SAIF ULLAH Versus State

RAJA SHAHID MEHMOOD ABBASI, J.--- Through the instant appeal Saif Ullah, appellant has called in question the judgment dated 21-12-2013 handed down by learned Additional Sessions Judge, Fatehjang wherein the appellant was convicted under section 302(b), P.P.C. for causing death of Muhammad Imran, deceased and was sentenced to undergo imprisonment for life. He was also ordered to pay compensation of Rs.1,00,000/- (one lac) to the heirs of deceased under section 544-A of the Code of Criminal Procedure, 1898; or in default thereof to further undergo imprisonment for six months. The benefit of section 382-B, Cr.P.C. was extended in favour of the appellant. The appellant has challenged his conviction and sentence before this Court through instant appeal.

Prosecution case is founded upon statement (Ex.PK) of Muhammad Safdar, complainant (PW.12) recorded by Asif Abbas, SI (PW.10) at 8.15 p.m. at THQ, Hospital Jand on 08-10-2005 alleged wherein that on the fateful day, complainant along with his brother namely Muhammad Imran (deceased) was going to see his Khala namely Momina wife of Yaqoob Khan and when at about 5.00 pm, they reached in the street near her house. All of sudden Asif Khan and Saif Ullah armed with .44 bore rifles emerged at the scene and after raising Lalkara started firing with their .44 bore rifles upon Muhammad Imran, deceased, which hit landed on both feet, chest and left shoulder. The complainant ran back and saved his life. On hue and cry of Muhammad Imran, deceased, Muhammad Aqeel his brother and people from the locality attracted the place of occurrence and witnessed the murder of the deceased. Thereafter, the accused Saif Ullah and Asif, after committing the murder of deceased fled away from the place of occurrence by brandishing their weapons. The deceased Muhammad Imran succumbed to the injuries on the way to the hospital.

The motive for the occurrence is that father of deceased contracted marriage with Mst. Naseem Jan widow, the mother of Saif Ullah, accused and for this grudge the appellant/accused assaulted the deceased.

2. Asif Abbas, Inspector, Investigation Circle Jand (PW.10) prepared inquest report Ex.PL, handed over the dead body to constable Ghulam Sadiq (PW.7) for post mortem, recorded the supplementary statement of Safdar, complainant wherein he mentioned that correct kind of weapon as .30 bore pistol instead of .44 rifle. During spot inspection secured blood from the spot vide memo Ex.PG, collected two empties of .30 bore pistol, vide recovery memo Ex.PF besides taking other investigation steps are formal in nature.

Second investigation was conducted by Allah Bakhsh, SI (PW.11), arrested Saif Ullah, appellant/accused on 11-06-2012 and recovered pistol .30 bore (P.4) on the pointation of the accused along with three live rounds (P.5/1-3) taken into possession vide memo Ex.PJ. After completion of investigation got prepared challan on 21-06-2012 and sent to the court.

Doctor Muzzafar Iqbal (PW.1) conducted autopsy at 7.30 a.m. and noted multiple lacerated firearm wounds on various parts of body that included front and back of chest, left shoulder, front and back of right elbow joint, left ear pinna, scalp, left buttock, back of right thigh, right foot, left foot and medial malelolus of left foot. Seventeen injuries in total inclusive of exits. Death was opined as a result of haemorrhage shock, leading to heart damage. Injuries Nos.1, 3 and 9 were declared as fatal. Death immediately followed the injuries and time between death and post mortem was reckoned between 13 to 16 hours.

3. The prosecution gave up the remaining PWs being unnecessary and after tendering in evidence the reports of FSL, Chemical Examiner Ex.PQ, Serologist Ex.PQ/1 and Chemical Examiner Ex.PR and copy of FIR Mark-I, closed its evidence.

4. The statement of the appellant under section 342, Cr.P.C. was recorded. He refuted the allegations leveled against him and professed his innocence and stated that he has falsely been involved in this case. While answering to the question, "why this case against you and why the PWs have deposed against you", the appellant/accused replied as under:-

"In fact the father of complainant Timer Khan abducted my mother. At that time I was minor. A Jirga was held in which Timer Khan had promised to return my mother and a fine of Rs.1,10,000/- was imposed on him but later on he refused. As I was pursuing that matter, so the complainant and his family involved me in this case so that I remained in jail and could not be able to return my mother. PW.12 Safdar is real brother of Imran while remaining PWs are police officials and they deposed against me only to strengthen the prosecution case."

The appellant opted not to appear as his own witness under section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations neither levelled against him by the prosecution nor opted to produce defence evidence.

5. Upon conclusion of trial, the learned trial Judge vide impugned judgment dated 21-12-2013 convicted and sentenced the appellant as referred to above.

