SHER MUHAMMAD Versus State
ABDUL SAMI KHAN, J.--- Through this appeal under section 410, Cr.P.C. read with section 25 of Anti-Terrorism Act, 1997 Sher Muhammad and Amanat Ali appellants have called in question the judgment dated 21.12.2009 handed down by the learned Judge, Anti-Terrorism Court No. II, Lahore through which the appellants were convicted for offences under sections 334/336-B, P.P.C. read with section 149, P.P.C. for cutting ears and chopping off the nose of Mst. Fazeelat Bibi and they were ordered by the learned trial court to be caused similar hurts on the same parts of body as they have caused under Qisas but if the Qisas is not applicable then they were sentenced to undergo rigorous imprisonment for ten years each as Ta'zir. They were also ordered to pay Arsh as required under section 337-Q, P.P.C. equal to the amount of Diyat, i.e. Rs. 700,000/- each to be paid to victim Mst. Fazeelat Bibi and in case of failure in payment of Arsh the appellants were ordered to be kept in jail and dealt with in same manner as provided under section 337-X(2), P.P.C. until amount of Arsh is paid to the victim. Both the appellants were also convicted under section 324, P.P.C. read with section 149, P.P.C. and they were sentenced to undergo rigorous imprisonment for 10 years each along with fine of Rs.100,000/- each or in default of payment of fine to further undergo two years each. Both the appellants were further convicted under section 7(c) of Anti-Terrorism Act, 1997 and they were sentenced to undergo life imprisonment each along with fine of Rs. 200,000/- each or in default of payment of fine to further undergo five years each. The appellants were also convicted for an offence under section 148, P.P.C. and they were sentenced to undergo imprisonment for two years each. It was ordered that the sentences in lieu of default in payment of fine shall run in addition to other sentences. Benefit of section 382-B, Cr.P.C. was also not extended in favour of the appellants. The appellants have filed the instant appeal against their convictions and sentences.
2. The prosecution story unfastened from the FIR is that the complainant is residence of Zafarke District Kasur and he along with his family worked at brick kiln of Haji Gulfraz Ahmad. On the fateful day at about 6.30 a.m. his daughter Mst. Fazeelat Bibi after making bricks was going to home for making breakfast but she was intercepted near charri crop of one Muhammad Umar by accused persons namely Sher Muhammad, armed with churri and Amanat Ali, armed with pistol and three unknown persons who stopped her and tried to strangulate her by putting and tighten plastic wire around her neck. Mst. Fazeelat resisted whereupon the accused/Sher Muhammad appellant cut ears and chopped off her nose with churri. After hearing hue and cry of Mst. Fazeelat the complainant and his son Sabir attracted to the spot upon which the accused person fled away from scene of crime. The three unknown persons could not be recognized at the spot because at the time of fleeing away they have only seen back of three unknown persons. The motive set up in the FIR is that accused persons were demanding hands of Mst. Fazeelat Bibi for Sher Muhammad and on refusal they extended threats of dire consequence. On application of the complainant formal FIR No.75/09, dated 25.11.2009 was registered at Police Station Sadar Raiwind, Kasur in respect of offences under sections 324/334/336/ 148/149, P.P.C. read with section 7 of Anti-Terrorism Act, 1997.
3. To substantiate its version before the learned trial court, the prosecution produced as many as ten prosecution witnesses before the learned trial court. The ocular account was furnished by Bashir Ahmad, complainant (PW6) and Mst. Fazeelat Bibi victim (PW7). Bashir Ahmad, complainant (PW6) and Mst. Fazeelat Bibi victim (PW7) also stated about the motive whereas Sajid Hussain (PW5) also stated about recovery. Hakim Ali, Inspector (PW8) is the investigating officer of the instant case who has stated about various steps taken by him during the investigation of this case. The medical evidence has been furnished by Dr. Musarrat Khurshid (PW3), Women Medical Officer, General Hospital, Lahore, who had medically examined Mst. Fazeelat Bibi victim (PW7) on 28.09.2009. Rest of the evidence adduced by the prosecution witnesses if more or less formal in nature.
4. The appellants in their statements recorded under section 342, Cr.P.C. professed their innocence and pleaded false implication in this case. They have not opted to appear under section 340(2), Cr.P.C. in their defence to disproof of allegations leveled against them by the prosecution. However, they have examined two defence witnesses, i.e. Muhammad Iqbal (DW 1) and Salamat Ali (DW2).
5. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellants as mentioned in paragraph No.1 of this judgment.
