Iftikhar Hussain Butt, J.--The above titled appeals are directed against the judgment dated 10.07.2008 passed by District Criminal Court Muzaffarabad, whereby appellant Muhammad Maqsood was convicted under Section 302-B, APC and sentenced to 25 years R.I. He was also convicted and sentenced to two years R.I under Section 13/20/65 Arms Act. He was further ordered to pay Rs, 2,00,000/- (two lac) compensation under Section 544(a), Cr.P.C., which after realization will be paid to the heirs of the deceased. In default of realization or payment whereof the appellant would suffer simple imprisonment for six months. Both the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.0 was extended to him. The respondents Abdul Qayyum and Gulfraz were acquitted of the charge.
The necessary facts are that a Case No, 47/06 was registered by Shaukat Jameel Head Constable Police (P.W.28) on receiving a Marasla by Syed Asad Ali Bukhari SI/SHO (P.W.37). Altaf Ahmad (P.W.
1) presented a written report to SHO Police Station Danna on 25.10.2006 at 8:30 am at Camp Margalli that his real brother Mukhtar Ahmad runs a grocery shop in Margalli bazaar and sleeps at night in upper storey of the shop for its protection. Yesterday night, after closing shop when he went to sleep on .upper storey, Nazakat Hussain S/O Zardad R/O Pothian also slept with him. On 7:45 am Chanzeb informed him that his brother Mukhtar Ahmad is lying soaked in blood in veranda of the upper storey of his shop. On this information, the complainant a'rived at the spot. Many inhabitants of the area also reached there. He saw his brother Mukhtar Ahmad lying soaked in blood in veranda of the upper storey of his shop. He found an injury of a shot fired upon left side of his chest. The shop situated in lower storey was also found open. At midnight of 24/25.12.2006 some unknown person or persons murdered his brother Mukhtar Ahmad by firing a shot of lethal weapon.
On inquiry, Nazakat Hussain told him that at night two masked persons came on upper storey of the shop and knocked at the door. One of them was armed with a pistol, who entered in and demanded for keys of the shop and cash. Thereupon, Mukhtar Ahmad handed over currency notes of rupees five thousand and one thousand alongwith the keys. One of them also took away mobile phone lying under the pillow. Nazakat Hussain fled away and found a third masked person who was standing down near the shop, who tried to catch hold of him but he ran away due to the darkness. The complainant does not apprehend any doubt upon any person. On this report, a case under Sections 302, 34, APC read with Section 20. The Offences Against Property (Enforcement of .Hudood) Act, 1985 (hereinafter to be referred as EHA) was registered.
Investigation was initiated on 25.12.2006. Syed Asad Bukhari (P.W.37) prepared the injury form Exh.PS and inquest report Exh.PQ on the same day. Thereafter, he sent the dead body for postmortem. He took into possession a blood-stained sheet (vide recovery memo Exh.PF), a stick (vide recovery memo Exh.PG) and some other articles a lock with six keys, an axe, a cash Rs, 525/- and cash register (vide recovery memo Exh.PD) and a try-circle lock without key, muffler/mask and a muffler (vide recovery memo Exh.PE) in the presence of Muhammad Majeed (P.W.14) and Muhammad Yunus (P.W.15). He further took into possession an identity card, a cash Rs, 55,000/- and a citizen watch from the dead body of the deceased (vide recovery memo Exh.PH), an empty lying near the dead body (vide recovery memo Exh.PI) and a bloodstained muffler mask type lying under. the dead body (vide recovery memo Exh.PJ) witnessed by Rahimdad (P.W.16) and Abdul Hameed (P.W.17). He also, prepared site-plan Exh.PS without any scale and took into possession a silver ring of deceased produced by Dr. Naseer Ahmad Shaikh (vide recovery memo Exh.PK) and the blood-stained clothing of the deceased (vide recovery memo Exh.PL) attested by Muhammad Ishaq (P.W.18) and Muhammad Tasveer (P.W.19). He further got drafted site-plan Exh.