6. Learned counsel for the appellant contends that the appellant has been falsely implicated in this case; that according to the prosecution many people witnessed the occurrence but only Safdar (PW.12) has been produced in evidence, who being real brother of the deceased, is an interested besides inimical witness; that there exist pitched enmity between the parties; that in the FIR the appellant was shown to have been armed with .44-bore rifle but recovery of 30-bore pistol has been effected from the appellant and that too has been effected after about seven years of the occurrence, which is not admissible; that the appellant cannot be convicted on the sole statement of Muhammad Safdar, (PW.12); that the story of FIR and attribution narrated by PWs were directly in conflict with medical evidence; that dishonest improvements were made by the PWs which were duly confronted; that the recovery of pistol is planted upon the appellant; the motive is also not proved because no independent evidence has been brought on the record by the prosecution to prove motive. The prosecution has miserably failed to prove its case against the appellant and it is gold principle of criminal jurisprudence that benefit of doubt, if any, has to be given to the appellant not as a matter of grace but as a matter of right. Only one circumstance creating doubt is enough to break the chain of prosecution tied around the neck of appellant and same is sufficient to acquit the appellant of the charge but in this case the sole witness is not trustworthy confidence, result of dishonest improvements, thus, the conviction is not justified at all.

7. Conversely, learned Deputy District Public Prosecutor opposes this appeal on the grounds that the appellant is nominated in the FIR with specific role of causing injuries on the person of Muhammad Imran (deceased); that it is the prerogative of the prosecution to produce as many witnesses as it thinks fit and it is the quality and not the quantity of evidence which weighs with the courts; that the statement of Muhammad Aqeel was recorded during the trial of co-accused and due to his murder he could not be cross-examined but the evidence can be read, in this case also; that the prosecution case is fully corroborated by the medical evidence; that prosecution case is also corroborated by evidence of recovery of pistol, report of Forensic Science Laboratory and the motive; that the prosecution has proved its case against the appellant beyond any shadow of reasonable doubt; that this appeal may be dismissed.

8. I have heard learned counsel for the appellant and the learned Deputy District Public Prosecutor and gone through record with their able assistance. I have noticed that the occurrence of this case took place at 5.00 p.m. The matter was reported to police at 8.15 p.m. while the distance between the place of occurrence and police station is 13 kilometers. The occurrence took place in village Toriwali and the preference was to shift the deceased to the hospital to save his life. Considering the place of occurrence, time of occurrence, status of the parties and enmity between the parties, we are of the view that matter was reported without due deliberation or conscious delay even otherwise in such a short time it is not possible to twist the actual fact or to invent a new story other than the real happening.

9. To substantiate its case through the direct evidence, the prosecution produced only Muhammad Safdar, complainant (PW.12) to furnish the ocular account. Though, examination-in -chief of Aqeel, PW was recorded in the court of learned Sessions Judge, Attock on 16-05-2008 when the present accused was proclaimed offender and as he was murdered, therefore, he could not be cross-examined. The examination-in-chief of the witness was not made part of record in accordance with law. In the circumstances, the question before me is whether conviction on a capital charge can be maintained on solitary statement of Muhammad Safdar, complainant (PW.12). Here, I am guided by the dictum laid down by the Hon'ble Supreme Court of Pakistan in case reported as Muhammad Mansha v. The State (2001 SCMR 199) wherein, at page 204, it was enunciated as under:-

"6. ...The question as formulated hereinabove as to whether conviction could have been awarded on the basis of solitary statement of a witness has been examined at first instance in the light of Article 17 of the Qanun-e- Shahadat Order, 1984, (section 134 of the Evidence Act, 1872). The said Article is reproduced herein below for ready reference:--

"17. Competence and number of witnesses.---(1) The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.

(2) Unless otherwise provided in any law relating to the Enforcement of Hudood or any other special law-

(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and

(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant."

7. A bare perusal would reveal that the language as employed in the said Article 17(1)(b) is free from any ambiguity and no scholarly interpretation is required. The provisions as reproduced hereinabove of the said Article would make it abundant clear that particular number of witnesses shall not be required for the proof of any fact meaning thereby that a fact can be proved only by a single witness "it is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality witnesses, case where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. The Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact". (Principles and Digest of the Law of Evidence by M. Monir, page 1458)."

