MUHAMMAD HUSSAIN alias KAKA Versus State

ABDUL SAMI KHAN, J.--- Muhammad Hussain alias Kaka appellant along with Talib Hussain and Abdul Majeed was tried in case FIR No.76/2000 dated 08.03.2000 for the offences under sections 302, 452, 324, 337F(iv), 109, P.P.C., registered at Police Station Noshera Virkan, District Gujranwala by the learned Judge Special Court (STA-1975), Gujranwala who vide judgment dated 30.06.2001, while acquitting Talib Hussain and Abdul Majeed co-accused, convicted and sentenced Muhammad Hussain alias Kaka appellant as under:-

Under section 302(b), P.P.C. to death on three counts along with compensation of Rs.100,000/- as envisaged under section 544-A, Cr.P.C. to the legal heirs of each deceased, in default whereof to further undergo six months SI for each default.

Under section 452, P.P.C. to undergo 07-years R.I. with fine of Rs.10,000/-, in default whereof to further undergo six months S.I.

Under section 324, P.P.C. to undergo 10-years R.I. with fine of Rs.20,000/-, in default whereof to further undergo six months S.I.

Under section 337F(iv), P.P.C. to undergo 05-years R.I. with direction to pay Rs.10,000/- as "Daman" to Muhammad Ashraf injured.

The benefit of section 382-B, Cr.P.C. shall be extended in favour of the appellant.

2. Muhammad Hussain alias Kaka appellant has challenged his conviction and sentences through Criminal Appeal No.1121 of 2001 titled as "Muhammad Hussain alias Kaka v. The State" , whereas the learned trial Court has sent a Reference under section 374, Cr.P.C. for confirmation or otherwise of the death sentence of appellant, which has been numbered as Capital Sentence Reference No.67-T of 2001. The complainant has also filed Criminal Revision No.546 of 2001 for enhancement of the amount of compensation imposed on the appellant by the learned trial Court under section 544-A, Cr.P.C. Since, the all the above matters have arisen out of one and the same judgment dated 30.06.2001, therefore, we propose to decide the same together through this single judgment.

3. The occurrence in this case was reported to the police by Umar Din complainant through his statement under section 154, Cr.P.C. which was incorporated in FIR (Ex.PG) by Baqir Hussain Inspector (PW-15). In his statement, Umar Din complainant (PW-9) narrated that he was a farmer, his elder brother namely Ibrahim was unmarried and used to reside with him. About 15/16 days prior to 08.03.2000, Talib Hussain and Abdul Majeed (acquitted co-accused) came to his house and demanded the hand of Mst. Salma Bibi, his daughter for Muhammad Hussain alias Kaka appellant i.e. real brother of Talib Hussain. He refused their demand, of which both the accused felt ill and they asked him that he had not done well by refusing to give the hand of his daughter and this would be injurious to him. At that time, Abdullah son of Wali was also present in the house of the complainant. After 2/3 days, the complainant was passing through the fields of Abdul Rehman, Ex-MPA, where Abdul Majeed scolded him and reprimanded him from passing through the fields with the contention that he had refused to give the hand of his daughter. On 08.03.2000 at about 03:30 p.m. the complainant along with his real brother Ibrahim, his son in law Abdul Sattar son of Abdullah and other family members was sitting in the courtyard of his house, when Muhammad Hussain alias Kaka accused armed with rifle came on the roof of kitchen (Jhalani) constructed in the courtyard from the roof of house of Nazar Faqir and started abusing them. The complainant and other family members beseeched him, but he did not repent and said that he would teach them (complainant and his family members) lesson for not giving the hand of Mst. Salma Bibi, on which Ibrahim and Mst. Salma Bibi stepped forward. The accused fired at them, as a result of which both Ibrahim and Mst. Salma Bibi received injuries and fell down. Asghar, maternal nephew of the complainant, who used to live in the courtyard of the house of complainant, climbed up the kitchen. Muhammad Hussain alias Kaka accused fired at him and he also fell down and succumbed to the injuries at the spot. On hearing the noise, Ashraf son of the complainant attracted to the spot, the accused Muhammad Hussain alias Kaka also caused injuries to him and while firing the accused went towards his villages Mst. Salma Bibi and Asghar died at the spot. Ibrahim and Ashraf were taken to civil hospital, but due to non-availability of the doctor, they were shifted to Sarwar Hospital, where Ibrahim succumbed to the injuries in the courtyard of the hospital prior to receiving any medical treatment and Ashraf injured was admitted in the hospital for medical treatment. Umar Din complainant has maintained in his statement under section 154, Cr.P.C. (Ex.PG) that Muhammad Hussain alias Kaka accused had murdered Mst. Salma Bibi, Ibrahim and Asghar and injured Ashraf on the abetment and instigation of his brother Talib Hussain and Abdul Majeed to take revenge of refusing to give the hand of Mst. Salma Bibi.