PV on 49.12.2006 by Pervaiz Iqbal Awan Patwari. (P.W.30). On 06.01.2007, Muhammad Maqsood convict-appellant while in police custody led to the recovery of .30-bore pistol (vide recovery memo Exh.PQ) and also a spade (vide recovery memo Exh.PO in presence of Basharat Hussain (P.W.20) and Muhammad Wazir (P.W.21). He further prepared site-plan Exh.PW of the recovery of weapon of offence. On 11.01.2007, Muhammad Maqsood, convict-appellant also led to the recovery of three live rounds from a field 12 yards down from Danna Chhattar road, 40 yards away from the place of occurrence (vide recovery memo Exh.PM) attested by Muhammad Is'haq (P.W.18) and Muhammad Banaras (P.W.22). He also took into possession a mobile phone, a cash Rs, 13,00/-, a blade, a needle and a reel (vide recovery memo Exh.PP) on pointation of convict-appellant witnessed by Basharat Hussain (P.W.20) and Muhammad Wazir (P.W.21 ). He further prepared site- plan Exh.PY of recovery of stolen property and a site-plan Exh.PX, recovery of three live rounds. The said I.O. also prepared Fardshinakhat Exh.PC of a mask taken into possession from the room of the deceased and a Fardshinakhat Exh.PB of stolen mobile phone from the possession of convict in presence of Basharat (P.W.20) and Muhammad Wazir (P.W.21). On 15.02.2007, he took into possession Jeep.No, LXY-3696 used during the occurrence (vide recovery memo Exh.PN) witnessed by Naveed Ahmad Constable (P.W.24) and Muhammad Kaleem Constable .(P.W.25). The reports of Chemical Examiner Exh.PZB and Forensic Science Laboratory Exh.PZC were also produced in support of the prosecution case. On 25.12.2006 at 3:00 pm Dr. Naseer Ahmad Shaikh (P.W.31) conducted postmortem of the deceased and made the following observations:--
1. The clothing of the deceased were blood-stained and torn at entry and exit.
2. At entry blackening present.
3. A small circular penetrating wound with inverted skin edges on right side of the chest. The wound was in the third intercostals space over anterior aspect of right lateral chest 3" below from right clavicle and 2" from right nipple.
4. 11/2cm perforating wound in the back over right side of central part at the level of third thoracic vertebra.
5. Bruise 21/2cm on right cheeks.
6. Abrasion on left side of the face.
7. Abrasion on left knee.
According to Doctor P.W, the cause of death is a bullet injury on right side of chest tracking through the upper lobe of the right lung. The range of the fire is close within three feet and the probable time1 which " elapsed between the injury and death has been stated 15 to 30 minutes.
After completion of investigation, the appellant Muhammad Maqsood alongwith his co-accused Abdul Qayyum and Gulfraz were challaned to District Criminal Court Muzaffarabad.
At the commencement of trial, charge sheet was framed against all the accused-persons in offences under Sections 302,34, 460, APC read with Section 20, EHA and under Section 13/20/65 Arms Act. All the accused pleaded not guilty and claimed to be tried.
The prosecution produced, in all, twenty-nine (29) witnesses to prove its version.
After completion of the prosecution evidence, the salient features and circumstances appearing in the prosecution evidence were put to the accused-persons for their explanation as required by Section 342, Cr.P.0 but they denied the prosecution story in toto. They also did not enter the witness box under Section 340 (2) Cr.P.0 to vindicate their position by deposing on oath.
In defence Muhammad Iqbal (D.W.1) and Qammar Din (D.W.2) entered the witness box.
After conclusion of the trial, the learned District Criminal Court passed the impugned judgment as detailed in Para (1) above, which has been assailed by the convict-appellant as well as by the complainant party. Both the appeals have been consolidated and being disposed off by this single judgment.
