ABID ALI and 2 others vs THE STATE

' TARIQ PERVEZ KHAN, J.---This appeal by leave of the Court is directed against the judgment/order dated 15-5-2010 passed by Lahore High Court, Lahore in Criminal Appeal No, 146-J of 2002 and Murder Reference No, 481 of 2002.

2. Briefly stating relevant facts of the case are that the appellants along with other co-accused were named in a case F.I.R. No, 99, dated 2-1-2008 registered at Police Station Aimanabad, Gujranwala under sections 302, 148, 149, 379 and 109, P.P.C. Upon the complaint of Liaqat Ali complainant. It was alleged in the complaint that on 1-10-1999 the complainant Liaqat Ali went to meet his maternal uncle Muhammad kafique and brother-in-law Muhammad Azam (deceased) in Mohallah Shahab Aimanabad and from there, they went to the Dera of Muhammad Azam along with Muhammad Javed and Haji Faqir Muhammad for the purpose of cultivating Shaftal in their agricultural land with tractor; that Muhammad Azam deceased was lying on a cot in the Dera; the complainant and other P.Ws. Were present at the spot whereas Javed P.W. Was cultivating the land with tractor; at about 3-00 p.m. Muhammad Munir, Muhammad Shabbir and Abid (appellants) armed with Churras along with Sajid and Jamshed and two unknown accused armed with fire- arms came at the Dera of Muhammad Azam deceased; Sajid and Jamshed accused remained on Same-Nala with their respective weapons while Muhammad Munir, Muhammad Shabbir and Abid accused started inflicting Churra blows on different parts of the body of Muhammad Azam thereafter they also took away Motorcycle No,5730/LXG CD-70, licensed pistol, imported Rado watch, gold chain of wrist and also gold chain of neck belonging to the deceased. Being empty handed and due to fear of accused the complainant and others could not interfere during the occurrence.

3. Motive behind the occurrence was stated to be that about four years prior to the occurrence Asif son of Khushi Muhammad Dogar was murdered and a case against Muhammad Azam deceased was registered along with other persons and that due to that grudge the accused committed the murder of deceased.

4. After registration of the case and upon completion of usual investigation, the appellants along with co-accused were sent up to face trial before the trial Court. Charge was accordingly framed to which they did not plead guilty and claimed trial. During the course of trial the prosecution examined as many as 20 witnesses to prove accusation against the accused persons. The appellants also got recorded their statements under section 342, Cr.P.C. Wherein they denied the allegations levelled against them. However, neither they appeared as their own witness under section 340(2), Cr.P.C. Nor they produced any defence witness to rebut the prosecution evidence.

5. Upon conclusion of the trial, the learned Additional Sessions Judge Gujranwala vide judgment dated 15-1-2002 acquitted Jamshed, Sajid and Shahab-ud-Din co-accused of the appellants from all the charges whereas convicted the appellants under section 302(b), P.P.C. And sentenced them to death with direction to pay Rs,100,000 each to the LRs of the deceased or in default to undergo six months' R.I. They were also convicted under section 379, P.P.C. And sentenced to`2 years' R.I.

6. Feeling aggrieved from the judgment of their conviction/ sentence, the appellants approached the learned Lahore High Court, Lahore by filing Criminal Appeal No, 146-J of 2002. Similarly a Murder Reference No,481 of 2002 was also sent by the Trial Court for confirmation or otherwise of the death sentence of the appellants.

7. The Criminal Appeal along with the Murder Reference was heard by a learned Division Bench of Lahore High Court, Lahore, who by means of impugned judgment dated 15-5-2008 dismissed the appeal filed by the appellants and confirmed the death sentence awarded to them by the Trial Court. Hence this appeal by leave of the Court.

8. Learned counsel appearing for the appellants has argued that two witnesses namely Liaqat Ali (P. W.16) and Muhammad Javaid (P. W.15), who claimed to be the eye-witnesses of the occurrence were not present at the scene of crime and they have given evidence in favour of the prosecution because of their close relationship with the deceased Muhammad Azam; and in case of Muhammad Javed P.W., he because of his connection with the deceased Muhammad Azam as he had been accused in number of cases along with him. His submission is that they are interested witnesses and partisan.

' Learned counsel has further submitted that the statements of P.W. Liaqat Ali and P.W. Muhammad Javed are belied by the site plan because according to the two witnesses occurrence took place when the deceased Muhammad Azam was lying on a cot in his Dera whereas according to site plan and the evidence of P.W. Muhammad Shabbir Khan S.-I. (P.W. 17) dead body of the deceased was found at point number (b) which is not in the Dera but in the fields.