4. After registration of FIR, the investigation of the case was conducted by Baqir Hussain Inspector (PW-15). After completion of the investigation, the report under section 173, Cr.P.C. was submitted in the learned trial Court. At the commencement of trial, after observing legal formalities, learned trial Court framed charge against the appellant on 06.11.2000, to which he pleaded not guilty and claimed trial.

5. To prove its case, the prosecution produced as many as fifteen witnesses during the trial before the learned trial Court. Ocular account was furnished by Umar Din complainant (PW-9), Abdul Sattar eye-witness (PW-10) and Muhammad Ashraf injured (PW-11). They supported the prosecution version. Baqir Hussain Inspector (PW-15) testified about the investigation conducted by him. Medical evidence was furnished by Lady Dr. Nasreen Akhtar (PW-12), Dr. Zafar Abbas (PW-13) and Dr. Ghulam Mustafa (PW-14). Lady Dr. Nasreen Akhtar (PW-12) conducted postmortem examination on the dead body of Mst. Salma Bibi deceased, Dr. Zafar Abbas (PW-13) conducted postmortem examination on the dead bodies of Ibrahim and Asghar deceased and Dr. Ghulam Mustafa (PW-14) medically examined Muhammad Hussain alias Kaka appellant as well as Muhammad Ashraf injured (PW-11). Rest of the prosecution witnesses are more or less formal in nature. After placing on record the report of Chemical Examiner (Ex.PAA), report of Forensic Science Laboratory (Ex.PBB) and the report of Serologist (Ex.PCC), the prosecution closed its evidence.

6. After completion of the prosecution evidence, the statement under section 342, Cr.P.C. of the appellant was recorded by the learned trial Court. He professed innocence and pleaded false implication in the case. He did not opt to get record his statement under section 340(2), Cr.P.C. however, produced documents Ex.DA to Ex.DD in his defence.

7. On completion of the trial, after hearing the arguments advanced by learned counsel for the parties and evaluating the evidence brought on the surface of record by the prosecution as well as the defence in support of their respective versions, the learned trial court found the prosecution's case against the appellant to have been proved beyond any reasonable doubt, convicted and sentenced him as mentioned and detailed above, however , through the same judgment, Talib Hussain and Abdul Majeed (accused of abetment) were acquitted of the charge by the learned trial Court.

8. Learned counsel for the appellant, in support of this appeal, contends that a totally false case has been registered against the appellant with ulterior motives and mala fide intentions. The judgment rendered by the learned trial Court is the result of surmises and conjectures and that is against the law and facts of the case. Learned counsel further contends that co-accused of the appellant namely Talib Hussain and Abdul Majeed were acquitted by the learned trial court and the judgment of acquittal to their extent has attained finality, thus , the evidence which has been disbelieved to the extent of acquitted co-accused cannot be believed to the extent of the appellant unless and until there is strong corroboration which is very much lacking in this case. The PWs are interested witnesses, they are also inimical towards the appellant. Further submits that the appellant also received injuries during the alleged occurrence, but this fact has been suppressed by the complainant and other alleged eye-witnesses, which makes their depositions unreliable. As a matter of fact, the deceased Ibrahim, while armed with rifle/Kalashnikov grappled with the appellant and during grappling the Kalashnikov went off and Mst. Salma Bibi, Asghar, Ibrahim, Muhammad Ashraf along with appellant sustained injuries. There are material contradictions in the statements of PWs and they made dishonest improvements in their statements in order to make the prosecution case in line with medical evidence. The evidence led by the prosecution with reference to motive is neither convincing nor has been corroborated by any independent evidence as such, the same cannot be relied upon. The story of prosecution was tainted with mala fide and the evidence produced by the prosecution suffers from material irregularities. The recovery has been planted upon the appellant in order to strengthen the prosecution case, even otherwise, there is glaring violation of section 103, Cr.P.C. and such recovery has got no value in the eyes of law. Lastly, learned counsel for the appellant contends that the prosecution has miserably failed to prove its case beyond any shadow of doubt and the evidence so produced is not confidence-inspiring and is not worthy of credence, therefore, the appellant deserve clean acquittal.