6. Learned counsel for the appellants contends that the prosecution has miserably failed to prove the case against the appellants beyond any shadow of reasonable doubt, hence the appellants are liable to acquitted of the charge. On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant submits that the prosecution has proved the guilt of the appellants to the hilt.
7. We have heard the learned counsel for the parties at length, have given our anxious consideration to their, arguments and have also scanned the record with their able assistance.
8. The occurrence in this case has taken place on 28.09.2009 at 6.30 a.m. and the same was reported to the police through an application moved by the complainant (Ex. PM) upon which FIR has been registered at Police Station Sadar Raiwind, Kasur on the same day at 7.30 a.m., i.e. within a short span of one hour. Thus, we are quite confident in observing that there left no room for the complainant to get assistance from any legal expert so as to consult or deliberate upon the matter before registration of FIR or making application to the police.
9. To prove the story set forth in the FIR the prosecution keeps in its folder two eye-witnesses, i.e. Bashir Ahmad, complainant (PW6) and Mst. Fazeelat Bibi injured victim (PW7). It was a broad daylight occurrence which was witness by Bashir Ahmad, complainant (PW7) and Mst. Fazeelat Bibi, injured victim (PW7) who narrated all the story before the learned trial court in her statement which is as under:-
"It was 28th of September 2009 at about 6.30 a.m. (morning) we were returning after finishing our work at the brick kiln of Haji Gul Graz and were proceeding to our house. When I along with my father and brother Sabir were coming, I was ahead of them and when I reached near Charri crop of one Umar Kamboh, five accused persons emerged from the Charri crop who were accused Sher Muhammad son of Ahmad armed with Churri, Amanat son of Ahmad Din armed with pistol, (both accused person in court) and Muhammad Ali alias mammi armed with wire, Asif armed with pistol and Ali son of Ghulam Rasool armed with pistol, all encircled me and it was accused Amanat and Ali who caught hold me from my arms and then Amanat Ali accused put the plastic wire around my neck and Amanat and Asif pulled the wire. Thereafter, Sher Muhammad accused cut my both ears lobes and nose with the Churri.
The motive behind the occurrence that Sher Muhammad accused was demanding my hand from my father. My father refused because of the accused persons were of bad character and on this refusal, accused Sher Muhammad had threatened that he would disfigure and finish me. Hue and cry raised by me and alarm of my father and brother, accused persons succeeded to flee away from the place of occurrence and I became unconscious at the spot. Thereafter, I was taken to hospital where I was examined medically by the doctors. During this period I was informed that my mother had died due to the dreadful act of the accused persons. I remained admitted in the hospital till 10.10.2009, when I was discharged. On 13.10.2009 I.O. reached my house and I produced my blood stained clothes i.e. Shalwar P.6, Shirt P.7 and Chaddar P.8 which were taken into possession vide memo Ex. PN attested by father."
The evidence adduced by victim duly found corroboration from the statement of Bashir Ahmad, complainant (PW6). The story mentioned in the FIR is quite natural because at 6.00 pm in the month of July sufficiently sunlight exists and according to the trend of villagers the womenfolk usually used to return back to home after completing their daily pursuit in brick-kiln. So the time of occurrence also provides support to the story narrated by the complainant in the FIR. While adducing evidence before the learned trial court the eye-witnesses have duly proved reasons for their presence at the spot at relevant time in so many words. Both of them had unambiguously stated that the appellants who had caught hold Mst. Fazeelat Bibi, injured victim (PW7) and Amanat Ali appellant tried to strangulate her by wire and Sher Muhammad appellant cut her both ears and chopped off her nose with churri which fact creates a flagrant impression into the mind of this Court that the appellants after having made preparation to teach lesson to the victim (PW7) for not accepting proposal of marriage of Sher Muhammad appellant has made murderous assault upon her and committed the offences. Both the eye-witnesses have correctly explained time, place of occurrence, the kind of weapon used by the culprits in perpetrating the offence, the reason of their presence at the spot at relevant time and the manner as well as mode of taking place of the occurrence. They had remained consistent on each and every material point despite of having undergone a lengthy cross-examination by the defence. More over nothing has been extracted during cross-examination of the eye-witnesses which would suggest that they were not present at the scene of the crime at relevant time or the occurrence has not taken place as the manner stated by them before the learned. Their evidence has extended adequate confidence to the learned trial court to be believed upon them and we have also acknowledged the quality of their truthfulness.
