Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Appeal No. 286 of 1980, heard on 26th March, 1984.
--S. 302/148/149/34-Murder-Appreciation of evidence---Long standing enmity existing between parties--Criminal cases between eye-witnesses and accused pending in Courts---Complainant admit ting his strained relations with accused---One of prosecution witnesses admitting that he alongwith deceased was challaned for attempted murder and was convicted-Such witnesses, held, could safely be termed as interested and partisan witnesses-Guiding principles for appreciation of ocular evidence of such witnesses who charged accused, against whom they bad some motive for false implication, stated.
Niaz v. The State P L D 1960 S C 387 fol.
--S. 302/148/149/34 - Murder - Making of F. I. R. with promptitude gives rise to conclusion that eye-witnesses mentioned in F. I. R. could not have been procured in such a short time if they had not seen occurrence and that person who runs to police station immediately after occurrence must have had some connection with that; may he be as an eye-witness.
Riaz Ahmad alias Rajoo and another v. The State P L D 1970 Lah. 689 fol.
-- S. 302/148/149/34-F. I. R. lodged with promptitude-Names of accused persons and part played by each of them and weapon used mentioned in F. I. R.--Nothing brought on record that F. I. R. was not genuine document having not been prepared at time and place as it purports--F. I. R., held, lodged without deliberation.
Riaz Ahmad alias Rajoo and another v. The State P L D 1970 Lah. 689 fol.
--S. 302/148/149/34--Murder--Appreciation of evidence-Eye witnesses giving plausible explanation of their presence on spot-Presence of eye-witnesses appearing to be quite probable in attending circumstances---All accused persons, admittedly, fully known to eye-witnesses being residents of same vicinity and involved in litigation---Occurrence having taken place at maghrabwela eye witnesses could easily identify accused persons-Held, there was no doubt that eye-witnesses in fact had seen occurrence and were in position to identify accused in circumstances.
---S.302/148/149/34--Murder-Appreciation .of evidence-Enmity between accused and eye-witnesses-Character of such eye-witnesses, held, partisan-Corroboration- Eye-witness having stood test of cross-examination, except for minor contradictions and immaterial discrepancies here and there no inherent infirmity warranting total exclusion of their evidence-Enmity per se, held, does not neces sarily render such statements doubtful but requires independent corroboration-Such eye-witnesses, therefore, cannot be relied upon without corroboration in respect of each of several accused. [Witness]
--S.302/148/149/34-Murder---Appreciation of evidence---Crime weapon (hatchet)-Nothing on record to show that sealed parcel of weapon used remained intact before same was delivered to Chemical Examiner-Held, possibility that parcel containing crime weapon was tampered with before it could be delivered to Chemical Examiner, could not be excluded-Benefit of doubt, therefore, can be given to accused as a matter of his right in circumstances. [Benefit of doubt].
--S.302/148/149/34-Murder-Appreciation of evidence---Ocular evidence satisfactorily corroborated by recovery of crime weapon which connected accused with murder beyond reasonable doubt --Prosecution witnesses corroborating recovery of crime weapon and having no enmity with accused-No major defects pointed out in statement of prosecution witness in that behalf---Crime empties collected from place of occurrence and sealed into parcel-Such parcel deposited with Moharrir (Head Constable) who kept it intact to malkhana and handed over parcel intact to foot constable for onward transmission to Ballistic Expert-Foot constable delivered same intact in office of Forensic Science Laboratory-Head Constable and foot constable not produced to prove deposit of sealed parcel intact in office of Forensic Science Laboratory---Crime weapon recovered from accused after about Ii months of delivery of crime empties in office of Ballistic Expert-Held, since empties were not available with police at time of recovery of crime weapon therefore, question of tampering with crime weapon did not arise and as such omission on part of prosecution to produce Moharrir and foot constable to prove deposit of sealed parcel containing crime weapon and its intact delivery in office of Forensic Science Laboratory became insignificant--Investigation, held, conducted honestly in circumstances.
--S. 302/148/149/34-Murder-Appreciation of evidence-Recovery of crime weapon and empties--Evidence of Investigating Officer as prosecution witness-Investigation conducted in a straightforward manner-Implicit reliance, held, could be placed on evidence of such Investigating Officer.-[Witness].
--S. 302/148/149/34-Murder-Sentence-Deceased had murdered father of co-accused-Trial Court also giving reasons for not impos ing capital punishment to accused-Sentence not interfered with by High Court in circumstances.-[Sentence].