9. On the other hand, learned Deputy Prosecutor-General contends that the matter was reported to the police with sufficient promptitude and there is no element of consultations and deliberations. The appellant is named in the promptly lodged FIR with specific role of firing at the deceased persons namely Ibrahim, Asghar and Mst. Salma Bibi as well as Muhammad Ashraf injured is attributed to him therein. The role attributed to the appellant is borne out from the post-mortem examination reports of the deceased persons and Medico-legal Certificate of Muhammad Ashraf injured PW. The parties were known to each other prior to the occurrence, so false implication of the appellant in this case by the complainant or his substitution in lieu of real culprit is rare phenomena. Relation inter se is no ground to disbelieve the confidence inspiring evidence of the prosecution witnesses. Further contends that the presence of the complainant, eye-witnesses and the appellant at the spot at the time of occurrence is admitted. All the prosecution witnesses are consistent on each and every material point. There are some minor contradictions which cropped up with the passage of time and are not fatal to the prosecution's case. The medical evidence is in line with the ocular account and apart from confidence inspiring ocular account, there is strong corroborative piece of evidence in the shape of recovery of weapon of offence at the pointing out of the appellant and the positive report of Forensic Science Laboratory (Ex.PBB), which clearly connect the appellant with the commission of crime. The prosecution has successfully proved its case against the appellant and the learned trial court has rightly convicted and sentenced him, hence, prays that the conviction and sentences of the appellant be maintained to meet the ends of justice.

10. The learned counsel for the complainant has sent a written request for adjournment, but considering the fact that the matters in hand relate to year 2001 and more than thirteen years have already elapsed. Moreover, the learned Deputy Prosecutor General has already advanced the case of the complainant before this Court, therefore, further adjournment is unjustified and the request for adjournment on behalf of the complainant is accordingly declined. The arguments advanced by learned counsel for the appellant as well as learned Deputy Prosecutor General have been heard, record has been carefully examined with their able assistance.

11. The occurrence in this case took place on 08.03.2000 at 03:30 p.m. in the area of "Dera Faqiran Da" included in Tarkhananwala, within the territorial jurisdiction of Police Station Noshera Virkan, District Gujranwala, whereas the matter was reported by Umar Din complainant (PW-9) to Baqir Hussain Inspector/the then SHO (PW-15), who recorded FIR (Ex.PG) on the basis of statement made by the complainant before him on the same day at 04:30 p.m. The distance between the place of occurrence and police station is about seven kilometers. It has been maintained by Umar Din complainant (PW-9) in the FIR (Ex.PG) that after the occurrence, he took Ibrahim and Muhammad Ashraf injured (PW-11) to civil hospital as saving the life of the injured is always considered a prime consideration, but due to non-availability of the doctor, both the injured were shifted to Sarwar Hospital, where Ibrahim succumbed to the injuries in the courtyard of the hospital before his medical treatment. Thereafter, leaving Muhammad Ashraf injured (PW-11) in the hospital, Umar Din complainant (PW-9) came to the Police Station to inform the police about the incident. Considering the time of incident, the place of occurrence, its distance from the police station and the fact that the complainant shifted Ibrahim deceased and Muhammad Ashraf injured (PW-11) to the hospital before apprising the police about this unfortunate incident, we are of the view that there was no delay in reporting the matter to the police and it is a case of promptly lodged FIR, which rules out any chance of consultation or deliberation to falsely implicate the appellant in this case.

