ASHIQ HUSSAIN alias MUHAMMAD ASHRAF vs THE STATE

' MUHAMMAD MUNIR KHAN, J.---This Jail petition is directed against the judgment dated 22-1-1992 of the Lahore High Court, Lahore whereby the appeal filed by Ashiq Hussain alias Muhammad Ashraf (petitioner) against his conviction recorded by the learned Sessions Judge, Okara on 28-6- 1989 under section 302, P.P.C. For the murder of Khalid Hussain, was dismissed and the sentence of death was confirmed.

2. Prosecution case briefly stated is that on 26-12-1988 at 4-00 p.m. Within the area of Chak 39/3-R, of Police Station Saddar, Okara, the petitioner on account of dispute over the construction of boundary wall on disputed land, fired two shots at Khalid Hussain resulting in his immediate death.

The occurrence was seen by Muhammad Hussain (P.W.7) father of the deceased and Khushi Muhammad (P.W.8).

3. Dr. Nasrullah Beg (P.W.1) conducted post-mortem examination on the dead body of Khalid Hussain. H[e found two fire-arm injuries and one abrasion on the dead body. In his opinion the death was due to injury to heart and lungs (injury No,2 caused with firearm) which was sufficient to cause death in the ordinary course of nature.

4. The petitioner was arrested on 31-12-1988 by Muhammad Ashraf, Inspector (P.W.9). On the same day he produced his licensed revolver in the presence of Azam Ali (P.W.5). No empty was recovered from the spot. Therefore, the revolver was not sent to the Forensic Science Laboratory.

5. Prosecution produced eleven witnesses in all. Muhammad Hussain (P.W.7) and Khushi Muhammad (P.W.8) had given the ocular account of the occurrence. They claimed to have seen the petitioner firing two shots from his revolver at Khalid Hussain who fell down on the ground and succumbed to the injuries immediately. Muhammad Hussain has also deposed about the motive.

Azam Ali (P.W.5) and Muhammad Sharif (P.W.9) have supported the recovery of the revolver from the petitioner. Rest of the evidence is more or less of formal nature.

6. When examined under section 342, Cr.P.C., the petitioner denied all the incriminating circumstances. Denying his presence and participation in the occurrence, he gave the following version of the occurrence:- "A plot claimed by Muhammad Hussain complainant is a State land which is in possession of my brother Liaqat for many years. Neither me nor my brother Liaqat can sell this land. The said piece of land is located on the Pakka road leading to Noor Shah from Okara. On the day of occurrence after sunset in the darkness of the night, Khalid Hussain deceased with a few others tried to take forcible possession of said piece of land which was resisted by the servants of my brother Liaqat and my brother Liaqat. There was cross-firing between the parties as a result of which Khalid Hussain received injuries. I was not present at the spot, nor the P.Ws. Muhammad Hussain and Khushi Muhammad were present. The present case was registered after investigation at the spot. The complainant did not know as to who had fired at the deceased and that is why, they gave my name as Ashraf in the F.I.R. And after investigation, they substituted my original name as Ashiq."

' He neither produced evidence in defence nor gave evidence on oath in disproof of the charge against him or in support of the above-stated defence version.

7. The learned trial Court and the learned High Court both have believed the ocular evidence produced by the prosecution and have rejected the plea taken by the petitioner in his statement under section 342, Cr.P.C.

8. Mr. Muhammad Munir Peracha, Advocate, the learned counsel for the petitioner has raised the following points before us:-- ' That the learned High Court has first discussed the defence case/evidence and after disbelieving the same has believed the prosecution case as a whole. According to the learned counsel, it was a topsy-turvy way of dealing with a criminal case and has caused prejudice to the petitioner/accused.

(ii) That the occurrence took place in the manner stated by the petitioner in his statement under section 342, Cr.P.C. As a matter of fact, Liaqat Ali, brother of the petitioner, and his servants had acted in exercise of the right of defence of property and person and that the deceased was injured during cross-firing by the parties.

9. Taking point No,(i), we fmd that the prosecution and the accused both parties admitted the occurrence but have given different versions. Onus lies on the prosecution to prove its case through reliable evidence, direct or circumstantial, and that too, beyond reasonable doubt. In the instant case, the High Court has discussed the defence plea/case/evidence first and after rejecting it, has considered and believed the prosecution case/evidence. We cannot help remarking that the High Court has approached the case in an entirely illegal and improper manner in so far as it has discussed the defence case first and then the prosecution case. After rejecting the defence case, the High Court has accepted the prosecution case. This is, to say the least, a topsy-turvy way of dealing with a criminal case and cannot be approved by this Court. For the guidance of all the Courts in the country We propose to lay down rules/principles for the appreciation of evidence in criminal cases of one version or of two versions. The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the .Prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C., statement under section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. Is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counterversions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the questions, viz., is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly.

10. After having appreciated the present case in accordance with the aforestated principles we for no reason to disbelieve the ocular account of the occurrence stated by Muhammad Hussain (P.W.7) and Khushi Muhammad (P.W.8). The statements made by them do not suffer from any legal infirmity, material contradictions, or discrepancies and dishonest improvements. They had no serious enmity to involve the petitioner falsely in place of the real culprit or assign him the major role in the occurrence. The trial Court and the learned High Court have believed them. On our assessm ent of the evidence, we for them confidence inspiring witnesses.

11. In the case in hand, the petitioner could easily have produced his brother Liaqat Ali and his servants to substantiate his version. He, at least, could have made statement on oath in proof thereof. But he has failed to do so. Therefore, we would hold that he has failed to establish his case.

12. There is also no reasonable possibility of the defence version being true because we do not see any valid reason for the substitution of the petitioner in place of his brother Liaqat Ali. Had Liaqat All been present in the occurrence, he would not have been spared at all. The circumstances of the absence of injury on the complainant party, non-recovery of any empty from the place of occurrence and want of title of the petitioner in the plot whereon construction was raised, negate reasonable possibility of the petitioner or his brother and his servants having acted in exercise of self-defence of property or person or of the deceased having received injuries during the cross- firing between the parties. Furthermore, the petitioner did not disclose his defence version which does not amount to a confession to the police at the time of his arrest. Needless to say that the plea or version told by the accused which does not amount to confession of the crime with which he is charged, is always relevant to show the stand taken by him at the earliest opportunity. In the circumstances of the case, the plea taken by the accused in statement under section 342, Cr.P.C. Is afterthought, and there is no possibility of its being reasonably true.

13. We have considered the question of sentence with utmost care on our part. The sentence awarded to the petitioner is a legal one. We do not see any mitigating circumstance in favour of the petitioner for lesser penalty.

14. Accordingly, leave to appeal is refused and the petition is dismissed.

15. Before parting with the judgment we propose to remind all other Courts in Pakistan that under Article 189 of the Constitution of the Islamic Republic of Pakistan, decision of the Supreme Court enunciating principles of law is binding on them. By our experience we have noted tendency on the part of Magistrates/Assistant Commissioners/Additional District Judges/District Judges to ignore the judgments of the superior Courts when cited before them. They would not even read the citations and would give the impression as if the law laid down by the Supreme Court/High Courts is not meant for them. They often tell the Advocates to produce the law books before the superior Court as and when the matter reaches there. This treatment of the judgments of the superior Courts and attitude of the Presiding Officers is contemptuous, contumacious and also amounts to misconduct. By this judgment we intend to strike a note of warning to the subordinate Courts in the country that they are legally bound to follow the principles of law enunciated by the Supreme Court and if they do not follow it then serious view of the matter can be taken against the delinquent as and when the misconduct comes or is brought to the notice of this Court.