--S. 302/148/149/34-Murder---Appreciation of evidence-Crime weapon (gun) recovered from co-accused and delivered in Forensic Science Laboratory before recovery of crime weapon of accused --Report of Ballistic Expert revealed that crime empties were not fired from that gun-Report of Ballistic Expert, held, could not be lost sight of in circumstances.
Khadim Nadeem Malik for Appellants.
Tasneem Sarwar Chauhan for the State.
Sh. Muhammad Usman for the Complainant.
Dates of bearing: 24th and 26th March, 1984.
This Criminal Appeal and the connected Revision Petition No. 1104/80 arise from the judgment of the learned Additional Sessions Judge, Sahiwal whereby he on 28th January, 1980 while acquitting Muhammad Azhar, Abdul Sattar and Muhammad Nawaz co-accused convicted Mushtaq Ahmad and Yaqoob appellants under section 302/34, P. P. C. for causing the death of Ali Bakhsh alias Bukhshi and sentenced them to imprisonment for life each and a fine of Rs. 10,000 in default whereof to further R. I. for six months with the direction that the fine when recovered be paid to the legal heirs of the deceased as compensation.
2. The occurrence took place on 23rd August, 1976 at maghrabwela near bus-stand Iqbal Nagar of Police Station Kassowal. The distance between the place of occurrence and the Police Station is ten miles. The F. I. R. Exh. P. D. was lodged by Abdul Wahab P. W. 7 on the same day at 9 p. m. and was recorded by Ali Ahmad Shah Sub-Inspector P. W. 12. The deceased was the personal servant of Abdul Wahab P. W. 7 (hereinafter called as complainant).
3. The motive as alleged by the prosecution was that Ali Bakhsh alias Bukhshi (hereinafter called as deceased) and one Karamat Hussain had murdered Muhammad Akram, the father and brother, respectively of Azhar and Muhammad Nawaz acquitted co-accused about 12 years before the present occurrence. In order to take the revenge of that murder, Azhar and Muhammad Nawaz co-accused alongwith the appellants and Abdul Sattar who are stated to be the fast friends of Azhar accused have caused the death of the deceased.
4. As for the main occurrence, prosecution case is that on the event ful day, early in the morning, complainant P. W. 7 alongwith his personal servant, the deceased, left for Sahiwal. On reaching Ada Iqbal Nagar, the complainant told the deceased to remain there till he returns from Sahiwal. At about maghrabwela Abdul Wabab came back from Sahiwal and got down from the bus at Ada lqbal Nagar. The deceased was already there waiting for his return. The complainant and the deceased then started for their Chak. When they were passing in front of Moulvi Sultan's hotel, Azhar co-accused raised lalkara. The complainant then saw that Azhar and Abdul Sattar armed with guns, Muhammad Nawaz empty-handed, Mushtaq Ahmad appellant armed with pistol and Muhammad Yaqoob appellant armed with chhuri were present near the meat selling phhatha of Mushtaq Ahmad appellant. On the instigation of Muhammad Nawaz, the co-accused opened attack on the deceased. Azhar fired shot on the right side of the chest of the deceased followed by a short fired by Abdul Sattar. According to the F. I. R. this shot had hit at the umblicus. The deceased then fell down. Mushtaq Ahmad reaching just over the deceased fired shot from his pistol at the face of the deceased. Thereafter Yaqoob appellant gave several chhuri blows on the different parts of the body of the deceased. The occurrence was also seen by Naseer P. W. 8, Azim and Bagh (both not produced). The accused then decamped with their weapons.
5. On 24th August, 1976 at 8 a. m. Dr. Khalid Mahmood P. W. 1 conducted the post-mortem examination on the dead body of Ali Bakhsh and found following injuries on his person:-
"(1) An incised wound 1 " x 1/10" x superficial on the left side of head about 3 " from the left ear.
(2) An incised wound 2 " x 1/5" x bone deep on the left side of head 2 " from the middle of left eye-brow and just close to injury No. 1.
(3) An incised wound 2 " x 1/10" x bone deep on the left side of head about 2" from left eye-brow and about " from injury No. 2.
(4) An incised wound 1 " x 1/16" x bone deep on the forehead left side about 1 " from the left eye-brow.
(5) An incised wound 2 x " x bone deep on the left side of fore head about " from the left eye-brow.
(6) An incised wound 1 " x 1/10" x skin deep on the left side of fore head just above left eye-brow.
(7) An incised wound 1 ' x 1" x bone deep on middle part of nose extending from left to right. Bone underneath was cut.
(8) An incised wound 1" x 1/5" x deep going on the left side of face about 1 " from left ear.
