Israr-ud-Din Versus State
Salah-ud-Din, J .--- Through this judgment, we intend to decide instant Criminal Appeal bearing No. 306-M/2023 titled "Israr-ud-Din v. State and another" as well as connected Criminal Appeal bearing No. 323-M/2023 for acquittal titled "Mst. Zakia Bib and another v. State and others", as both these connected matters are byproduct of one and the same impugned order/judgment dated 30.9.2023 passed by learned Additional Sessions Judge, Samarbagh, District Dir Lower, rendered in case FIR No. 133 dated 08.8.2019, registered under sections 302,324, 34 P.P.C, read with section 15-AA at P.S Samarbagh, District Dir Lower. Through above-referred impugned judgment, appellant was convicted and sentenced as under: -
17. Conclusion: _
Consequent upon the preceding discourse, the evidence of prosecution especially the testimony of complainant and the eye-witnesses reasonably connects the accused Israr ud Din with the murder of deceased Muhammad Kamal. The evidence of prosecution remained confidence inspiring, trustworthy and free from any glaring contradiction. The corpus of documentary evidence was established without a shred of negation during trial. It is established on record that prosecution has successfully proved its case, beyond any shadow of doubt by establishing the presence of the accused Israr ud Din at the spot at the relevant time, proved that accused facing trial namely Israr ud Din fired at deceased Muhammad Kamal and caused his death, however, in absence of any pre planned intention, the accused facing trial Israr ud Din is found guilty of offence - and he is hereby convicted under section 302(b) P.P.C and nis sentenced to suffer imprisonment for life as Ta'zir. He is also sentenced to pay fine of Rs: 5,00,000/-(five lac). The amount of fine realized, shall be paid to the legal heirs of the deceased, as compensation under section 544-A Cr.P.C. In case of default of payment of fine, the convict shall undergo simple imprisonment for a term of six (06) months. The amount of fine shall be recoverable as arrears of land revenue from the person and estate of the convict. The accused is also convicted under section 15 AA for the recovery of pistol and sentenced to rigorous imprisonment of three years and fine of Rs. 50,000/- and in case of default to further undergo simple imprisonment of six months. The accused is in custody and he is committed to prison together with this warrant to serve the period of imprisonment. Benefit of section 382-B Cr.P.C. is extended to the accused in both convictions.
Since the charge has not been proved against accused Abdul Wahab and Adnan ud Din, therefore, they are acquitted in the present case. They are on bail and their sureties are absolved from the liability of bail bonds.
2. Learned counsel for parties as well as learned A. A.G for State were heard in considerable detail, in support of their respective stances/claims and requisitioned record gone through with their valuable assistance.
3. Matter-in-issue came into being when local police during routing patrolling of the area being present in Samarbagh Bazar heard fire shot coming from the Court premises of A.C. Samarbagh, therefore, they rushed to the spot, whereby they spotted Muhammad Kamal, in injured condition. On the spot, complainant namely Muhammad Sattar reported the matter to local police in terms that a few days ago his niece Mst. Sunbal was given divorce by her husband namely Israr-ud-Din (appellant herein) and she was sent by A.C Timergara to Dar-ul-Aman Swat. On the day of occurrence, Mst. Sunbal has been brought to the Court of A.C. Timergara and she was there. In the meanwhile, her ex-husband Israr-ud-Din, his brothers Abdul Wahab and Adnan-ud-Din came there and started quarrel with the complainant-party and started beating them with kicks and fists blows. At that juncture, appellant Israr-ud-Din took-out his pistol and started firing upon his brother namely Muhammad Kamal, as a result of which, he severely got injured. In addition to complainant, subject occurrence was witnessed by Imdad Khan and Amjad as well as other people present on the spot. Motive qua commission of offence was disclosed to be a dispute over women-folk . All the three accused were arrested on the spot and from personal possession of present appellant, the police recovered weapon of offence i.e. a .30-bore pistol bearing No. 6550, along with charger having two live rounds. In view of report of complainant Murasilai (Ex. PA/1) was drafted which culminated into ibid FIR (Ex. PA) registered against present appellant and other co-accused under sections 324, 34 P.P.C, read with section 15-AA at P.S concerned. Injured Muhammad Kamal at first instance was shifted to Samarbagh hospital, whereby he was provided first-aid, however, he succumbed to his injuries on the way to Timergara hospital, therefore, section 302 P.P.C was added to the already chalked-out FIR.