In support of appeal filed by Muhammad Maqsood, convict-appellant, Shabbir Ahmad Chaudhry, the learned Counsel argued that a false case has been registered against the accused-persons on account of enmity. The learned Counsel further contended that no solid and reliable evidence has been produced in support of the prosecution story but the trial Court failed to appreciate the evidence of the parties. The learned Counsel also maintained that Altaf Ahmad, complainant, has made a lot of improvements before the trial Court. He did not mention in the F.I.R about the scuffle which according to him took place between the deceased and the accused-persons and also being unmasked of the accused-persons during the occurrence. The learned Counsel pointed out that the complainant deposed about the recovery of Nokia phone of the deceased in his examination-in-chief but later on refuted the same during the cross-examination. The. learned Counsel agitated that according to the complainant, on the next day Nazakat Hussain (P.W.2) deposed about the occurrence but the same was not mentioned in the F.I.R, which creates suspicion and doubt about the prosecution version. The learned Counsel stressed upon the point that all the prosecution witnesses are closely related to the complainant; therefore, their evidence cannot be taken into consideration. The learned Counsel pressed into service the submission that no overt act has been attributed to the respondents; therefore, they were rightly acquitted of the charge by the trial Court. The learned Counsel finally prayed that the prosecution failed to prove the case against Muhammad Maqsood, convict beyond any shadow of reasonable doubt; therefore, the impugned judgment to his extent may be set aside and he may be acquitted of the charge, and it may be maintained to the extent of accused-respondents.
On the contrary, Mushtaq Ahmed Janjua, the learned Counsel for the complainant submitted that the defence has admitted the presence of accused-persons and the deceased at the spot alongwith other important facts of the prosecution story. The learned Counsel pointed out that the statement of Nazakat Hussain (P.W.2) is natural and reliable because he has given the details of the occurrence in a truthful manner but the defence did not challenge his statement upon material particulars of the prosecution story. The learned Counsel went on to argue that neither the statement of Nazakat Hussain (P.W.2) recorded under Section 161, Cr.P.C was confronted to him by the defence nor his evidence about catching hold of deceased by the accused-persons, knocking and kicking at the door of the room, demanding the keys, cash and taking away Nokia mobile phone was challenged in cross-examination, thus, all the facts mentioned above stand admitted by the defence. The learned Counsel laid great stress upon the point that Nazakat Hussain P.W categorically deposed that accused-persons killed the deceased Mukhtar but the defence also did not challenge the aforesaid portion of his examination-in-chief. The learned Counsel pressed into service the submission that the prosecution story not only finds support by sufficient and cogent evidence but it is also corroborated by the medical evidence whereby Dr. Naseer Ahmed Shaikh (P.W.31) testified the postmortem report Exh.PR in the manner that the shot was fired from a close distance therefore, blackening was present on the body of the deceased. The learned Counsel vigorously argued that Basharat Hussain (P.W.20) and Muhammad Wazir (P.W.21) alongwith Syed Asad Ali Bukhari 1.0 (P.W.37) have proved the recovery of 30-bore pistol, the weapon of offence on the pointation of accused, which further implicates the accused-persons with the commission of offence. The learned Counsel maintained that the recovery of blood-stained sheet, an empty alongwith the stolen property and reports of firearm expert and Chemical Examiner' further strengthen the case of prosecution. The learned Counsel also submitted that the accused- respondents went at the spot with the principal accused in dark hours of night in furtherance of their common intention to do away with the life of the deceased but the trial Court fell in grave error while acquitting them of the charge. According to the learned Counsel, when the prosecution evidence was relied upon to the extent of principal accused, it should have not been disbelieved to the extent of acquitted respondents. The learned Counsel prayed that the death being normal sentence of murder may be awarded to the principal accused and acquitted respondents may also be convicted and sentence according to law. Manzoor Hussain Raja, the learned Asst.A.G appearing on behalf of the State has fully owned and supported the arguments raised by the learned Counsel for the complainant-appellant. We have given our earnest consideration to the arguments addressed at Bar and examined the record with care. The instant case is based on the circumstantial evidence because no eyewitness witness is available. Altaf Ahmad (P.W.1) narrated the story as stated by Nazakat Hussain (P.W.2) and also deposed about the filing of F.I.R. At this stage, we want to resolve an objection raised by the learned Counsel for the defence that Altaf Ahmad, complainant, in his examination-in-chief deposed about the recovery of mobile phone P/1 but later on the refuted to be a recovery witness of the same in his cross-examination. The matter of the fact is that Altaf Ahmad identified the stolen mobile phone vide Fardshanakhat Exh.PB while its recovery was witnessed by Basharat Hussain (P.W.20) and Muhammad Wazir (P.W.21) and not by Altaf Ahmad. The same was recovered vide recovery memo Exh.PP alongwith other stolen property on the pointation of Muhammad Maqsood, convict.