I am further fortified by another judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Niaz-ud-Din and another v. The State and another (2011 SCMR 725) wherein, the Hon'ble Supreme Court was pleased to observe as under:-

"11. ...There is apt observations appearing in Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) that "even in a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable." The reason being that it is the quality of evidence and not the quantity which matter... "

So, having guidance from the above esteemed judgment, I am of the view that it is quality of evidence that weighs with the court not quantity and perusal of the statement of solitary eye-witness reveals that Muhammad Safdar, complainant (PW.12) was real brother of deceased Muhammad Imran and his presence with his real brother is neither unnatural nor unusual. The complainant has furnished a straightforward ocular account of the unfortunate incident and during the cross-examination the defence could not derive anything beneficial to the appellant as he remained firm, confident and stuck to his stance taken by him in his statement recorded under section 154 of the Code of Criminal Procedure, 1898 without any noticeable deviations. Keeping in view the unfortunate murder of Aqeel, PW, I am of the view that his non-appearance in the court is not sufficient to discredit the testimony of complainant Muhammad Safdar (PW.12). In this view of matter, I am of the view that the statement of Muhammad Safdar (PW.12) is worthy of credence, confidence inspiring, credible. I have also observed that there exist heart burning enmity between the parties and Aqeel, PW, who is eye-witness of the occurrence was murdered in year 2007 and the present appellant/accused Saif Ullah was nominated accused along with others. It is also noted that occurrence took place in the year 2005 whereby the appellant/accused was arrested in this case in the year 2012. Such a long absconsion would certainly go a long way to corroborate and strengthen the truth of prosecution version and indicate the guilt of accused. The stance of appellant that he was a taxi driver and used to ply the same at Rawalpindi is neither plausible nor appealable to the prudent mind. Moreover, such a bald defence, if any, has no vital effect on the case of prosecution because the appellant has not opted to any witness in his defence during the trial to prove this stance.

10. The prosecution case against the appellant also finds corroboration from the medical evidence as the ante-mortem injuries, on the person of deceased Muhammad Imran attributed to the appellant/ accused by the eye-witnesses are reflected in the post mortem report of deceased Muhammad Imran, which became the cause of his unnatural death as opined by medical officer Doctor Muzaffar Iqbal, (PW.1).

11. During the investigation of this case, the appellant led the recovery of pistol, which had been taken into possession, vide recovery memo Ex.PJ. Zulfiqar Ali, ASI (PW.9) appeared before the learned trial court as witness of recovery and he had categorically stated all the recovery proceedings in an expressed manner. Although, he was subjected to cross-examination by the defence yet nothing adverse to the prosecution could be extracted from his cross-examination. Thus, the recovery also provides sufficient support to the ocular account.

12. As regard the motive behind the occurrence is concerned, it was the case of the prosecution that father of deceased had married with Mst. Nasim Jan, widow, the mother of Saif Ullah and due to this grudge he committed murder of deceased and enmity between the parties due the aforementioned grudge is also admitted by the appellant/accused himself in his statement under section 342, Cr.P.C. I have carefully perused the evidence available in this case and have come to the conclusion that the prosecution has successfully proved motive against the appellant.

13. After considering all the pros and cons of the case, I am of the opinion that the prosecution remained successful to prove its case against Saif Ullah (appellant) beyond any shadow of reasonable doubt through consistent and coherent ocular account of the occurrence against the appellant furnished by the eye-witness Muhammad Safdar (PW.12), which is strongly corroborated by medical evidence, recovery and the evidence of motive. I have come to an irresistible conclusion that trial court has rightly convicted him but as regards of quantum of sentence I have noted following extenuating circumstances in his favour. Firstly, the birth certificate of the appellant Saif Ullah, Ex.DB reflects that he was below the age of 18 years at the time of occurrence. Secondly, it is not clear from the prosecution case that from whom fire injury, Imran deceased succumbed to the injuries. All these facts are taken as mitigating circumstances in favour of the appellant, thus, due to this fact the learned trial court was well justified for not awarding capital sentence to the appellant. I, too has no option to differ with the conclusion arrived at by the learned trial court. I would like to place reliance in this regard upon the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188). In another judgment reported as Ansar Ahmad Khan Barki v. The State and another (1993 SCMR 1660), the Hon'ble Supreme Court of Pakistan has held that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring home the charge against accused for award of normal penalty of death. I have also fortified my view qua the quantum of sentence by the case reported as Ghulam Mohy-ud-Din alias Haji Babo and another v. The State (2014 SCMR 1034) wherein in para No.21 of the judgment, the Hon'ble Supreme Court of Pakistan has observed as under:-

"21 ....A single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment. No clear guideline, in this regard can be laid down because facts and circumstances of one case differ from the other, however, it becomes the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case. If the Judge/Judges entertain some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So, it is better to respect the human life, as far as possible, rather to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed."

14. In view of all above, I am of the considered view that the learned trial court has rightly convicted and sentenced the appellant under section 302(b), P.P.C. and awarded him life imprisonment. I do not find any good reason to differ with the judgment passed by the learned trial court which is based upon proper appreciation of evidence available on the record and is in accordance with the principles of appreciation of evidence set down by the Hon'ble Supreme Court of Pakistan in this regard. I, therefore, uphold the conviction and sentence passed against the appellant, resultantly, this criminal appeal filed by the appellant is dismissed.

JK/S-50/L Appeal dismissed.