10. Admittedly Bashir Ahmad, complainant (PW6) is father of Mst. Fazeelat Bibi injured victim (PW7) so it is not expected from such close kith and kin that he would spare the actual culprit to go scot-free by involving the appellants in this case. It is also admitted at all hands that parties to this case are residents of same locality, they are closely related to each, therefore, there is no chance of mistaken identity of the appellants at the spot in broad daylight. Likewise, the intensity of close relationship of the complainant and the injured victim itself demands and expects eradication of substitution of the real culprits in lieu of the appellants which otherwise is a rare phenomena in such like cases, therefore, the plea taken by the appellants that they have been falsely implicated in this case has no legs at all. Thus, by any stretch of imagination it can be said with the whole degree of certainty that the defence could not shatter or smash the credibility of the evidence adduced by the eye-witnesses before the learned trial court. It is significant to point out here that admittedly Mst. Fazeelat Bibi (PW7) is a star prosecution witness in this case who has received injuries on her person during the occurrence at the hands of the appellants. Thus, her evidence in such circumstances cannot be disbelieved because she had been resisting at the spot to save her skin from the clutches of culprits but unfortunately she has been victimized by the appellants during the occurrence which fact certainly put an undeniable stamp of her presence at the spot at relevant time. If this is not enough Hakim Ali, Inspector/investigating officer (PW8) was an independent witness who was investigating this case under the supervision of high rank police officer. He had no concern with the appellants or with the eye-witness as well as with the victim. He too had found the appellants to be involved in this occurrence who have perpetrated the offence and thereafter slipped away from the scene of crime. So the trustworthy evidence adduced by the three eye-witnesses, supported by PW8 had motivated our evaluation to put a credible reliance upon the same and believed it as unequivocal.
11. Although Bashir Ahmad, complainant (PW6) is closely related to the victim yet his presence at the spot at relevant time as mentioned above is natural because the occurrence has taken place near the brick-kiln where he used to work. The learned counsel for the appellants has vehemently argued that the eye-witness account has been furnished in this case by interested witnesses and no independent corroboration of the ocular account has been provided by any independent witness. We, however, remained unable to appreciate this submission of the learned counsel for the appellant because the law has now well settled on the point that the fact of relationship of the witnesses with the complainant or with the deceased would not be sufficient to smash the evidence adduced by such witnesses or to disbelieve their credibility as well as legal sanctity. Such PW can be believed if intrinsic worth of his testimony inspires confidence of the court and the same leads to an inference that the witness was present at the scene of the crime at relevant time and he has seen the occurrence. Reliance is placed on the case of Muhammad Ahmad and another v. The State and others (1997 SCMR 89). Even otherwise the rule requiring independent corroboration of testimony of interested witness is a rule of prudence which is not to be applied rigidly in each case especially when the courts of law do not feel necessity. There can be cases like the present one where implicit reliance can be placed on the testimony of related witness if it otherwise inspiring confidence of the Court. As stated above Mst. Fazeelat Bibi injured victim (PW7) and Bashir Ahmad, complainant (PW6) were residents of same locality where the occurrence had taken place so in absence of any solid or concrete reason their evidentiary value cannot be disbelieved by this Court at all.
12. The defence has taken particular stances at the time of recording statements of appellants under section 342, Cr.P.C. wherein they have categorically stated that due to their previous enmity with Gulfraz, owner of brick-kiln they have been falsely implicated in this case on his behest. Such stance taken by the defence has not been supported by any independent corroboration, thus, it is just a bald stance taken by the appellants at belated stage just to wriggle out from criminal prosecution. Although the defence has examined two witnesses namely Muhammad Iqbal (DW1) and Salamat Ali (DW2) who both appeared before the learned trial court and tried to establish that as a matter of fact the appellants were apprehended by the police from brick-kiln of Gulfraz. We, however, remained unable to appreciate their evidence in its true spirit for the reasons that both these witnesses have not joined the investigation and they have not got recorded their statements under section 161, Cr.P.C. Admittedly Salamat Ali (DW2) is real brother of co-convict Amanat Ali and Muhammad Iqbal (DW1) is their brother-in-law (Behnoi) so, their evidence in this case is termed as an after thought attempt to save the skin of the appellants under legal advice. Even Muhammad Iqbal (DW-1) has admitted in his cross-examination that he had come to court to adduce evidence on the asking of Asif Shah, co-convict of the appellants. Thus, the evidence adduced by DW1 and DW2 and the plea taken by the appellants in their statements under section 342, Cr.P.C. does not inspire our confidence to be believed upon which is hereby disbelieved by us. So far as vehement argument of the learned counsel for the appellant highlighting minor discrepancies or alleged improvement in the statements of eye-witnesses are concerned, suffice it to observe here that such like minor discrepancies can crop up with the passage of time, slip of tongue and the same are not material enough to be considered when otherwise all surrounding and attending circumstances of the case do not provide support to the same. Learned counsel for the appellants have also vociferously argued that in her press-conference Mst. Fazeelat Bibi, injured victim (PW7) has not named the appellants to be the culprits who have chopped off her nose and cut her ears or made murderous assault upon her which fact is sufficient to acquit the appellants of the charge. In this context we have observed that no independent witness has been examined by the defence to substantiate this particular fact. Even DW1 and DW2 have not uttered a single word in respect of this particular aspect of the matter. Law is quite settled that when the defence took a specific plea it is the duty of the defence to prove the same by cogent and trustworthy evidence which fact is missing in this case. During the course of arguments both the learned counsel for the appellants have also brought to the notice of this Court that at one stage the victim Mst. Fazeelat Bibi (PW7) and Bashir Ahmad, complainant (PW6) have effected compromise with the appellants and they have no objection if the appellants are acquitted of the charge. Today Mst. Fazeelat Bibi, injured victim (PW7) is present in person before this Court and she has categorically stated that she has not effected any compromise with the appellants and she wants decision of her case on merits. She had prayed that culprits be dealt with iron hands. In view of the discussion made above, we are of the confident view that the ocular account furnished by the eye-witnesses in this case inspires our confidence and the same is palpably proved beyond any reasonable shadow of doubt.
