar Asim Irshad, the learned counsel for the convict-appellant vehemently argued that the accused-appellant is innocent, who was involved in the case with mala-fide intention. The learned counsel further argued that 24 witnesses were cited in the challan to prove the prosecution's story but only 21 witnesses have been produced and P.Ws.6, 8 and 14, who were important witnesses have been abandoned by the prosecution, hence, adverse inference is liable to be drawn. The learned Advocate further argued that in this case the trial has not been conducted fairly. He contended that as per prosecution case the recoveries of pistols, empties of 30 bore pistols, blood stained clothes, earth and stone etc. were made on the day of occurrence but the same were sent for chemical examination on 10.10.2013 and Article 2 was received in the Laboratory in December, 2013, hence, the same had lost evidentiary value. The learned Advocate further contended that previous enmity between the parties was established from the statement of Mushtaq Khan, complainant, hence, the whole story becomes doubtful. The learned Advocate submitted that as per statement of the accused under section 342, Cr.P.C. Exh.LY, PY/2, PW and PX were not shown to the accused to reply the same. He further submitted that all the prosecution witnesses are related and interested witnesses and the previous enmity is established, hence, on the basis of evidence of interested witnesses the accused could not be convicted. The learned counsel stated that as per site plan Sher Hussain, Nisar Hussain and Altaf Husain were shown in front of Dub, from where the place of occurrence could not be seen and the place of occurrence was also unseen from the place where complainant and Mehwish, P.W.9 have been shown in the site plan, therefore, they cannot be treated as eye-witnesses of the occurrence. The learned Advocate added that doctor who examined Akhtar Jan has not been produced as witness, similarly Dr. Tanveer Hussain who prepared report was also not prepared as witness and as secondary evidence Tahir Hussain Record Keeper was produced as witness. He further added that allegedly recovered empties were not sent for matching whether the same were fired from the alleged recovered pistols. The learned Advocate pressed into service that fact of the matter is that a quarrel occurred between the complainant party and as a result of cross firing they received injuries and died but mala-fidely allegation was levelled against the convict-appellant. The learned Advocate also argued that prosecution story is full of doubts and the appellant is liable to be acquitted by extending him the benefit of doubt. The learned Advocate stated that in alternatively it is not the case of major punishment in light of mitigating circumstance. He relied upon following case law:
1. Nuzhat Bibi v. Shabbir Hussain and 2 others 2008 YLR 2866.
2. Dalmir and another v. The State (1970 SCMR 840)
3. Muhammad Asghar v. The State (1996 PCr.LJ 136)
Sardar Iftikhar Ahmed, the learned counsel for the complainant argued that this is a day light occurrence which is proved from the statements of eye-witnesses as well as injured eye-witnesses and there is even no minor contradiction in the statements of the prosecution witnesses. The learned Advocate contended that place of occurrence, manner of occurrence, time of occurrence and motive behind the occurrence are proved through the evidence brought on record, therefore, the appeal filed by convict-appellant is liable to be dismissed.
We have heard the learned counsel for the parties and gone through the record of the cases with utmost care.
At the very out set, it may be stated that this is a day light occurrence which as per prosecution story occurred on the day of 04.09.2013 at 2:30 p.m. at the house of Muhammad Shabbir son of Sher Ali Khan caste Sudhan situated at village Hussain Kot when the deceased, injured witnesses as well as the other eye-witnesses of the occurrence were gathered there because the marriage of daughter of Muhammad Shabbir was fixed for 07.09.2013. Accused, who was annoyed because Muhammad Shabbir had refused to fraternize his daughter to him, came to the house of Muhammad Shabbir and started firing with .30 bore pistols. In the FIR Muhammad Imtiaz, Muhammad Fazal, Muhammad Bashir, Muhammad Nisar were shown as eye-witnesses of the occurrence. Akhtar Jan, Barkat Hussain and Muhammad Altaf who sustained injuries in the incident were also the eye-witnesses of the occurrence. Mushtaq Khan, complainant, appeared before the trial Court and got recorded his statement on 03.02.2014. He deposed in his statement that on 04.09.2013 accused Habib Iqbal came to the house of his brother-in-law namely Muhammad Shabbir where son of the complainant was also present, and started firing. He made first fire with .30 bore pistol at Barkat Hussain son of Jangi Sher which hit him at his chin. He also made second fire at Barkat Hussain and in the meantime he, along with his sister Akhtar and niece Mehwish Shabbir went on sealing under roof. Thereafter accused entered into gallery and fired at Zulfiqar which hit him at his chest and arm. After that accused fired at Ali Sher which hit him at his belly. Afterward accused fired at Akhtar Jan which hit her at her belly and raised noise where is Mehwish and when the accused believed that Mehwish is not present at home, he went towards the house of bride. On the way accused fired at the father of bride which hit him at his chest and returned back, when he was passing from the house of complainant, brother of the complainant Altaf Hussain was coming from front side, accused, also fired at him, which hit him at his leg. Then the accused started running. Muhammad Altaf, injured P.W.2, Muhammad Fazal P.W.3, Muhammad Shabbir, P.W.4, Muhammad Nisar, P.W.5, Muhammad Aziz P.W.7, Mehwish Shabbir P.W.9, Barkat Hussain injured P.W.15 eye-witnesses of the occurrence appeared as witnesses and fully supported the prosecution story. After minute appreciation of the statements of these eye-witnesses of the occurrence, we are of the view that they strongly stuck regarding every minute details, so given in the prosecution story and there is no major contradiction in their statements regarding (i) place of occurrence, (ii) arrival of convict/accused at the place of occurrence/manner of occurrence, (iii) weapons with which convict appellant was armed, (iv) role/act of accused. Thus it appears from the perusal of the statements of these witnesses that the story narrated in the FIR and in the statement of the complainant was correct and all these witnesses ring true.