4. In criminal cases, "crime scene" is always considered to be of paramount importance in terms of its location and availability of eye-witnesses, if any, or as to whether it is a public place or an abandoned vicinity. In context of the case in hand, as evident from contents of Murasila followed by ibid FIR, the venue of crime is "Court premises of A. C. Samarbagh". It is also part of record that a few days prior to subject occurrence niece of the complainant-party namely Mst. Sunbal was given divorced by her husband i.e. Isar-ud-Din, appellant herein, and thereafter she was sent to Dar-ul-Aman Swat. On the fateful day, she was brought from Dar-ul-Aman Swat to the Court premises of A.C. Timergara, when in the meanwhile, the unfortunate incident of murder of deceased had occurred. Presence of both the parties on the spot is an admitted fact on both ends. All the three accused including present appellant namely Israr-ud-Din were arrested red-handed at the venue of crime and above all from personal possession of present appellant, police also recovered the weapon of offence i.e. a .30-bore pistol bearing No. 6550 along with charger having two live rounds. Likewise, during the course of investigation, the Investigating Officer recovered bloodstained earth from the floor of Court premises of A.C. Samarbagh by dint of recovery memo, Ex. PW-7/1, along with a crime empty of 30- bore vide recovery memo, Ex. PW-7/2, therefore, it can be said with certainty without any hesitation or jiggle of mind that prosecution has been able to prove the venue of crime, whereby the deceased Muhammad Kamal was done to death in presence of numerous people, in the background of family dispute.
5. Ocular-account in the instant case has been furnished by PW-2 namely Amjad Ali, PW-3 namely Imdad Khan and PW-4 namely Muhammad Sattar, complainant of the case in hand as well as the other police officials, who as first responders attracted to the spot and arrested the appellant along with weapon of offence. The last two police officials have been examined in Court as PW8 and PW-10, respectively.
6. PW-2 namely Amjad Ali deposed in his examination-in-chief that Mst. Sunbal was the daughter of his uncle namely Muhammad Zaman, who was married to premises of A.C. Timergara in connection with aforesaid family dispute. In the meanwhile, at 13:30 hours, present appellant and other co-accused came there and started present appellant Israr-ud-Din and a few days prior to present occurrence she was given divorce by her husband and was sent to Dar- ul-Aman Swat. On the day of occurrence i.e. on 08.8.2019 he was present in the Court premises of A.C. Timergara in connection with aforesaid family dispute. In the meanwhile, at 13:30 hours, present appellant and other co-accused came there and started altercation with them and they started beating the complainant-party. At the same time, it was present appellant Israr-ud-Din who took out his pistol and started firing upon his uncle Muhammad Kamal, as a result of which, he got hit, fell down on the ground and sustained severe injury. This PW also advanced specific motive, which was stated to be a dispute over womenfolk. During the course of his cross-examination, PW-2 has specifically and singularly charged present appellant qua his effective role of firing upon the then injured now deceased Muhammad Kamal. No doubt, this PW was cross-examined at a substantial length, however, probative worth of his testimony qua presence of the complainant-party, in particular, appellant could not be shattered, in any manner. Same is the case with testimony of another eye-witness of the occurrence namely Imdad Khan, who was examined in Court as PW-3. He also advanced almost same facts as narrated by PW-2 in his examination-in-chief. In his cross-examination, PW-3 also saddled present appellant for making firing upon the deceased, Muhammad Kamal. Complainant of the case in hand namely Muhammad Sattar was examined in Court as PW-4. In his testimony before the Court, he has also nominated present appellant for committing the murder