' It is next argued that if the two eye-witnesses named above and Haji Faqir Muhammad P.W. (not produced) were present at the scene of crime they would have reacted at least by raising hue and cry if physically it was not possible for them to rescue the deceased who was under attack by the three persons who were giving him Chhuri blows.

' Learned counsel has also challenged their presence on the scene of crime on the ground that neither of the two witnesses are residents of the village to which the deceased belongs because the place of ordinary residence of Liaqat Ali (P. W.16) is either at Lahore or his village Maaju Chak which is at some 30 miles away from the scene of crime whereas the residence of Muhammad Javed (P. W.15) is about two kilometers away from the village of the deceased.

' Learned counsel for the appellants has also challenged the various recoveries effected allegedly on the pointation of the three accused/appellants including the recovery of Chhuris and the recovery of Honda Motorcycle belonging to the deceased as well as recovery of two gold chains and a wrist watch. His submission was that to support the recoveries the prosecution examined Abdul Qayyum (P.W.10) and Amjad Ali (P.W.11); both are related to the deceased and are related inter se. Their evidence has also been challenged by the learned counsel on the ground that they were not the inhabitants of the place wherefrom the alleged recoveries were made much less they were not the notables of the area.

' Learned counsel further argued that occurrence took place on 1-10-1999 and some of the recoveries were effected on 9-11-1999 while recovery from Muhammad Shabbir appellant was allegedly made on 24-1-2001 although he was arrested on 16-1-2001, therefore, all the recoveries are belatedly made and appears to be concocted one.

' Learned counsel, however, argued that if the evidence of recoveries is believed even then in absence of reliable ocular account, mere recoveries of certain articles belonging to the deceased would not be sufficient to legally justify the conviction of the appellants on the charge of murder.

9. In view of his above submissions learned counsel has strenuously argued that the conviction/sentence recorded against the appellants may be set aside and they be acquitted of the charge.

10. Learned counsel appearing for the complainant and the learned Additional Prosecutor-General have supported the judgment of conviction/sentence by arguing that all the three appellants were related inter se because appellant Muhammad Munir and Muhammad Shabbir are brothers inter se while Abid Ali is their nephew. Their joining hand in the commission of crime in the backdrop of motive is natural. They argued that motive for the crime was that four years prior to the occurrence, Muhammad Asif nephew of the accused was killed and for his murder deceased Muhammad Azam and others were charged, therefore, the accused appellants had a motive to kill the deceased in order to revenge the murder of Muhammad Asif.

' They argued that presence of Liaqat Ali P.W. At the scene of crime is not unnatural because as stated by him he had come to the house of his maternal uncle and the deceased Muhammad Azam was his maternal cousin as well as brother-in-law as the sister of Liaqat Ali P.W. Was married to the deceased and though they are inter se related but their presence at the spot is natural.

' About the presence of Muhammad Javed-P.W. It is argued by the learned counsel for the complainant that he is not related to the deceased and his services were procured for ploughing the fields belonging to the deceased and he had come to the spot along with his tractor in order to plough the field. They further argued that there were as many as 40 stab wounds on the person of the deceased which would commensurate with the number of accused charged.

' Regarding the recovered articles belonging to the deceased, allegedly taken by the accused/appellants at the time of commission of crime and the recoveries of three Chhuris, one each from each of the appellants were said to be strong corroborative evidence supporting the statements of P. Ws. Liaqat Ali and Muhammad Javed.

11. We have carefully gone through the entire evidence thoroughly and considered the submissions made at the bar before us in light of the same.

12. Occurrence in this case had taken place on 1-10-1999 at about 3-00 p.m. Which was reported by Liaqat Ali (P.W.16) to Muhammad Shabbir Khan S.-I. (P.W.17) at about 4-10 p.m. It is admitted by P.W.

Liaqat Ali before Muhammad Shabbir Khan S.-I. (P.W.17) that report was made when the two met not in Police Station but when Muhammad Shabbir Khan S.-I. (P.W.17) was on his routine patrol duty.

13. We have to first deal with the ocular account as relied upon by the two Courts below and the learned counsel for the complainant as well as the learned Additional Prosecutor-General Punjab.