As per prosecution case, the weapons of crime 30 bore pistols were recovered on the same day in presence of Manzoor Hussain and Muhammad Razzaq. Manzoor Hussain P.W.10 and Muhammad Razzaq P.W.11 also appeared in the witness box and deposed that weapons of offence .30 bore pistols were recovered from the accused in their presence. There is no contradiction in their statements. Muhammad Fazal P.W.3 and Muhammad Aziz P.W.7 in whose presence empties of .30 bore pistols were recovered from the places of occurrences also appeared as witnesses and supported the recoveries of empties from the place of occurrence. The alleged recovered weapons of offences i.e. .30 bore pistols and empties of .30 bore pistols recovered from the place of occurrence were sent for chemical examination to the Punjab Forensic Science Agency, Lahore. After examination the examiner reported that alleged recovered pistols (weapons of offence) were found to be in mechanical operating condition with safety features functioning properly and alleged recovered empties were identified as having been fired from recovered 30 bore pistols (weapons of offences). For proper appreciation the description as well as conclusion made by the Punjab Forensic Science Agency, Lahore is reproduced as under:-
Parcel #
Description
Parcel-1
One sealed cloth bag containing one 30 caliber pistol with three magazines (Item PI) and five live rounds, having no serial number, marked as 14667/13 along with its item number, duly signed. (said to be recovered from accused Habib Iqbal).
Parcel-2
One sealed cloth bag containing one 30 caliber pistol with magazine (Item P2) and three live rounds, having no serial number marked as 14667/13 along with its item number, duly signed. (said to be recovered from accused Habib Iqbal).
Parcel-3
One sealed cloth bag containing six 30 caliber cartridge cases (Items C1, C2, C3, C4, C5 and C6), each marked as 14667/13 along with its item number, duly signed.
Parcel-4
One sealed cloth bag containing one 30 caliber cartridge case (Item C7), marked as 14667/13 along with its item number, duly signed.
Conclusions:
The item P1 pistol was examined and found to be in mechanical operating condition with safety features function properly.
The item P2 pistol was examined and found to be in mechanical operating condition with safety features functioning properly.
The items C1, C2, C3, C4, C5 and C6 cartridge cases were identified as having been fired in the item P1 pistol.
The item C7 cartridge case was identified as having been fired in the item P2 pistol.
It is also proved from documentary as well as oral evidence that causes of death of deceased persons were injuries sustained by them from fires with .30 bore pistols and the injuries sustained by injured witnesses were caused with .30 bore pistols. The defence has also not disputed the same.
It is settled principle of criminal law that the medical evidence is decisive and most reliable source to prove the nature of injuries, time of occurrence, death and kind of weapon. Whenever, prosecution through direct evidence claims nature of injury or injuries, time of occurrence, death and the kind of weapon to be in a particular manner then ocular evidence be examined with reference to the medical evidence because it is medical evidence alone which could corroborate ocular evidence. In this case, medical evidence as well as statement of the doctor fully corroborated the prosecution version.
The motive as stated in the FIR that accused was desirous to contract marriage with Mehwish daughter of Muhammad Shabbir, brother-in-law of the complainant and he committed the offences when they refused to give hand of Mehwish to the accused, is also proved from the evidence brought on record. It may also be stated here that this is a case of ocular evidence and in case of ocular evidence the motive is not necessary to be proved, however, as stated above, the prosecution has proved the motive of occurrence, hence, this fact further strengthens the prosecutions case.
In the case in hand, the place of occurrence, time of occurrence and motive behind the occurrence is almost admitted, however, to the extent of manner of occurrence the defence tried to build a story by putting suggestion to the prosecution witnesses that firing was made on behalf of complainant party with .12 bore rifle but no empty of .12 bore rifle was recovered from the place of occurrence, therefore, the manner of occurrence is also proved beyond any reasonable doubt. The presence of prosecution witnesses at the place of occurrence is natural, therefore, the conviction recorded by the Court below is justified.