of deceased then injured Muhammad Kamal, through firearm i.e. pistol. All the aforesaid three PWs were cross-examined by learned counsel for defence, however, nothing beneficial could be attracted from their mouths in favour of the present appellant, disputing his very presence on the spot i.e. Court premises of A.C, Samarbagh. Likewise, Abdul Sattar Khan, SHO, was examined in Court as PW-8, who deposed in his examination-in-chief that upon hearing fire shots he attracted to the venue of crime i.e. Court premises of A.C. Samarbagh and spotted the appellant Israr-ud-Din in the company of other co-accused. Appellant was armed with pistol bearing No. 6550. On the spot, Muhammad Kamal was also lying, in injured condition. It was specifically deposed by this official PW in his testimony that upon his arrival to the spot as a first responder, he arrested the appellant red-handed along with weapon of offence i.e. a .30-bore pistol bearing No. 6550. He also prepared injury sheet of the deceased then injured in the form of Ex. PW-8/1. Likewise, constable namely Rehmat Ullah was examined in Court as PW10. He has also affirmed the fact qua arrest of appellant red-handed, along with weapon of offence on the spot and presence of complainant-party at the venue of crime, along with injured now deceased Muhammad Kamal. Both these official witnesses were cross-examined at great length, however, they remained firm and consistent about arrest of appellant on the spot along with weapon of offence i.e. pistol as well as presence of deceased then injured. Subject occurrence has taken place in broad daylight and both the parties being co-villagers were well familiar with each other, hence, there was no apprehension of mistaken identity or substitution of accused by complainant or other eye-witnesses. Neither any dishonest improvements appear in their statements nor the story advanced by them appears to be unnatural or concocted-one, as such, their testimonies have remained un-impeached or un-shattered despite taxing and searching cross-examination by learned defence counsel. Hon'ble Supreme Court of Pakistan in its judgment rendered in case titled "Aurangzeb v. The State" reported as 2020 SCMR 612 , while relying upon eye-witness account of occurrence has observed: -
"Prosecution case is primarily hinged upon ocular account furnished by Haqnawaz (PW-1) and Munir Hussain (PW-2); former is father of the deceased whereas the latter is former's collateral; their close relationship notwithstanding, both of them have plausibly explained purpose of their presence at the crime scene; they had assembled to watch a Kabaddi match, annually held by tradition at a nearby mausoleum. To the extent of role assigned to the petitioner in the crime report, they remained consistent and straightforward; their failure qua the co-accused and complainant's recourse to a supplementary statement in order to nominate unknown assailants, though an embarrassing failure for the prosecution, however, does not tremor its mainstay. Assembly of the accused in the stated numbers, in a festivity, is a possible scenario; they appear to have been let off by the learned trial Court out of abundant caution, an option found by us most expedient in circumstances; their departure does not cast away the case against the petitioner, singularly blamed for the crime."
Similar observations have also been recorded by Hon'ble apex Court in case titled " Muhammad Waris v. The State" reported as "2008 SCMR 784", in the following words;
"The explanation offered by the said two eye-witnesses regarding their presence at the place of occurrence at the relevant time had been accepted by the two learned Courts and no reason exists which could persuade us to hold otherwise. Both these P.Ws. were thus, natural and independent witnesses of the occurrence who had been rightly delivered by the two learned Courts. Corroboration is only rule of caution and not a rule of law and if the eye-witness account is found reliable and trustworthy then there is hardly any need to look for any corroboration."