13. The medical evidence in this case had been furnished by lady Dr. Musarrat Khurshid, Women Medical Officer, General Hospital, Lahore and according to her the injuries sustained by Mst. Fazeelat Bibi, injured victim (PW7) were fresh at the time of her medical examination on 28.09.2009 at 8.10 a.m. and the same were caused by sharp weapon. In her cross-examination she has admitted that full lobules of the ears of the victim were cut. She has categorically described all the seven injuries sustained by victim on her person by the hands of the appellant. While appearing in the witness box as (PW3) she had unambiguously explained the physical condition of the victim, the weapon of offence used during the occurrence, the time between the occurrence and the medical examination. In spite of cross-examination upon the doctor the defence could not extract anything adverse to the prosecution's case which could refute the medical evidence in this case. Thus, we have come to a stalwart conclusion that the medical evidence in this case is absolutely in line with the ocular account and the same has provided full support to the same.
14. The appellants were arrested in this case on 29.09.2009 and during investigation of this case Sher Muhammad appellant has led to the recovery of churri (P-1) from his residential house which was blood stained and the same has been taken into possession by the investigating officer (PW8) vide recovery memo Ex.PK. On the same day Amanat Ali appellant No. 2 also led to the recovery of pistol (P-2) along with live bullets (P3/1-2), plastic wire (P-5) and white pieces of cloths (P-4) which have been taken into possession by the investigating officer vide recovery memo Ex. PL. In support of recovery proceedings Sajid Hussain (PW5) duly appeared in the witness-box before the learned trial court and he has deposed regarding all the proceedings of recovery conducted by the investigating officer. He has undergone a lengthy cross-examination by the defence but nothing detriment to the case of prosecution has been extracted from his mouth. Thus, the recovery effected in this case provide full corroboration to the ocular account.
15. The motive set up by the prosecution in the FIR is that Sher Muhammad appellant No. 1 wanted to marry Mst. Fazeelat Bibi, victim (PW7) and he demanded her hands from the complainant but he refused and refusal could not be absorbed by him and to give the taste of refusal to the complainant party he has designed this cruel act. To prove the motive part of the case Bashir Ahmad, complainant (PW6) himself appeared before the learned trial court and his statement found duly support from the statement of Mst. Fazeelat Bibi, victim (PW7). Although the defence has tried to introduce their previous enmity with Gulfraz, owner of brick-kiln where the complainant and his family were working for earning livelihood to establish their false implication on the asking of above said Gulfraz yet the fact remains that their belated defence in this regard is not supported by any independent corroboration. Even otherwise except the appellants and their co-convicts no person has been introduced by prosecution in this case who alleged to have committed the occurrence. In the backdrop of such a situation the motive set up by the prosecution has amply proved and provide sufficient support to the ocular account.
16. For what has been discussed above, an unavoidable and irresistible conclusion of the above discussion is that Sher Muhammad and Amanat Ali appellants are desperate persons who had launched murderous assault on innocent lady and had also chopped off her nose and cut her ears in a merciless manner. They have acted in a cruel and ruthless way and indulged into a hardhearted occurrence which ultimately spoiled life of an unmarried innocent lady for which a sense of fear and insecurity must have definitely prevailed in the locality. Normal penalty of offences under sections 334/336, P.P.C. in the statute is imprisonment for ten years each and the appellants do not deserve any leniency by this Court. The prosecution has proved its case against the appellant without any reasonable shadow of doubt.
