Gul Rahman Versus State
Salah-ud-Din, J .--- Through this judgment, we intend to decide the instant Criminal Appeal bearing No. 239-M/2023 titled "Gul Rahman and another v. State and another" as well as connected Criminal Revision bearing No. 51-M/2023 for enhancement titled "Atta-ul-Haq v. State and others", as both these connected matters are by-product of one and same impugned order/judgment dated 20.6.2023 passed by learned Sessions Judge/Zila Qazi/Judge M.C.T.C District Shangla. Through above-referred impugned judgment, appellants were convicted and sentenced as under:-
Appellant namely Gul Muhammad:-
Under section 302 (b) P.P.C to imprisonment for life as Ta'zir, along with compensation of Rs. 300,000/- (three hundred thousand) under section 544-A Cr.P.C, payable to legal heirs of deceased. In default of payment of compensation, appellant shall further suffer six months, SI. Amount of compensation shall be recoverable as arrears of land revenue from person and estate of appellant.
Under section 337-A (i) P.P.C to payment of Daman of Rs. 20,000/- (twenty thousand), along with imprisonment of two years as Ta'zir.
Under section 337-A (ii) P.P.C to payment of Arsh, along with imprisonment of five years as Ta'zir.
Under section 337-A (iii) P.P.C to payment of Arsh, along with imprisonment of ten years as Ta'zir.
Under section 337-L (2) P.P.C to payment of Daman of Rs. 20,000/- (twenty thousand), along with imprisonment of two years as Ta'zir.
Appellant namely Haji Muhammad:-
Under section 337-A (i) P.P.C to payment of Daman of Rs. 20,000/- (twenty thousand), along with Imprisonment of two years as Ta'zir.
Under section 337-A (ii) P.P.C to payment of Arsh, along with imprisonment of five years as Ta'zir.
Under section 337-A (iii) P.P.C to payment of Arsh, along with imprisonment of ten years as Ta'zir.
Under section 337-L (2) P.P.C to payment of Daman of Rs. 20,000/- (twenty thousand), along with imprisonment of two years as Ta'zir.
All the aforesaid sentences of both the appellants were ordered to run concurrently, however, they have been extended benefit of section 382-B, Cr.P.C.
2. Appellants faced trial in a criminal case registered against them vide FIR No. 135 dated 31.3.2021, under sections 302, 337-A (i), 337-A (ii), 337-A (iii), 337-L (2), 34 P.P.C registered at P.S Karora, District Shangla. As per prosecution story, complainant namely Atta-ul-Haq reported the matter to local police at emergency ward of RHC hospital Karora in terms that on the fateful day his father namely Taj Muhammad (deceased) and brother namely Ahmad Sadiq (injured) have been excavating sand in their landed property for construction of mosque, whereas he (complainant) has been working as a laborer with his cousin Taju-ud-Din, in his house. At 11:00 hours, on hearing commotion, when complainant came out of the house of his cousin, he saw his father and brother have started quarrel with Gul Rahman and Haji Muhammad (the appellants herein). On reaching the spot of occurrence, complainant spotted his father and brother in injured condition and at the relevant time both of them were unconscious, whereas present appellants duly armed with sticks and pickaxe were standing beside them. On inquiry about the cause/reason of quarrel, both the appellants started beating the complainant with stick and pickaxe blows, as a result of which, he got injured on different parts of his body. Motive behind the occurrence was disclose to be mining of sand and a dispute over the landed property. It was also alleged by complainant that during scuffle, his cousins namely Fayaz and Muhammad Faraz came to the spot and eased-down both the parties. In view of report of complainant 'Murasila' (Ex. PA) was drafted which culminated into ibid FIR (Ex. PA/1) registered against present appellants at P.S concerned. Later on, one of the injured namely Muhammad Taj, (father of the complainant) succumbed to his injuries and died in the hospital, therefore, section 302 P.P.C was added to the already chalked-out FIR.