(9) An fire-arm lacerated wound 2" x 1" x deep going on the left side of face 3" from left ear from nasal alae and " from-left eye. Blackening and charring around the margins of wound were present. The margins of wound were inverted. There was a wound of entrance. Two pieces of wads were removed from the wound.
(10) An incised wound x " x bone deep on the upper part of front of right chest just below the medial end of right clavicle. There was corresponding cut on the shirt which was encircled and initialled.
(11) Eight fire-arm lacerated wounds in an area of 1 " x 1 " on the upper part of front of right chest about 3 " from right clavicle and one inch above the right nipple. Each fire-arm wound measured " x " x deep going. The margins of wounds were inverted and there was very mild blackening around the margins of wounds. Corresponding marks on shirt and vest were encircled and initiated by me.
(12) An incised wound 2 x " x deep going on the right side of abdomen f from umblicus. Corresponding cuts of shirt and vest were encircled and initialled by me.
In his opinion Injuries Nos. 9 and 11 were caused by fire-arm fired from within about four feet and the rest of the injuries were caused by sharp -edged weapon. Injuries Nos. 9, 11 and 12 were grievous and fatal as well. These injuries were individually and collectively sufficient to cause death in the ordinary course of nature. The rest of the injuries were simple. The death had occurred due to shock and haemorrhage. The death was immediate and the time between the death and the post-mortem was about 18 hours. In cross-examination, the Doctor stated that injuries Nos. 9 and 11 were not caused by one shot but were result of two indepen dent shots.
6. On reaching the spot, Ali Ahmad Shah S.I. P. W. 12 took into possession crime empties Exhs. P. 1/l and 2 from the place of occurrence, vide memo. P. E. On 20th September, 1976 he arrested Muhammad Azhar and Abdul Sattar co-accused. On 30th September, 1976 Muhammad Azhar led to the recovery of gun Exh. P. 2 from his dhari which was taken into possession, vide memo. P. G. On 17th October, 1976 he arrested Mushtaq Ahmad, Yaqoob appellants. On 22nd October, 1976 Mushtaq Ahmad got recovered pistol P. 3 from his house which was taken into possession, vide memo. P. H. On the same day, Muhammad Yaqoob got recovered blood-stained chhuri Exh. P. 4 from his house which was taken into possession, vide memo. P. J. The Serologist report Exh. P. U. shows that the hatchet P. 4 was stained with human blood. The report of the Ballistic Expert Exh. P. V. reveals that the crime empties were not fired from gun P. 2 recovered from Azhar. The Forensic Science Laboratory's report Exh. P. W. indicates that crime empties P. 1/1 and 2 had been fired from pistol P. 3 recovered from Mushtaq Ahmad appellant.
7. In order to prove its case, the prosecution examined as many as 12 witnesses, out of whom Abdul Wahab P. W. 7 and Naseer P. W. 8 have given the ocular account of the occurrence. They supported the case of the prosecution as detailed above on all material particulars. Naseer P. W. 8 and Ahmad Ali Shah S.I. P. W. 12 have proved the recovery of crime empties Exhs. P. 1/1 and 2 from the spot. They further stated that the empties were scaled into a parcel. Muhammad Ajmal Shah P. W. 10 and Ali Ahmad Shah S.I. P. W. 12 have stated that in their presence Mushtaq Ahmad and Yaqoob appellants had got recovered pistol P. 3 and blood-stained chhuri P. 4 from their houses. The rest of the evidence is more or less of formal nature.
8. The appellants when examined under section 342, Cr. P. C., denied all the incriminating circumstances and raised plea of false implication. The appellants as well as the acquitted accused did not lead any evidence in defence.
9. The trial Court acquitted Azhar, Muhammad Nawaz and Abdul Sattar co-accused for want of corroboration of inimical and interested ocular evidence. As for the appellants, the trial Court disbelieved the motive and recorded conviction on the strength of ocular evidence corroborated by the recovery of pistol P: 3 from Mushtaq Ahmad and blood stained chhuri Exh. P. 4 from Yaqoob appellant.
10. The learned counsel for the appellants submitted that the appel lants had no direct motive to kill the deceased; that the two eye-witnesses are related to the deceased and inimical towards the appellants; that there are material contradictions and discrepancies in the statements of the witnesses; that the eye-witnesses have been disbelieved to the extent of three acquitted accused ; that recoveries of pistol P. 3 and chhuri P. 4 from the appellants are fake ; that there is no evidence to the effect that pistol P. 3 and chhuri P. 4 were deposited intact in the malkhana and no one had tampered upto the time when the same were delivered to Forensic Science Laboratory and to the Chemical Examiner inasmuch as the Head Constable with whom these articles were deposited and the Foot Constable to whom the articles were entrusted for onward transmission to the Chemical Examiner and Forensic Science Laboratory have not been produced.