Nazakat Hussain (P.W.2) although a young boy aged 13/14 years was 12/13 years old at the time of occurrence. His competence was tested by the trial Court, which proved him as a competent witness. A minute perusal of his statement shows that it is not only natural but he has deposed the facts as observed by him. He categorically stated the manner of occurrence and how he recognized the accused-persons. He further supported the recovery of mask P/2 and also identified the same. He categorically stated that the accused-persons present in the Court killed Mukhtar deceased. He also supported the motive by stating that an altercation took place between the parties prior to the occurrence because of a cock.
It will be pertinent to note here that the statement of Nazakat Hussain (P.W.2) was not challenged in cross-examination on material points of his examination-in-chief stated above; thus, important facts and circumstances of the case mentioned above shall be deemed to be admitted by the defence. A host of case law owns the aforesaid view but we would like to refer only a recent judgment of Apex Court in a case reported as Muhammad Tahir Aziz V. The State & another (2009 SCR 71).
Basharat Hussain (P.W.2), Chanzeb (P.W.4) and Muhammad Safeer (P.W.5) found the dead body soaked in blood at the place of occurrence. They also supported the presence of Nazakat Hussain (P.W.2) at the spot.
Mst. Tahira (P.W.8), the wife of the deceased, reached at the place of occurrence on receiving information about the murder of her husband. She further stated about the motive of the murder.
Mst. Sajjad Begum (P.W.10) testified that Maqsood convict threatened to do away with the life of the deceased in her presence because deceased refused to lend a cock to the convict.
Abdul Aziz (P.W.13), deposed about the motive of the occurrence that Abdul Qayyum accused was refused the appointment as watchman of the bazaar. He also stated that Muhammad Maqsood convict wanted to borrow a cock from the deceased who refused to do so.
Muhammad Majeed (P.W.14) and Muhammad Yunus (P.W.15) deposed about the recovery of robbed property P/5, P/6 & P/8 left by the accused-persons at the place of occurrence.
Basharat Hussain (P.W.20) and Muhammad Wazir (P.W.21) testified about the recovery of spade P/27, stolen Nokia mobile phone P/29, cash rupees thirteen hundred P/30, a needle and reel P/31 and a Treet blade P/32 owned by deceased at the instance of convict-appellant and Fardat- shanakhat Exh.PB & Exh.PC.
Muhammad Is'haq (P.W.18) stated about the recovery of blood-stained clothing of the deceased, shirt P/18, trousers P/19, vest P/20 and sweater P/21, a silver ring P/22 taken into possession from the body of the deceased and three live rounds P/26 recovered at the instance of Muhammad Maqsood convict. He is not related to the deceased or complainant.
Muhammad Banaras (P.W.22) fully supported the recovery of three live rounds P/2 6.
Pervaiz Iqbal Awan Patwari (P.W.3) testified the site-plan Exh.PV.
The Court below also conducted the purgation of P.Ws, who were found `Adil'.
In the instant case, F.I.R was recorded with promptitude. The parties are closely related and knew each other prior to the incident; therefore, no question of mistaken identity of accused could arise.