7. The matter not ended here, the appellant Israr-ud-Din opted to produce evidence in his own defence within the meaning of section 340 (2) Cr.P.C. In this regard, appellant recorded his statement as DW-1 and testimony of Mst. Sunbal was recorded as DW-2. It is evident from record that in the case in hand, appellant was arrested on the spot date of occurrence on 08.8.2019. Thereafter, his statement was recorded under section 161 Cr.P.C, however, at that particular juncture of time, appellant did not disclose this material fact that it was PW-2 namely Amjad Ali who had committed the murder of deceased Muhammad Kamal. Neither learned Justice of Peace nor high-ups of the police department have ever been approached qua his alleged defence plea and above all at the time of framing of charge, appellant has also not agitated this defence plea. It was after alarming delay of 03 years and 11 months , when for the first time appellant had come up with his defence plea to the effect that the deceased has died due to firing of his own colleague i.e. PW-2 namely Amjad Ali. In his testimony before the Court as DW-1, Israr-udDin, has though admitted his presence on the spot, however, as per his version, it was PW-2 namely Amjad Ali who had in-fact committed murder of the deceased Muhammad Kamal, however, such plea has neither been raised during the course of long trial nor he had brought this fact into the notice of Investigating Officer. No explanation whatsoever has been offered by appellant that why and for what purpose he kept mum for long 03 years and 11 months. Even in his cross-examination, DW-1 admitted his very presence on the spot and his subsequent arrest by the police party in the Court of premises of A.C Samarbagh. At the same breath, he also admitted that he has not lodged any report to police about the alleged murder being committed by PW-2 namely Amjad Ali. DWI also come up with another improvement in terms that on the day of occurrence four/five fire-shots have been fired, however, during the course of investigation, I.O. could only spot one crime empty. He also admitted that on the day of occurrence, he has not met Mst. Sunbal. There was also another admission on his part that during investigation of the instant case, in particular, at the time of pointation of place of occurrence, he has not mentioned this fact to the SHO concerned that it was Amjad who could be saddled for committing the murder of deceased Muhammad Kamal. Likewise, Mst. Sunbal was examined as DW2. In her statement, she though saddled PW-2 namely Amjad Ali for murder of deceased Muhammad Kamal, however, she has not uttered a single word about the event of scuffle, as alleged by DW-1 in his defence testimony. In her cross-examination, she has also made an admission in terms that she moved an application to S.P., attributing the role of firing to her brother i.e. PW-3 namely Imad Khan. Needless to highlight, alleged application submitted by DW-2, Mst. Sunbal, before S.P. bears the date of 30th June, 2020, whereas the alleged occurrence of murder of deceased has taken place on 08.8.2019, therefore, this delayed filing of subject application totally negates the defence plea of present appellant, qua his alleged assertion that the death of deceased has caused due to firing of their own colleagues i.e. PW-2 or PW-3. No doubt, accused can take multiple pleas, but mere defence plea is not sufficient to discard the overwhelming prosecution evidence. Although, weaknesses of defence cannot be used against an accused person, and it is always the prosecution who will discharge its duty of proving the accused against an accused. Whenever a specific defence plea is taken by an accused, then the Court must be very vigilant and conscious to render any verdict upon the same, or to consider or discard it. In such circumstances, learned trial Court has rightly discarded the alleged defence plea of appellant being illegal, irrational and contrary to the material available on record.
8. No doubt, there were certain minor contradictions in statements of PW-2, PW-3 and PW-4 in respect of production of Mst. Sunbal from Dar-ul-Aman Swat to the Court premises of A.C Samarbagh and the exact place of pronouncement of Talaq, however, it is equally important to note that these eye-witnesses have been examined in Court after 03 years and four months of the tragic incident and occurring of such minor contradictions as mentioned earlier were quite natural. When witnesses were examined after 03 years and four months of the occurrence a photographic narration of the occurrence cannot be expected from them. Hon'ble Supreme Court of Pakistan in its judgment rendered in case titled "Khadim Hussain v. State" reported as PLD 2010 SC 669 has held that creeping of minor contradictions in testimony of PWs, with passage of time, have been natural and same could be ignored. Relevant part of observation of august Court is reproduced hereunder for ready reference: -
"We have also adverted to the contention of learned ASC that various contradictions in the statements of the prosecution witnesses have not been taken into consideration causing serious prejudice against the appellant. It has been held time and again by this Court that minor contradictions do creep in with the passage of time and can be ignored safely."
Similarly, in case titled "Muhammad Ilyas v. The State" reported as 2011 SCMR 460 , Hon'ble Supreme Court has followed the aforesaid rational of law by observing as under: -
"Contradictions which are not grave in nature can be ignored safely as minor contradictions creep in with passage of time. Merely on the basis of contradictions, statement of a prosecution witness cannot be discarded if corroborated by other incriminating material."
Further reliance in this respect may also be placed on judgment of Hon'ble apex Court rendered in case titled "Zulfiqar Ahmad v. The State" reported as 2011 SCMR 492.