12. Some other imperative features of the case in hand are that the appellant is named in the FIR, which was lodged without consuming any considerable time and a specific role of causing firearm injuries at the persons of Mst. Salma Bibi, Ibrahim, Asghar and Muhammad Ashraf (PW-11) has been attributed to him therein. There is no denial of the fact that Mst. Salma Bibi, Ibrahim and Asghar lost their lives as a result of injuries sustained by them during the occurrence. Like-wise, the presence of Umar Din complainant (PW-9), Abdul Sattar eye-witness (PW-10) and Muhammad Hussain alias Kaka appellant at the place of occurrence at the time of occurrence is also an admitted fact, however, the version taken by the appellant is that at the time of occurrence, Ibrahim deceased while armed with the weapon of offence grappled with him and during grappling, the weapon of offence went off and as a result thereof, he along with Muhammad Ashraf injured (PW-11) and deceased persons Mst. Salma Bibi, Asghar and Ibrahim himself sustained injuries. The outcome of the above is that the date, time and place of occurrence as well as the presence of complainant, eye-witnesses and the appellant at the spot are the facts admitted by the defence and the difference arises only on the mode and manner of happening of the occurrence. Clearly the case in hand is of two versions i.e. one put forth by the prosecution in the shape of FIR and the depositions of prosecution witnesses and the other put forth by the appellant through questions put to the witnesses of the occurrence during cross-examination on them and in his statement under section 342, Cr.P.C. It is the golden principle of law that the prosecution is obliged to prove its case beyond the shadow of any doubt and the accused may take thousand versions in his defence, taking guidance from the above principle; firstly , we would like to evaluate the prosecution version in the light of material available on record. The prosecution has tried to prove its case against the appellant through the statements of witnesses namely Umar Din complainant (PW-9), Abdul Sattar eye-witness (PW-10) and Muhammad Ashraf injured (PW-11), medical evidence furnished by lady Dr. Nasreen Akhtar (PW-12), Dr. Zafar Abbas (PW-13) and Dr. Ghulam Mustafa (PW-14), recovery of weapon of offence i.e. Kalashnikov (P-11) from the appellant and lastly the evidence of motive. It has been observed by us that while appearing before the learned trial Court as PW-9, Umar Din complainant has reiterated the same facts and leveled the same allegations against the appellant in a mode and manner as he had mentioned in his statement Ex.PG before the police. The remaining PWs i.e. Abdul Sattar eye-witness (PW-10) and Muhammad Ashraf injured (PW-11) also supported the stance taken by Umar Din complainant in the FIR (Ex.PG) as well as in his statement recorded before the learned trial Court as PW-9. All three eye-witnesses have made consistent statements regarding involvement of the appellant in the present case. They have made consistent statements regarding presence of the appellant and the manner in which he brutally murdered three innocent persons and caused injuries to Muhammad Ashraf (PW-11). In spite of the fact that they had been subjected to lengthy cross-examination, the defence failed to shatter their credibility qua the involvement of appellant in this case. Although some contradictions in the statements of the eye-witnesses during cross-examination were found, but those contradictions do not cause any damage to the prosecution case as the eye-witnesses have made consistent statements regarding involvement of the appellant and role played by him in this case, hence, we do not find any reason to discard the testimony of the eye-witnesses. They have corroborated each other on all material aspects of the case and their evidence is not only straightforward, but the same also inspired our confidence. Even otherwise, law does not permit us to choose few sentences from the evidence and base our decision in favour of defence while reading only those sentences in isolation to the remaining evidence available on the record. So far as the contention of learned counsel for the appellant that Umar Din complainant (PW-9), Abdul Sattar eye-witness (PW-10) and Muhammad Ashraf injured (PW-11) are related inter se as well as to the deceased persons and as such they are interested witnesses, is concerned, there is no hard and fast rule that statements of witnesses related inter se or to the deceased cannot be taken into consideration without corroboration and it is settled law that even uncorroborated version can be relied upon if supported by the surrounding circumstances. In this regard reference can be made to the case of Muhammad Mansha v. The State (2001 SCMR 199).