14. The complainant in this case is Liaqat Ali (P.W.16) and his place of residence is given as Maaju Chak. According to his statement he along with the deceased Muhammad Azam went to the Dera of deceased Muhammad Azam when P.W. Muhammad Javed came there on his tractor; in the meantime Haji Faqir Muhammad also arrived there. No sooner P.W. Muhammad Javed started sloughing the field by his tractor, deceased Muhammad Azam went to his Dera and was lying on the cot when the three accused/appellants who were armed with Chhuris came to the spot and started giving Chhuri blows upon the person of the deceased whereas the acquitted accused Jamshed and Sajid and two other unknown assailants, who were armed with firearms remained standing at the distance. It was argued before us by the learned counsel for the appellants that if the deceased was lying on the cot when he was attacked by the assailants then the cot on which he was lying should have stained with blood but no cot has been taken into possession by the Investigation Officer and in fact the Investigation Officer has taken into possession the blood- stained earth (Exh. PR) from the fields and not from any room. This witness i,e, Liaqat Ali (P. W.16) has changed his version of visiting the Dera of deceased by stating that he left his house in order to go to the Dera of deceased Muhammad Azam to sow the crop and he also took Muhammad Javed P.W. Whereas in his examination-in-chief he stated that Muhammad Javed P.W. Came to the spot afterwards. He further admitted that he and other P. Ws. Remained sitting on watt (banna) during which period the accused were inflicting Chhuri blows to the deceased. This stance on his part is unnatural being close relative of the deceased Muhammad Azam. This witness himself is young man of 29 years of age. It was expected of him that he should have tried to rescue the deceased who was under attack and if it was not physically possible for him to stop them, he could have at least raised some hue and cry or could have asked the accused not to give blows to the deceased. He and Muhammad Javed-P.W. Remained silent spectators throughout the course of occurrence which is unbelievable human behaviour. That too not in Police Station which was approximately 2/3 kilometers from the spot.

15. It has also come in the evidence of Liaqat Ali-P.W. That after five minutes of the occurrence he left for the Police Station and met the Police at a distance of 1-1/2 kilometer. If his such version is accepted then report should have been made very promptly and not with the delay of an hour and 10 minutes. That too not in P.S. Which was approximately 2/3 kilometers away from the spot.

16. P.W. Liaqat Ali has admitted in his cross-examination that in the murder case of Muhammad Asif the deceased Muhammad Azam was charged so was Ijaz brother of Muhammad Javed (P.W.15), thus, Muhammad Javed P.W. Was also having inimical relations as against the present accused/appellants.

17. One common feature admitted by P.W. Muhammad Javed and P.W. Liaqat Ali was that they both accepted that it was the first occasion when these two P. Ws. Had visited the Dera of deceased Muhammad Azam and they along with P.W. Haji Faqir Muhammad (not produced) were jointly present at the Dera of deceased Muhammad Azam. If this is so then both of them would be termed as typical chance witnesses and also the witnesses who are interested in the case of the prosecution.

18. When we refer to the statement of P.W. Muhammad Javed (P.W.15) he categorically admitted that deceased Muhammad Azam was given Chhuri blows by the three appellants when he was lying on the cot, the same argument will apply against him as in the case of Liaqat All (P.W.16) that no cot was recovered by the police which has reached the spot/place of occurrence along with the complainant when the dead body was still lying on t'he spot; and blood was taken from the ground which also belies the testimony of Muhammad Javed (P.W.15). His presence at the spot was justified by stating that he had come with his tractor to plough the fields but the Investigating Officer when asked, admitted that no tractor was produced before him nor he has seen any freshly plough fields. If this being so, it would react on the presence of P.W. Muhammad Javed. He also admitted that his brother Ijaz was co-accused of Muhammad Azam deceased for the murder of Muhammad Asif which has become motive for the crime. If we compare the statement given by him in cross-examination that the cot on which the deceased was lying was not stained with blood with the statement as given in examination-inchief that the deceased was lying on the cot when he was given Chhuri blows, it would cause a serious doubt in his testimony for the reason that if someone lying on the cot is attacked by three Chhuris, the cot must have got blood on it. He stated voluntarily that after the first blow received by the deceased stood up from the cot. This voluntary statement in fact is a dishonest improvement on the part of P.W. Muhammad Javed to bring his testimony in line with the rest of the prosecution evidence. He also admitted that it was for the first time that he along with P.W. Liaqat Ali and P.W. Haji Faqir Muhammad has visited the Dera of deceased jointly. In the background of enmity where his brother was charged for the murder of Muhammad Asif, he should have been also the victim of attack if he was present there because the appellants would have not spare him by not attacking him as his brother was similarly and equally involved for murder of Muhammad Asif as was Muhammad Azam deceased.