Nazakat Hussain (P.W.2) is a natural witness of the occurrence, who has given plausible explanation of his presence at the spot. The deposition of Nazakat Hussain alongwith other P.Ws is corroborated by medical evidence and inspires confidence. Dr. Naseer Ahmad Shaikh has fully stated the details of injuries and supported the version of prosecution by deposing that the shot was fired from a close range. In this manner, the circumstantial evidence was corroborated by medical evidence in all material particulars of the case. The recovery of 30-bore pistol and positive reports of Forensic Science Laboratory and Chemical Examiner further support the prosecution version. The complainant party has no reason for false implication of accused-persons in an offence entailing capital punishment. The recovery of pistol at the instance of the accused buried by him after the commission of offence alongwith three live rounds recovered on his pointation and an empty taken into possession from the place of occurrence provide sufficient incriminating circumstantial evidence to connect the accused with the crime as both the said places were in exclusive knowledge of the accused. The investigating Officer has given the details of his investigation, which has remained unchallenged though cross-examined at length by the defence.
The motive alleged by the prosecution was fully established. The prosecution witnesses though related to the complainant do not have any semblance of enmity against the deceased. It is by now settled position of law that evidence of related witnesses cannot be discarded on account of mere relationship until and unless they are found animus towards the accused-persons. The aforesaid view finds support from the following case law:--
1. 1992 SCR 249 & 294;
2. PLJ 2000 SC AJK 192; &
3. 2001 SCR 240; The version put forth by the accused in the statement recorded 'under Section 342, Cr.P.0 that they were implicated in the case due to enmity would merit rejection when taken into consideration in C juxtaposition to prosecution case. The defence plea is false and fabricated and it does not appear to be truthful whereas the prosecution version appears to be highly believable and worth consideration. The accused although not named in the F.I.R but later on implicated during investigation. Thus, the prosecution version given in the F.I.R would not prevail over prosecution version given during the investigation of the case. No strong evidence in defence was produced for diminishing the credibility of solid and cogent evidence furnished by the prosecution. In such state of affairs, the conclusion drawn by the Court below is well based, unimpeachable and not warranting any interference to the extent of Muhammad Maqsood convict-appellant and the prosecution has succeeded in bringing home guilt against all the accused-persons through unshakable, unimpeachable and confidence inspiring evidence.
The learned Counsel for the complainant-appellant also craved that the convict may be sentenced to death. The contention is devoid of force. Suffice to note that in the instant case no eyewitness is available and the prosecution to prove its version has produced circumstantial evidence. Therefore, keeping in view the facts and circumstances of the case, the life imprisonment under Section 302(b), APC awarded by the trial Court shall meet the ends of justice.
We cannot subscribe to the view of the learned trial Court that the prosecution failed to prove case against accused-respondents Abdul Qayyum and Gulfraz beyond any shadow of reasonable doubt. In this regard, the grounds made basis for their acquittal are weak, vague, artificial and flimsy. It has been abundantly proved on the record that all the accused-persons committed lurking house trespass by night with the intention of committing robbery and Vail' in furtherance of their common intention in dark hours of winter night. Their presence on the spot at relevant time is sufficient to involve them with the commission of offence charged with and they cannot be absolved from the liability on the ground' that no overt act was attributed to them or no stolen property was recovered at their instance. Similarly, the nature of motive of the occurrence is same and equal against all the accused-persons rather Abdul Qayyum, accused, being father of the convict would have been more responsible than his young son and would have acted with sobriety and serenity instead sharing the common intention with other accused-persons to commit a heinous crime. As they did not inflict any injury to the deceased; therefore, they are entitled to some leniency of the Court instead the capital punishment.
The crux of above discussion is that the prosecution has proved it case without any shadow of reasonable doubt against all the accused-persons but the trial Court fell in grave error while acquitting accused-respondents Abdul Qayyum and Gulfraz with the charge.
For the reasons listed above, we accept Appeal No, 21/2008 filed by Altaf Ahmad complainant, Abdul Qayyum and Gulfraz accused-respondents are convicted under Section 302(b), APC read with Sections 34 & 460, APC and sentenced to five years R.I each. The benefit of Section 382-B, Cr.P.0 shall be extended to them. The Appeal No, 20/2008 filed by Muhammad Maqsood convict fails, which is dismissed. Resultantly, the impugned judgment dated 10.7.2008 is maintained to the extent of Muhammad Maqsood, convict, in the manner indicated above. A copy of the judgment shall be annexed with the relevant file.