9. Learned counsel for appellant has also an objection to ocular-account of furnished by eye-witnesses on the ground of their close relationship with the deceased. There is no denial of the fact that complainant and other alleged eye-witness closely related to the deceased. However, mere relationship between witnesses and deceased would not be sufficient to damage their evidence altogether. It is a well-recognized principle of criminal administration of justice that relationship by itself is no ground to discard and discredit testimony of eye-witnesses unless they are shown to be partisan and interested witnesses. Rel: "Abdur Rauf v. The State and another" (2003 SCMR 522). It is an intrinsic value of a statement of a prosecution witness which is to be taken into account and not his/her relationship. It is not a rule of thumb that an interested or related witness will always tell lie and independent witness truth rather testimony of a witness in each case is required to be adjudged in light of its own facts and circumstances. If it is established on record that a witness had a motive to implicate an accused person falsely in a case, then in such situation independent corroboration may be sought from other evidence. In the present case, there is nothing on record to suggest any previous blood feud or other bitterness of serious nature between the parties, except previous motive over women-folk, hence, eye-witnesses had no motive for false implication of present appellant. Reliance is placed on the judgment of apex Court rendered in case titled "Amal Sherin and another v. The State" reported as PLD 2004 SC 371 , whereby it was held that "mere relationship of the witness with the deceased would not detractl from their veracity, who had absolutely no motive of their own to involve the accused." Similarly, same rational was reiterated by apex Court in case titled "Khalid v. The State" reported as 2024 SCMR 1474 by observing that in absence of any ulterior motive/animus for false implication of an accused, the confidence inspiring testimony of an eye-witness, whose presence with the deceased at the time and place of occurrence is established, cannot be discarded merely due to his relationship with the deceased.
Further reliance, in this regard, may be placed on the dicta expounded by apex Court in case titled "Zakir Khan and others v. The State" reported as 1995 SCMR 1793 , in case titled "Salah-ud-Din and another v. The State" reported as 2018 PCr.LJ 1297 and case titled "Muhammad Umar v. The State" reported as 2022 PCr.LJ 695.
In light of ratio-decidendi expounded in the aforesaid judgments of various Courts, the ocular-account furnished by PW-2, PW-3 and PW-4, respectively cannot be discarded on the sole ground of their close relationship with the deceased, when otherwise they appear to be truthful witnesses.
10. Medical evidence of the deceased i.e. injury sheet, Ex. PW-8/1 and OPD Chit, Ex. PW-12/1 have been made part and parcel of the case file. Prosecution examined Dr. Izat Khan as PW-12. He was the doctor who had provided first-aid to the deceased then injured in Samarbagh hospital, however, the injured succumbed to his injuries on the way to DHQ hospital Timergara and died, therefore, the medical evidence of deceased was in complete conformity with the ocular-account furnished by PWs, hence, the same has rightly been made basis for conviction of present appellant.
11. Circumstantial evidence in the form of blood-stained earth and a crime empty from the spot as well as blood-stained garments of the deceased, providing getting added vigor and strength to the case of prosecution. There was also a positive FSL report in field, whereby it was opined "that the 30-bore crime empty marked as "C" was fired from 30 bore pistol No. 6550 in question", recovered from personal possession of the appellant at the time of his arrest on the spot i.e. Court premises of A.C. Samarbagh. Hence, circumstantial evidence has rightly been believed by learned trial Court qua prima facie guilt of appellant.
12. Prosecution has proved its case against appellant beyond shadow of doubt through trustworthy and confidence inspiring direct evidence as well as corroboratory and circumstantial evidence, which has properly been appreciated by learned trial Court, hence, conviction of appellant for murder of deceased Muhammad Kamal, is not open to any exception.
13. In view of what has been discussed above, instant Criminal Appeal bearing No. 306-M of 2023 and Cr.R. No. 74- M of 2023, having no force, same are accordingly dismissed and as a natural corollary impugned conviction and sentences of appellant recorded by learned trial Court through impugned judgment dated 30.9.2023 is upheld and maintained.
14. As far as connected criminal appeal against acquittal bearing No. 323-M of 2023 is concerned, since no untoward act has been attributed to co-accused namely Abdul Wahab and Adnan-ud-Din except their involvement in a scuffle with the complainant-party coupled with the fact that the effective role of firing upon deceased has been attributed to the principal co-accused Israr-ud-Din, therefore, they have rightly been acquitted by learned trial Court, on the strength of impugned judgment by extending them benefit of the doubt, hence, the impugned judgment to the extent of their acquittal needs no interference. Connect Criminal Appeal bearing No. 323-M/2023 is also dismissed.
JK/23/P Appeals dismissed.