19. We have thoroughly discussed the statements of two eyewitnesses claiming to be present at the scene of crime but they on their own admissions were chance witnesses and have admitted their enmity with the appellants. Both these witnesses could not reasonably explain their presence with the deceased Muhammad Azam rather their conduct runs against the natural behaviour of normal human, therefore, their testimonies appears to be unbelievable in the circumstances of the case.

They are also belied by the site plan wherein blood was taken up from the ground and neither any cot having stained with blood was found at the spot by the Investigation Officer nor the same was produced before him.

20. The two courts below have held that P.W. Muhammad Javed is not dishonest witness. We could not agree with such findings of two Courts below on this issue because it has been admitted by this P. Ws. In cross-examination that his brother Ijaz was charged along with deceased Muhammad Azam for the murder of Muhammad Asif, therefore, he will be on inimical terms with the accused/appellants. Another aspect as we have considered is that he is a partisan witness because of his involvement in number of criminal cases wherein he was co-accused with deceased Muhammad Azam.

21. To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement.

22. As a rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity but quality of the evidence. It is not that who is giving the evidence and making statement; what is relevant is what statement has been given. It is not the person but the statement of that person which is to be seen and adjudged.

23. We for the above reasons are firmed to believe that the two eyewitnesses who claimed to be present at the scene of crime were not present there and their testimonies are not believable.

24. Having held that two eye-witnesses have not seen the crime as they were not present, now we refer to the evidence of recoveries of articles belonging to the deceased and the recoveries of crime weapons i,e, Chhuris allegedly made during investigation. Although where ocular account has been disbelieved the recovered articles which are carrying corroborative value cannot substantiate the charge against the appellants because in absence of direct evidence, corroborative evidence by itself cannot bring home charge of murder against the appellants.

25. Be that as it may, in order to prove the recovery of three crime Chhuris and the recovery of articles belonging to the deceased, which were allegedly taken away by the accused-appellants after they had stabbed the deceased Muhammad Azam, prosecution examined three witnesses; they are Abdul Qayyum (P.W.10), Amjad Ali (P.W.11) and Muhammad Asif (P.W.12).

' P.W. Abdul Qayyum is produced to prove the recovery of Chhuri from Muhammad Munir- appellant and wrist gold chain recovered on 19-11-1999. He is also witness to the recovery of crime Chhuri from Abid Ali and on the pointation of Abid Ali recovery of gold chain. This witness is aunt's son of Muhammad Javed (P.W.15) about whom we have already held that he is not only interested, partisan but also inimical witness towards the appellants.

' Amjad Ali (P.W.11) was produced to prove the recovery of ID card belonging to Muhammad Munir- appellant on 14-10-1999 but this card was allegedly produced by one Imtiaz brother of the deceased whereas said Imtiaz himself was not produced at the trial. He is also witness to the recovery of pistol of .38 bore found on the person of Muhammad Munir-appellant on 9-11-1999 who along with Abid Ali appellant was riding motorcycle belonging to the deceased. This witness is neither witness of the locality nor notable of the area and is maternal cousin of deceased Muhammad Azam.

' Next and the last witness regarding the recovery is Muhammad Asif (P.W.12), who was produced to prove the recovery of Chhuri on 24-1-2001 on pointation by Muhammad Shabbir-appellant and also wrist watch allegedly belonging to the deceased Muhammad Azam. This witness is real brother of Amjad Ali (P.W.11).

26. All the three recovery witnesses are interested and related inter se; they are not witnesses of the locality wherefrom the alleged recoveries were effected. Neither of them could give any reasonable explanation about their presence and association with the police regarding recoveries. Even if we look in depth the prosecution story as stated by these two eye-witnesses that after causing Chhuri blows to the deceased Muhammad Azam, three appellants have taken away the articles mentioned hereinabove, it appears to be unreasonable. This was the case of murder because of personal motive i,e, since deceased was charged for the murder of Muhammad Asif, who was closely related to the present appellants; if the accused/appellants were to commit the crime, that should have been the crime of murder but not for the commission of offence of robbery, dacoity or the offence of Haraba. Even if it is assumed for the sake of arguments that after commission of crime above articles were taken away by the appellants, the question would arise as to why articles shall be kept and preserved by them and two appellants namely Abid Ali and Muhammad Munir would be riding the motorcycle duly registered as 5730-LXG allegedly taken away by them after the commission of crime and would be moving around in the same city.

27. In view of above discussion no evidentiary value can be attached to the alleged recoveries.

Above are the reasons in support of our short order dated 1-11-2010 whereby we have ordered that "the appeal is allowed, the conviction and sentence of the appellants are set aside; they are acquitted of the charge framed against them and shall be released forthwith, if not required in any other case."