13. Apart from the above, Muhammad Hussain alias Kaka appellant, in his statement under section 342, Cr.P.C. has claimed that he was at visiting terms with the complainant, his relationship with the complainant party especially the wife of the complainant was quite cordial and the complainant and his wife were fully agreed to give him the hand of their daughter Mst. Salma Bibi deceased. But contrary to the fact, he has not brought on record any substance to prove that the complainant and the eye-witnesses have involved him in this case in order to fulfill their previous grudge, enmity or malice. We have, therefore, not found anything in the testimony of witnesses of the ocular account so as to disbelieve their deposition against the appellant.

14. Coming to the version taken by the defence in this case, by drawing the sketch of the whole occurrence in our minds, we are not ready to believe the version of the appellant as admittedly the occurrence took place in the house of Umar Din complainant (PW-9) and four persons from the complainant side sustained injuries, out of whom, Mst. Salma Bibi deceased received eight firearm injuries i.e. four entry and four exit injury wounds on her chest, left lower arm and left knee, Ibrahim deceased received firearm injury on his head, Asghar deceased received firearm injury on anterior aspect of his right chest, which made its exit from upper and outer quadrant of left buttock, while Muhammad Ashraf injured (PW-11) received two injuries. Although Muhammad Hussain alias Kaka appellant also received two injuries i.e. one entry and one exit wound, yet he was stable enough even at the time of his medical examination conducted by Dr. Ghulam Mustafa (PW-14) after at least half an hour of the occurrence. It is also apparent from the statement of Dr. Ghulam Mustafa (PW-14) that burning was available around the entry wound observed by him on the person of Muhammad Hussain alias Kaka appellant. On the other hand, Umar Din complainant (PW-9), Abdul Sattar eye-witness (PW-10) and Muhammad Ashraf injured (PW-11) have consistently stated before the learned trial Court that after the occurrence, the appellant went towards his village while making firing. These facts clearly show that after murdering Mst. Salma Bibi, her uncle Ibrahim deceased and cousin Asghar deceased and injuring her brother Muhammad Ashraf (PW-11), the appellant left the place of occurrence and thereafter caused injury on his own body in order to create defence in his favour or to end his own life so as to avoid the consequences of his fierce activities. In spite of injuries on his person, the appellant did not move any application to the police to record his counter version and even he did not file private complaint in support of his version and this fact shows that the defence plea taken by the appellant in this case was an afterthought story, which has no nexus with reality.

15. The medical evidence of the prosecution was furnished by Lady Dr. Nasreen Akhtar (PW-12), Dr. Zafar Abbas (PW-13) and Dr. Ghulam Mustafa (PW-14). We have observed that the medical evidence has fully supported the ocular account furnished by the prosecution in the shape of statements of PW-9 Umar Din complainant, PW-10 Abdul Sattar eye-witness and PW-11 Muhammad Ashraf injured. According to the FIR, the deceased persons and Muhammad Ashraf injured (PW-11) received number of firearm injuries on their bodies at the hand of the appellant, thus , after taking into consideration the whole prosecution evidence, we have come to the conclusion that ocular account of the prosecution is in line with the medical evidence furnished by Lady Dr. Nasreen Akhtar (PW-12), Dr. Zafar Abbas (PW-13) and Dr. Ghulam Mustafa (PW-14). The ocular evidence of the prosecution about the kind of weapon used during the occurrence and the time of incident as narrated by the eye-witnesses of the occurrence has fully tallied with the medical evidence.

16. As far as the recovery of Kalashnikov (P-11) from the appellant is concerned, Baqir Hussain Inspector (PW-15) during spot inspection on the day of occurrence took into possession four empties of Kalashnikov vide memo Ex.PY, which were later on found fired from Kalashnikov (P11) recovered at the pointing out of the appellant during investigation of the case. In this regard, the positive report of the Forensic Science Laboratory (Ex.PBBB) has further strengthened the case of the prosecution and the same clearly connects the appellant with the commission of instant occurrence.