3. Upon arrest of present appellants followed by completion of investigation, challan was submitted before learned trial Court. Appellants were confronted with statement of allegations through a formal charge-sheet to which they pleaded not guilty and claimed trial.
4. To substantiate guilt or otherwise of nominated accused, prosecution furnished its account consists of the statements of fourteen (14) PWs/ witnesses. Appellants were confronted with the evidence so furnished through statements of accused within the meaning of section 342 Cr.P.C, whereby, they posed innocence, however, neither wished to be examined on Oath nor they desired to produce evidence in their own defence under section 340 (2), Cr.P.C.
5. On conclusion of proceedings in trial, appellants were convicted and sentenced vide impugned order/judgment dated 20.6.2023 of learned trial Court, as highlighted above in proceeding Para of this judgment. Appellants have now challenged the aforesaid order/ judgment of their conviction by preferring instant appeal before this Court. There was also a connected criminal revision for enhancement filed by petitioner/ complainant namely Atta-ul-Haq for consideration of this Court with a sole prayer that awarded conviction and sentence of appellants may please be modified and converted to that of full-dose i.e. death sentence, in view of gravity of offences instead of life imprisonment.
6. Learned counsel for the parties as well as learned A. A.G for State were heard at a substantial length, in support of their respective stances/claims and requisitioned record gone through with their valuable assistance.
7. In nutshell, allegations against present appellants are that they in furtherance of their common intention committed murder of deceased namely Muhammad Taj (father of the complainant) and caused injuries on the vital parts of bodies of two other injured i.e. Ahmad Sadiq and complainant of present case namely Atta-ul-Haq, through sticks and pickaxe blows. There was also a specific motive in field, which was stated to be excavation/mining of sand and a dispute over landed property. It is also part of record that both the parties being co-villagers were known to each other, therefore, prima facie there was no chance of mis-identification or false implication on part of complainant-party.
8. In order to prove their charge against present appellants, prosecution has relied upon ocular-account furnished by injured/complainant namely Atta-ul-Haq, Muhammad Faraz and another injured PW namely Ahmad Sadiq. All the aforesaid three eye-witnesses of the occurrence have been examined in Court as PW-10 to PW-12 respectively. There was also medical evidence of the deceased as well as both the injured PWs, who have stamp of injuries on different parts of their bodies and other circumstantial evidence.
9. On his own turn, injured/complainant namely Atta-ul-Haq appeared in Court as PW-10. In his examination-in-chief, he almost reiterated the same facts as advanced by him in his initial report in shape of 'Murasila' followed by ibid FIR, however, his cross-examination is worth perusal, whereby, in response to a query put-forward by defence counsel, he offered a very natural and straight-forward narration of the occurrence, in the following terms: -
"It is correct that when I (PW-10) reached to the place of occurrence, Ahmad Sadiq and Muhammad Taj were lying unconscious on the spot."
Likewise, the injured PW namely Ahmad Sadiq was examined in Court as PW-12. In his examination-in-chief, he had clarified the presence of another eye-witness of the occurrence namely Muhammad Faraz in terms that on the day of occurrence he (PW-12) along with his father were excavating sand in their landed property for construction of mosque, when in the meanwhile, PW Muhammad Faraz came there and started gossip/conversation with them. In his cross-examination, PW-12, qua his presence on the spot at the relevant time deposed as under: -
"It is correct that the place where we were excavating gravel is adjacent to the road. During scuffle, I (PW-12) became unconscious and fell on the ground."
Both these PWs were cross-examined at a substantial length, however, they remained consistent on most of the material particulars of the case. The trend of cross-examinations of the PWs/eye-witnesses would reveal that mode and manner of the occurrence, venue of crime i.e. landed property of complainant-party, presence of eye-witness on the spot and motive part of the case in terms of excavation of sand, have been specified and confirmed from mouths of these PWs. Same was the case with statement of another eye-witness of the occurrence namely Muhammad Faraz, who was cousin of complainant. He was examined in Court as PW-11. His presence on the spot could not be doubted and viewed with a suspicion because of deposition of injured PW Ahmad Sadiq, who had validated and affirmed presence of this PW on the spot of occurrence, even prior to happening of the instant occurrence. The 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 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 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."