On the other hand, the learned counsel for the State borrowed argu ments from the judgment of the trial Court to support the conviction of the appellants. The learned counsel for the complainant/petitioner in the connected revision urged that the trial Court had acquitted co-accused on flimsy grounds; that the conviction of the acquitted co-accused and the appellants could have been safely recorded on the ocular evidence alone and that in the circumstances of the case, the appellants deserve capital punishment.
11. I have attended to the arguments addressed by the learned counsel for the parties and have examined record carefully. On my independent assessment of the evidence I find (as admitted by the com plainant) that there was long standing enmity between the parties. There were criminal cases between the eye-witnesses and the accused persons. The complainant frankly stated that his relations with the accused were strained. Naseer P. W. 8 admitted that he alongwith deceased were challaned for the attempted murder of brother of Jalla and were convic ted. In this view of the matter, the two eye-witnesses can be safely termed as interested and partisan witnesses. Since these two interested persons claiming to be eye-witnesses of the occurrence have charged the appellants and the co-accused against whom they have some motive for false implica tion, therefore, I desire to appreciate the ocular evidence in the light of guiding principles laid down by the learned Supreme Court in case Niaz v. The State (P L D 1960 S C (Pak.) 187), wherein it has been stated:-
"Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and be who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can by its own probative force bring home the charge to the accused. It should, however, be a circumstance which points -to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circum stances of each case. However, the circumstance itself must be proved beyond all reasonable doubt."
I, therefore, proceed to resolve the first question i. e. whether in fact Abdul Wahab P. W. 7 and Naseer P. W. 8 had seen the occurrence and were in a position to identify the assailants For that, I find that the F. I. R. Exh. P. D. was lodged by the complainant within few hours of the occurrence. The name of the accused persons including the appellants, the part played by each of the accused and the weapons used by them are mentioned therein. Nothing has been brought on record to show that the document Exh. P. D. was not a genuine document having not been prepared at the time and place as it purports. The fact that no injury was assigned and attributed to Muhammad Nawaz co-accused with whom the complainant bad direct enmity reveals that F. I. R. was lodged with out deliberations. The deceased having received ten incised wounds, the complainant could easily allege that Muhammad Nawaz was also armed with a sharp-edged weapon and had given injury/injuries to the deceased That being the position the making of F. I. R. with promptitude gives rise to conclusions as held by the Division Bench of the Lahore High Court in case Riaz Ahmad alias Rajoo and another v. The State (P L D 1970 Lah. 689), that eye witnesses mentioned therein could not have been procured in such a short time if they bad not seen the occurrence and that the person who runs to the Police Station immediately after the occurrence must have had some connection with it may he be as an eye-witness. No doubt the complainant lives at a distance of 1 squares from the place of occurrence but nowhere it has been suggested in the cross-examination that he was summoned from his residence to be made an eye-witness or as complainant. It was not even suggested to him that he had lodged the F. I. R. after deliberation or preliminary investigation. The eye-witnesses have given plausible explanation of their presence on the spot at "the fateful time. Their presence appears to be quite probable in the attending circumstances. Admittedly all the accused persons were fully known to the eye-witnesses. They live in the same vicinity and were involved in litigation. The occurrence having taken place at maghrabwela eye-witnesses could easily identify the culprits. For all these reasons I am of the view that there is no reason to doubt that the eye-witnesses in fact had seen the occurrence and were in a position to identify the offenders. The first question is answered accordingly. Coming to the second question, whether the eye-witnesses can be relied upon for convicting the accused without corroboration I find that although the eye-witnesses have stood the test of cross-examination and except for minor contradictions and immaterial discrepancies here and there, there is no inherent infirmity warranting the total exclusion of their evidence. It is well-settled that enmity per se does not necessarily render statements doubtful. Each case of course has to be decided on its own facts. Despite what has been stated above, in view of the partisan character of the eye-witnesses, I desire to follow the rule of prudence which always requires independent corroboration of such type of evidence. My reply to the second question, therefore, is that the eye-witnesses should not be relied upon without corroboration in respect of each of several accused. Adverting to this aspect, I do not see any conformity evidence or circumstances connecting Azhar, Abdul Sattar and Muhammad Nawaz with the commission of the crime. To my mind, the three accused have rightly been acquitted by the trial Court.