The contention of the learned counsel for the convict-appellant that prosecution produced related and interested witnesses hence, their evidence cannot be considered for recording conviction, has no substance because it is well settled now that statement of a witness cannot be disbelieved mere on the ground that he is relative. Reliance can be placed on PLD 2004 Supreme Court 371, wherein the Hon'ble Supreme Court of Pakistan held as under:-
"The trial Court was not justify to reject eye-witness account furnished by complainant Khan Amir P.W. and Hakim Gul P.W. merely on the ground of being related and interested particularly when appellants had not been able to establish on record that the above mentioned witnesses had nourished any grudge or ill-will against them and deposed with a specific motive. On this aspect, reliance can be made on the case Saeed Akhtar and others v. The State (2000 SCMR 383) wherein this Court has held that mere relationship of the witnesses with the deceased would not detract from their veracity who had absolutely no motive of their own to involve the accused------Conviction in a criminal case can be recorded even on the statement of the eye-witnesses alone without there being any corroboration provided their evidence inspires confidence."
The next contention of the learned counsel for the convict appellant that evidence of Mushtaq Khan, complainant, Mehwish, Shabir Hussain, Nisar Hussain and Altaf Husain is not reliable because they were shown in the site plan at the place from where the place of occurrence is out of seen, has no substance because these witnesses appeared as witnesses and the learned counsel for the defence failed to shake their evidence about site plan despite lengthy cross-examination, thus, the aforesaid assumption is self made by the counsel for convict/appellant, is repelled.
The learned counsel for the convict-appellant during course of arguments while referring to statements of prosecution witnesses, contended that the Court below has not properly appreciated the evidence and ignored the discrepancies in the prosecution evidence. We have carefully appreciated the evidence and could not find any major contradiction or inconsistency in the prosecution evidence which may falsify the prosecution version and creates doubt.
The argument of the learned counsel for the convict-appellant that alleged recovered weapon of offence and empties were sent to chemical examiner after delay, hence, the same have lost evidentiary value is also without any force because the superior Courts have consistently held that mere sending of parcels to the chemical examiner with delay does not affect the prosecution case.
So far the argument of the learned counsel for the convict-appellant that the prosecution failed to produce P.Ws.6, 8 and 14, hence, at the most minor sentence can be awarded to the convict appellant, is concerned, it would suffice to say that it is prerogative of prosecution to produce evidence as may be necessary to prove the charge and may give up the witnesses after sufficient evidence is brought on record. It is celebrated principle of criminal jurisprudence that prosecution evidence is not tested on the basis of quantity but quality of evidence is to be examined. It is always within the wisdom of either party to produce evidence of as many witnesses as are found necessary by it to prove certain charges or facts. Reliance in this regard can be placed on case titled Saeed Khan and 5 others v. The State and another (2008 SCMR 849) wherein at page 853 it has been held as under:-
"It is prerogative of prosecution to produce evidence as may be necessary, to prove the charge and may give up the witnesses after sufficient evidence is brought on record. No inference can be drawn about the testimony of the remaining witnesses. In case the defence relies on the facts that they do not support the case of prosecution they can always be examined in defence. No adverse presumption is to be drawn in the absence of any positive evidence as has been held by this Court in the case of Mazhar Ali v. The State 2005 SCMR 523."
It is also pertinent to mention here that conviction of accused under section 337-D, Cr.P.C. for causing injury to Akhtar Jan is not justified because Mst. Akhtar Jan did not appear as witness to support the allegation that she sustained injury due to firing of accused appellant. It is well settled principle of law that if an injured witness himself does not appear to charge an accused for his injury without any disability or incompetence or reason for not appearing then the conviction of his injury cannot be recorded on the basis of other evidence. Reliance in this regard can be placed on case titled Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088), wherein at page 2100 the Supreme Court of Pakistan has pleased to observe as under:-
"Under the Injunctions of Islam, if an injured witness himself does not appear to charge an accused for his injury and the Court is not satisfied with his disability or incompetence or reason for not appearing then the conviction for his injury cannot be recorded on the basis of other evidence under Qisas provision. Qisas is a personal right and as it now stands, if the person aggrieved therefrom forgives it, and one way of forgiving the wrong doer is not appearing in support of the case against the wrongdoer, there will be no Qisas."
In view of above, the conviction recorded by the Court below is maintained with the modification that accused is acquitted under section 337-D, Cr.P.C. for causing injury to Akhtar Jan. The reference No.77 of 2015 is answered in affirmative and death sentence is confirmed.
JK/4/HC(AJ&K) Order accordingly.