10. No doubt, there were certain minor contradictions in statements of PW-10 and PW-12 in respect of in-between distance between the place of occurrence and house of cousin of complainant Taj-ud-Din, wherein the complainant was working as a laborer at the relevant time and specification of role of appellant namely Gul Rahman qua causing of fatal injuries to deceased i.e. father of complainant with hoe blows, however, it is equally important to note that these two eye-witnesses have been examined in Court after almost 15 months of the tragic incident and occurring of such minor contradictions as mentioned earlier were quite natural. When witnesses were examined after almost 15 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. The State" reported as PLD 2010 SC 669 has held that creeping in 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 had 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.
11. Needless to highlight that both the injured PWs i.e. complainant of present case namely Atta-ul-Haq and his brother namely Ahmad Sadiq have been having stamp of injuries of their bodies. Before rendering any findings in respect of this aspect of the case, it would be in the fitness of things, to make a reference to medical evidence of both these Injured PWs. Dr. Aqil Ahmad was examined in Court as PW-8. At first instance, he had spotted the following injuries on the body of injured/complainant namely Atta-ul-Haq:-
1. One lacerated wound at right partial area of head having the size 05 x 03 centimeters, muscle deep and bone not exposed.
2. One scratch wound at left buttock.
Similarly, the aforesaid medical officer had also examined the other injured namely Ahmad Sadiq, whereby it was opined by PW-8 that the injured had received injury on his head with blunt trauma. Bleeding from left ear vitally stable with no history of loss of consciousness. In view of these injuries on the persons of injured PWs, there was no justifiable reason for them to charge present appellants falsely or for that matter to substitute them with real culprits. Hon'ble Supreme Court in case titled "Muhammad Iqbal v. The State" (PLD 2001 SC 222) has held as under: -
"That in murder cases falling under section 302, P.P.C. substitution of an accused, who is actually involved in the commission of the crime, is a rare phenomenon in this country particularly in an incident in which single accused was involved by nominating him in the FIR from the very beginning."
Though, it is not a rule of thumb that an injured person will always tell nothing but a whole truth, however, testimony of an injured person cannot easily be discarded on the sole plea that he is interested in conviction of accused. Testimony of such witness is required to be adjudged with a judicious and independent mind in light of attending circumstances of each and every case. If found honest and confidence inspiring, then statement of an injured person can safely be considered against an accused person without any hesitation or jiggle of mind. Thus, presence of injured PWs on the spot of occurrence, in view of stamp of injuries on their persons is established, being natural, confidence inspiring and in conformity with their accounts, recorded as PW-10 and PW-12 respectively. Reliance is also placed on judgment of apex Court rendered in case titled "Rooh Ullah and another v. The State and others" reported as 2022 SCMR 888, whereby, in respect of the matter-in-issue, it was held as under:-
No doubt, injuries on the person of a witness are not a passport into the realm of truth, however, the learned counsel has not been able to point out even a single circumstance to suspect testimony of Azam Tariq PW. Incident, a daylight affair, was reported with a remarkable promptitude followed by examination of the injured as well as autopsy, circumstances that cumulatively exclude possibility of consultations or deliberations.
12. Learned counsel for appellants has also an objection to ocular-account of the 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 namely Ahmad Sadiq are real sons of the deceased Muhammad Taj. Likewise, injured PW Muhammad Faraz was close relative of complainant-party. 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 of land dispute, hence, the eye-witnesses had no motive for false implication of present appellants. 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 detract 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-10, PW-11 and PW-12, respectively cannot be discarded on the sole ground of their close relationship with the deceased, when otherwise they appear to be truthful witnesses and more particularly when two of them i.e. PW-10 and PW-12 have stamp of injuries on their bodies, as highlighted with a minute details, in preceeding Para of this judgment.