17. Before parting with this judgment we may observe here that the learned trial court has passed convictions upon the appellant under Qisas Ordinance and sentenced them to cause similar hurt on the same part of body as they have inflicted on the person of Mst. Fazeelat Bibi, victim (PW7) but after minutely analyzing the evidence led by Bashir Ahmad, complainant (PW6) and Mst. Fazeelat Bibi, victim (PW7) from all pros and cons we have observed that the criteria adopted by the learned trial court to term the eye-witnesses to have fulfilled all requirements of Tazkiya-tul-Shahood is not acceptable to inflict conviction under Qisas to the appellants because the yardstick and parameters and procedure with regard to process of Tazkiya-ul-Shahood have not been adopted by the learned trial court in letter and spirit. For ready reference the procedure is mentioned as under:- a. There must be evidence of victim followed by at least two witnesses. b. In case of discrepancies on vital aspects between two witnesses both shall be rejected. c. Tazkiya-ul-Shahood is a condition precedent to impose the sentence of Hadd. d. There should be one or more "Muzakki" (a person who testifies about the truthfulness of the witnesses). e. The "Muzakki" should be present when the witness gives evidence. f. The "Muzakki" should also be questioned about antecedents, character and dealing. g. It is the responsibility of the court to satisfy itself about the credibility of a witness and it can for that matter select open or secret modes of inquiry or both. h. The court may frame a questionnaire on which the "Muzakki" should collect information to supply to the court. i. The court should also examine the "Muzakki" after he submit his report. j. The court should ask searching questions from the witness and cross-examine him, to discover fact which might show his credibility, piety or otherwise.
Law is quite settled on the point that except the victim there should be two other adult male Muslims available with the prosecution to adduce evidence of Tazkiya-ul-Shahood who should pass the above mentioned conditions to award conviction of an accused person under Qisas. Reliance can be placed on the case reported as 1993 PCr.LJ 2540. In this case except Mst. Fazeelat Bibi, victim (PW7) the prosecution has examined only one other witness who is her father namely Bashir Ahmad, complainant (PW5). So in this case two adult independent Muslim witnesses were not available rather the second eye-witness namely Sabir, brother of the victim has been given up by the prosecution being unnecessary. Another important condition has not been fulfilled by the learned trial court, i.e. appointment of Muzakki (purgatory) to satisfy requirements of Tazkiya-ul-Shahood or to verify truthfulness of eye-witness which was condition precedent to convict the appellants in this case because in the case of Amjad Pervez v. The State (2004 YLR 1592), it has been held as under:-
"Ss. 17(3) & 9(1) OAP(EH). Person who conducts inquiry as Muzakki by way of Tazkiya-ul-Shahood is loaded with a very heavy responsibility. It would be imperative for court to appoint only one such person for each witness who is highly credible, trustworthy and well aware of antecedents of witness appearing on behalf of prosecution. The inquiry made by Muzakki may not necessarily he open or confidential but should be fully sufficient to convince court about credibility or otherwise of the witnesses appearing before it."
If this is not enough the first portion of evidence adduced by both the eye-witnesses with regard to Tazkiya-ul-Shahood has not been put to the appellants in their statement under section 342, Cr.P.C. and in such an eventuality the same cannot be used against them. Thus, the sentence passed against the appellants is hereby set aside.
18. It is also significant to point out here that the learned trial court has inflicted imprisonment for ten years in the graver offence committed by the appellants, i.e. under sections 334/336, P.P.C. for chopping off the nose and cutting ears of victim whereas in supplemental offence, i.e. under section 7(e) of Anti-Terrorism Act, 1997 trial court has inflicted life imprisonment which is not in consonance with conviction passed against the graver offence, therefore, we reduced the sentence passed by the learned trial court under section 7(e) of Anti-Terrorism Act, 1997 from life imprisonment to undergo rigorous imprisonment for ten years each with fine of Rs. 200,000/- each or in default of payment of fine to further undergo imprisonment for five years each. The remaining sentences passed against the appellants, i.e. payment of Arsh, amounts of fine against each offence or in default of payment of fine are upheld and maintained. However, all the sentences passed against the appellants shall run concurrently and benefit of section 382-B, Cr.P.C. is extended in favour of the appellants.
19. With the modification made in the sentence of the appellants Criminal Appeal No. 1388 of 2011 is hereby dismissed.
JK/S-88/L Order accordingly.