17. Adverting to the evidence of motive, which as per FIR (Ex.PG) was that co-accused Talib Hussain and Abdul Majeed (both acquitted) came to the house of Umar Din complainant (PW-9) and demanded the hand of Mst. Salma Bibi deceased for Muhammad Hussain alias Kaka appellant, but the complainant refused their demand and for that reason, the appellant committed this untoward incident. We have observed that the complainant Umar Din (PW-9), eye-witness Abdul Sattar (PW-10) and injured Muhammad Ashraf (PW-11) have consistently spoken about the motive and their deposition is further strengthened by the statement of Abdullah (PW-5), in whose presence Talib Hussain and Abdul Majeed (acquitted co-accused) demanded the hand of Mst. Salma Bibi deceased for the appellant from her father/complainant. Moreso, the motive put forth by Umar Din complainant in the FIR (Ex.PG) as well as in his statement before the learned trial Court as PW-9 is also established from the questions put by the defence during cross-examination on Abdullah (PW-5), Umar Din complainant (PW-9), Abdul Sattar eye-witness (PW-10) and Muhammad Ashraf injured (PW-11). If this is not enough, Muhammad Hussain alias Kaka appellant in his statement under section 342, Cr.P.C. categorically stated that Umar Din complainant (PW-9) and his wife promised to give the hand of Mst. Salma Bibi deceased to him, but Abdullah (PW-5) and Abdul Sattar eye-witness (PW-10) forbade them from giving the hand of their daughter to the appellant. Thus, the prosecution has successfully proved the motive part of its case, which later on became the reason for brutal murders of Mst. Salma Bibi, Ibrahim and Asghar deceased persons coupled with the attempt to commit murder of Muhammad Ashraf injured (PW-11) by Muhammad Hussain alias Kaka appellant.

18. After having considered this case from all angles, we are of the definite view that the prosecution has fully proved its case against the appellant beyond the shadow of doubt for the murders of Mst. Salma Bibi, Ibrahim and Asghar and for causing injuries to Muhammad Ashraf (PW-11). We are unable to find out any mitigating circumstance in favour of the appellant as he has acted in extremely brutal, desperate and reckless manner at the time of occurrence. He has done to death three innocent persons and has seriously injured Muhammad Ashraf (PW-11) only due to the grudge that Umar Din complainant (PW-9) refused to give the hand of Mst. Salma Bibi deceased to him; therefore, the appellant does not deserve any leniency in respect of his sentences. In the circumstances, we are of the considered view that the learned trial Court had rightly convicted the appellant and there is no extenuating circumstance available in his favour for extending him any benefit regarding his sentences, hence, his conviction and sentences awarded by the learned trial Court i.e. under section 302(b), P.P.C. to death on three counts along with compensation of Rs.100,000/- as envisaged under section 544-A, Cr.P.C. to the legal heirs of each deceased, in default thereof to further undergo six months S.I. for each default, under section 452, P.P.C. to undergo 07-years R.I. with fine of Rs.10,000/-, in default thereof to further undergo six months S.I. under section 324, P.P.C. to undergo 10-years R.I. with fine of Rs.20,000/-, in default thereof to further undergo six months SI under section 337F(iv), P.P.C. to undergo 05-years R.I. with direction to pay Rs.10,000/- as "Daman" to Muhammad Ashraf injured are maintained. The sentences of imprisonment awarded to the appellant under sections 452, 324 and 337F(iv), P.P.C. shall run concurrently and the benefit of section 382-B, Cr.P.C. is also extended in his favour.

19. In view of the above discussion, no case for enhancement of the amount of compensation is made out against Muhammad Hussain alias Kaka appellant/respondent No.1 in Criminal Revision No.546 of 2001 filed by Umar Din complainant, hence, the same is accordingly dismissed.

20. For the reasons discussed in preceding paragraphs, Criminal Appeal No. 1121 of 2001 stands dismissed. The Capital Sentence Reference is answered in affirmative and the sentence of death on three counts is confirmed.

HBT/M-62/L Appeal and revision dismissed.