13. Learned counsel for appellants also stressed hard on the point that as per available record there was a cross version of the instant occurrence in the shape of Naqal Mad No. 10 dated 31.3.2021, which was lodged on the report of one of the appellant namely Haji Muhammad in the capacity of complainant, whereby he has charged the accused-party comprising of injured PW Ahmad Sadiq and his father Muhammad Taj now deceased for causing injuries on different parts of his body with pickaxe blows, however, learned trial Court in the impugned judgment did not take pain to discuss said aspect of the case qua existence or otherwise of a cross-version, therefore, as per his estimate and wisdom, the impugned judgment is nullity in the eyes of law. In order to bolster his arguments, learned counsel for appellants placed reliance on the judgment of this Court, rendered in case titled "Munawar Bacha v. Mst. Basraja Bibi and another" reported as 2016 PCr.LJ 1588, whereby in view of existence of a cross-version, death sentence of nominated accused was converted into life imprisonment. Adverting to objection of learned counsel qua existence of cross version, suffice it to say, it was the present appellants who had attracted to the venue of crime i.e. landed property of complainant-party, therefore, by all stretch of imaginations they could be termed as aggressors instead of other way around i.e. aggressed upon. Even the alleged cross version of complainant now appellant namely Haji Muhammad was adamant of the fact that it was he (Haji Muhammad) who had stopped the complainant-party from digging-out sand from the disputed property, therefore, this element also tilted in favour of complainant-party to be victims of the tragic incident. Apart from above, neither the appellant namely Haji Muhammad in his statement recorded under section 342 Cr.P.C agitated his alleged plea of cross version, nor he opted to produce any evidence in this respect, in his own defence within the meaning of section 340(2) Cr.P.C, therefore, this objection of learned counsel holds no water, hence discarded, in all eventualities.
14. Medical evidence of the deceased i.e. inquest report Ex. PW-2/1 as well as P.M report, have been made part and parcel of the case file. Prosecution examined Dr. Aqil Ahmad as PW-8. In his P.M report he had opined that the deceased then injured had received head injury of the size of 1.5 inches on left parietal region of his head. Muscle deep, bone exposed and fracture was also spotted on the wound with excessive bleeding and as per his opinion the cause of death was head injury and the weapon of offence was categorized as sharp object, 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 appellants.
15. Even in view of circumstantial evidence in the form of blood-stained pebbles from the spot and blood-stained garments of the deceased as well as injured PWs, the prosecution's case getting added vigor and strength, more particularly, when weapon of offence i.e. pickaxe was shown recovered on pointation of one of the appellant namely Gul Rahman, from his cattle-shed, lying beneath the cot, therefore, the circumstantial evidence too, has rightly been believed by learned trial Court qua conviction of appellants.
16. Motive behind the occurrence was alleged by prosecution to be a dispute over excavation of sand from landed property, in which both the parties were at diggers drawn against each other. During the course of lengthy and searching cross-examination on behalf of defence, motive part of the case could not be shattered. Even otherwise, it is also settled proposition of law that motive is a double-edged weapon which cuts both sides in like manner. Reliance is placed on the judgment of apex Court titled State v. Muhammad Sharif and others (1995 SCMR 635) wherein it was held that:-
"So far as enmity is concerned, it is a double-edged weapon and cuts both ways. If it is considered as sufficient motive for commission of offence, it can also be considered as sufficient for false implication as well."
17. Prosecution has proved its case against appellants 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 appellants for murder of deceased as well as causing injuries to injured PWs, is not open to any exception.
18. In view of what has been discussed above, instant Criminal Appeal bearing No. 239-M of 2023 as well as connected Criminal Revision bearing No. 51-M/2023, having no force, are accordingly dismissed and as a natural corollary impugned conviction and sentences of appellants recorded by learned trial Court through impugned judgment is upheld and maintained.
JK/96/P Appeal dismissed.