As far Yaqoob appellant, the trial Court has sought corroboration of ocular evidence from the recovery of blood-stained hatchet P. 4 from him, I, however, have not been able to persuade myself to act upon this piece of evidence inasmuch as the Head Constable and Foot Constable having been withheld there is nothing on record to show that the sealed parcel of hatchet P. 4 remained intact before it was delivered to the Chemical Examiner. The possibility that the parcel containing hatchet P. 4 was tampered with before it could be delivered to the Chemical Examiner, cannot be excluded. The benefit of doubt has, therefore, to be given to Yaqoob appellant as a matter of his right and not as grace or concession.
Taking up the case of Mushtaq Ahmad appellant, I find that the ocular evidence stands satisfactorily corroborated by the recovery of pistol P. 3 which connects him with the murder of the deceased beyond reasonable doubt. The crime empties were collected from the spot on 23rd August, 1976 and were sealed into a parcel. The parcel was deposited with Falik Sher Head Constable P. W. 2 who kept it intact in the malkhana and handed over the same intact to Muhammad Bilal Foot Constable P. W. 3 for onward transmission to Ballistic Expert. The Foot Constable P. W. 3 delivered the same intact in the office of the Forensic Science Laboratory on 8th September, 1976. The pistol P. 3 was recovered from Mushtaq Ahmad appellant on 22nd October, 1976 i.e. after 1 months of the delivery of the crime empties in the office of the Ballistic Expert. Since the emp ties P. III and 2 were not available with the police at the time of the reco very of the pistol and had been received in the Forensic Science Laboratory 1 month prior to the recovery of the pistol P. 3, therefore, the question of tempering with pistol does not arise and as such the omission on the part of prosecution to produce Moharrir, Head Constable and the Foot Cons table to prove deposit of sealed parcel containing pistol P. 3 and its intact delivery in the office of Forensic Science Laboratory has become insigni ficant. Naseer Ahmad P. W. 8 stated that empties P. 1/1 and 2 were taken into possession from the spot and were sealed into a parcel. Ali Abroad Shah S. I. P. W. 12 supports him. Naseer Ahmad P. W. 8 had no direct enmity with Mushtaq Abroad appellant. Ajmal Shah P. W. 10 stated that Mushtaq Abroad appellant had got recovered pistol P. 3 from his house. This witness has also no direct enmity with Mushtaq Ahmad appellant. Naseer and Ajmal Shah are the residents of the same vicinity. Learned counsel for the appellants have failed to point out any major defect in their statements. In the instant case it appears that the investigation was conducted honestly. Gun P. 2 was recovered from Azhar co-accused on 30th September, 1976 and was delivered in the Forensic Science Laboratory on 11th October, 1976, i.e. before the recovery of pistol P. 3. The report of the Ballistic Expert Exh. P. V. reveals that the crime empties were not fired from that gun. To my mind this is an important circumstance which cannot be lost sight of. Since Ahmad Ali Shah S. I. P. W. 12 had conducted investigation in a straightforward manner, I am of the view that as far the recoveries of empties from the spot and pistol P. 3 from Mushtaq Ahmad implicit reliance can be placed on his evidence. The g recovery of pistol P. 3 from Mushtaq Ahmad which has been believed by me connects the appellant with the murder of the deceased with confi dence. I feel satisfied that so far as Mushtaq Ahmad appellant is concerned, the witnesses have spoken the truth. I may make it clear that this does not mean that they had not spoken truth with regard to the other co -accused. It is only as an abundant caution that their statements have not been acted upon for want of corroboration qua the acquitted accused and Yaqoob appellant.
12. The upshot of the discussion is that there being satisfactory basis to sustain the conviction recorded and sentence awarded to Mushtaq Ahmad appellant under section 302, P. P. C. the appeal is dismissed to his extent. The sentence of imprisonment for life, fine of Rs. 10,000 and the sentence in lieu thereof are maintained. As far the request of the learned counsel for the petitioner in the connected revision for the enhance ment of the sentence, I do not see any justification. Since the deceased had murdered the father of Azhar co-accused and the trial Court has also given reasons for not imposing the capital punishment, I do not want to interfere with the legal sentence awarded to Mushtaq Abroad appellant. He would, however, get benefit of the provisions of section 382-B, Cr. P. C. As far Yaqoob appellant, giving him the benefit of doubt, he is acquitted of the charge and shall be released forthwith if not required in any other case. Resultantly the connected revision petition is dismissed.
M. Z. M. Order accordingly.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer