SARDAR MUHAMMAD EJAZ KHAN, J.---The instant judgment will dispose of Criminal Appeal No.103/2017, filed by Waqas Abid and others, legal heirs of deceased for awarding death sentence as Qisas instead of Tazir to Sajid Hussain convict-appellant and for awarding punishment to Mst.
Robina Qadeer acquitted-respondent, Appeal No.114/2017, filed by Sajid Hussain, convict-appellant, for acquittal and Reference No. 99/2017 made by Additional District Court of Criminal Jurisdiction, Dadyal, for confirmation of death sentence awarded to Sajid Hussain, convict-appellant, originating from the impugned judgment dated 05.08.2017 passed by the learned Additional District Court of Criminal Jurisdiction, Dadyal, in case FIR No.90/2010 dated 01.06.2010 registered in offences under sections 302 and 34, A.P.C. at Police Station, Dadyal.
2. Facts of the prosecution case as unfolded by Muhammad Afzal, complainant, in FIR No.90/2010 are that he was present at his Petrol Pump Sultania, situated at Amb, meanwhile, Master Muhammad Ayub son of Abdullah and Abid Hussain came there and told him that Abid Hussain is running a business of air tickets, from whom, Sajid Hussain son of Muhammad Younas, purchased two air tickets for England and fare/amount of which is still outstanding so they are going to receive the aforesaid amount and asked him as well as Muhammad Shafique and Farooq Shahid, who were also present with the complainant at Petrol Pump, to go with them. Complainant told them that he would follow them in his vehicle. When Muhammad Ayub and Abid Hussain reached Garha Nawan near house of Muhammad Yousaf, which was under construction, then complainant vehicle was slightly behind the vehicle of deceased-persons. Meanwhile, Sajid Hussain, his father Muhammad Younas and a women were standing on the way. Sajid Hussain-accused stopped vehicle of deceased--persons and said that you have come to take money then Master Muhammad Ayub, who standing outside of the vehicle, told Younas that you called us for taking money of Abid. Meanwhile, Sajid Hussain, armed with pistol told that will, you receive the money or Abid? and opened straight fire with his pistol on Master Ayub, which hit him on his chest and he fell down. Meanwhile. Abid Hussain came out from vehicle and tried to run away. Accused-Sajid Hussain, also fired a pistol shot upon him and he fell down. Thereafter, Sajid Hussain further fired 2/3 more shots successively upon Abid Hussain, whereas Younas and women raised a lalkara that no one should go alive today. The occurrence was witnessed by Muhammad Farooq and Muhammad Shaifq. The motive behind the occurrence was stated to be a land dispute.
3. On this report, a case in offences under sections 302/34, A.P.C. was registered at Police Station Dadyal by Ansar Ali S.H.O. against the accused-persons. After completion of investigation, convict-appellant along with two other persons namely Muhammad Younas and Mst. Robina Qadeer, were challaned as provided under section 173, Cr.P.C., in offences under sections 302/34, 14-EHA and 13/20/65-AA, to face trial on 26.07.2010. At commencement of trial charge was framed against accused-persons to which they pleaded not guilty and claimed trial. During the trial, a report was submitted before the trial Court that one of the accused-persons, namely Muhammad Younas has died, therefore, proceeding against the said accused was abated as provided under law vide order dated 31.10.2015. In order to prove charge levelled against accused-persons, the prosecution produced as many as 11 witnesses whereas prosecution witnesses Nos.1 and 8 died before appearance into the witness box and prosecution witnesses Nos.6, 12, 15, 16 and 17 were given up by prosecution. After closing of prosecution evidence the convict-appellant and co- accused Mst. Robina Qadeer, were examined under section 342, Cr.P.C. on 19.05.2016. They denied the guilt of offence and claimed innocence rather they were involved falsely by the police in connivance with the complainant party. However, they have not got recorded their statements on oath in term of section 340(2), Cr.P.C. At the conclusion of trial, the Court below acquitted co- accused Mst. Robina Qadeer, respondent, and awarded sentence to Sajid Hussain, convict- appellant as under:- i. In offence under section 302(b), A.P.C., he was awarded death sentences as Tazeer on two counts. ii. In offence under section 13/20/65 AA, he was awarded three years simple imprisonment along with fine of Rs.10,000/-, in default of payment of fine he shall have to undergo three years further simple imprisonment. iii. In offences under section 14-EHA, he was awarded two years simple imprisonment. iv. Under section 544-A, Cr.P.C., he was ordered to pay compensation Rs. 10,00,000/- each to legal heirs of deceased-persons. v. The benefit of section 382-B, Cr.P.C. was extended in his favour.
4. Raja Inamullah Khan, the learned counsel for the legal heirs of deceased argued that FIR was promptly lodged without any delay. The learned counsel also maintained that weapon of offence pistol was recovered on the pointation of the convict appellant Sajid Hussain. He further maintained that the witnesses produced before the trial Court fully supported the version of the prosecution but despite lengthy cross-examination the defence failed to obtain any favourable result. The learned counsel emphasized that there was nothing on record whereby it can be assumed that the accused persons were falsely implicated in the commission of offence by leaving the real culprits. The learned counsel averred that the complainant had no reason to implicate the convict in a false case. The learned counsel finally submitted that the Court below while passing the impugned judgment rightly appreciated the evidence and convicted the appellant, however, committed serious illegality while awarding punishment under section 302(b), A.P.C. The learned counsel finally prayed that the convict-appellant may be awarded death sentence provided and section 302(a), A.P.C. a Qisas and contended that prosecution has also proved its case against co-accusedMst. Robina Qadeer so she may also be convicted under law.
The learned counsel in support of his contention, referred to and relied upon the following case law:-- i. [2010 PCr.LJ 1389]; ii. [2010 PCr.LJ 1027]; iii. [2016 PCr.LJ 114]; iv. [2016 PCr.LJ 491]; v. [2016 PCr.LJ 1645] and vi.. [2017 PCr.LJ 713].
5. Conversely, Mr. Riaz Naveed Butt, the learned counsel for convict-appellant argued that the Court below while convicting the appellant reached at wrong conclusion because the FIR has been lodged after a considerable delay and no reasons have whatsoever been explained about such delay and the occurrence was not witnessed by anybody and there was no independent eye- witness of the alleged occurrence. The learned counsel maintained that the statements of the PWs. are not reliable because they are related and interested witnesses. The learned counsel further contended that prosecution was bound to prove its case beyond any shadow of doubt but the prosecution has miserably failed to prove the same. The learned counsel argued that the recovery of weapon of offence was take and fabricated as it was not recovered on the pointation of accusedSajid Hussain. The learned counsel pleaded that the murder of deceased remains shrouded in mystery whereas the accused-appellant was made an scapegoat. The learned counsel also pointed out that there are a lot of contradictions in the statements of prosecution witnesses. The learned counsel further contended that the Court below arrived at wrong conclusion and has not considered the relevant circumstances involved in the case. It is settled principle of law that the benefit of slightest doubt has to be extended to the accused. The learned counsel argued with vehemence that Court below has committed grave illegality while awarding sentence and conviction, thus the impugned judgment to the extent of conviction recorded against convict- appellant may be set aside and by accepting appeal the appellant be acquitted of the charge.
The learned counsel in support of his contention, referred to and relied upon the following case law:- i. 1996 PCr.LJ 1522; ii. 2001 PCr.LJ 524; iii. PLD 2007 SC (AJ&K) 27; iv. 2009 SCR 71; v. 2009 SCR 88 and vi. 2014 SCR 1585.
6. Raja Sohail Shamim, the learned Assistant Advocate General appearing on behalf of the State fully owned the arguments advanced by the learned counsel for the complainant/legal heirs of deceased.
7. We have heard the learned counsel for parties and gone through the record made available along with impugned judgment with utmost care.
8. It reflects from bare reading of record that a case in offences under Sections 302/34, A.P.C. was registered at Police Station Dadyal, by Ansar Ali S.H.O. against the accused-persons namely Sajid Hussain, Muhammad Younas and Mst. Robina Qadeer. After registration of the case, Ansar Ali, S.H.O. police (P.W-18) went to the spot and secured blood-stained clay, vide recovery memos Exh. "PA", Exh. "PB" and empties of 30 bore Exh. "PC'; Exh. "PE". He also prepared injury sheet of deceased Muhammad Ayub, Exh. "PM", injury sheet of deceased Abid Hussain, Exh. "PN" as well as postmortem conducted by Dr. Nabil (P.W-10) who besides abovementioned proceedings, also took other steps for investigation of the case. Soon after the occurrence, S.I. Javaid (P.W-14) arrested convict-appellant, Sajid Hussain and his wife Mst. Robina Qadeer. After committing murder of Master Muhammad Ayub and Abid Hussain, convict-appellant, Sajid Hussain, put the dead bodies in the vehicle and shifted the vehicle from the place of occurrence to the place out of sight and on pointation of convict-appellant, Sajid Hussain, dead bodies lying in the vehicle were recovered vide recovery memo Exh. "PD". On pointation of convict-appellant, Sajid Hussain, pistol/crime weapon was also recovered on same day vide recovery memo Exh. "PM" in presence of Haji Abdul Rashid (P.W.-6) and Khadim Hussain (P.W.-7). During investigation, he got site plan Exh. "PZZ" and keynotes Exh. "PZZ" prepared by Abdul Basit, Patwari (P.W.-9) and also took into possession a copy of Khasra Girdawri Exh."PY". Dr. Nabeel (P. W-10) on 01.06.2010, conducted the postmortem of dead body of Master Muhammad Ayub and Abid Hussain.
9. According to the prosecution story, the occurrence took place on 01.06.2010 at 08:00 A.M. and FIR was registered on the same day at about 09:00 A.M. The convict-appellant is fully nominated by mentioning specific role in FIR. In the light of the story established by the prosecution we have gene through the evidence brought on record. Prosecution case mainly depends upon direct evidence i.e. prosecution witnesses Nos. 2 and 3 and these witnesses had got recorded their statements before the trial Court. A deep scrutiny of statements of witnesses shows that they made the statements in line with each other. Time, place of occurrence, manner of occurrence and statements of above-mentioned prosecution witnesses are in consonance with each other.
Prosecution witness No.2, Farooq Shahid, in his statement deposed that:- {{URDU TEXT}} Muhammad Shafiq, prosecution witness No.2 stated that:-- {{URDU TEXT}}
10. After going through the statements of the aforementioned eyewitnesses, it appears that they remained consistent, and made their statements in line with each other in spite of lengthy cross- examination.
11. A deep perusal of above-stated ocular version shows that eye-witnesses unanimously pointed out that convict-appellant, Sajjid Hussain, fired repeated shots with a pistol upon Master Muhammad Ayub and Abid Hussain, deceased. The defence failed to shake the confidence of witnesses regarding their presence at the place of occurrence. The versions narrated by the aforesaid two witnesses find corroboration from the postmortem report. In such like state of affairs, learned trial Court has rightly believed that the defence failed to substantiate any reason to suggest that these prosecution witnesses are falsely implicated the convict-appellant, Sajid Hussain.
12. The next question, which needs further deliberation, is as to whether the eye-witnesses are close relative of the deceased? It appears that the PW's are not only close relatives of deceased but also close relative of convict-Sajid Hussain, hence, this fact of the matter has not been denied during cross-examination. It is celebrated principle of criminal jurisprudence that mere relationship does not make a witness as an interested one and testimony of such witness cannot be brushed-aside on such ground. An interested witness is one who has a motive for falsely implicating an accused while in instant case, the P.W.-2 and P.W.-3 and other P.Ws. appear to have no such rivalry in order to implicate the convict-appellant, Sajid Hussain, in the alleged offence. It is, now, settled that testimony of the witnesses cannot be discarded merely on the ground of relationship. This argument of the learned counsel for the convict-appellant is hereby repelled.
13. During the autopsy, doctor concerned reported the following injuries on the dead body of Muhammad Ayub deceased caused by five fire-arm shot:- i. Entry 2cm away from nipple an entry mark of a bullet found and blood coming out. ii. No exit would observed. OPINION: - The death of above-mentioned occurred due to fire-arm injury due to heart and lung damage.
On same day (P.W-10) also conducted the postmortem of dead body of Abid Hussain and reported the following injuries by giving his opinion:- i. Entry:- left eye brow entry of a bullet found at burnt edges and clothes blood Exit:-right temporal bone hole of a bullet exit was observed right above right ear and blood coming out. ii. Entry found on 3rd and 4th intercostals space Exit: found on 2nd - 3rd intercostals space. iii. Entry on right side abdomen mid clavicular line exit: left side abdomen little below from entry. iv. Entry on left middle of thigh inner part exit: on back aspect of thigh little oblique eye.
OPINION: Death occur due to fire arm injury, cause of death is brain injury (injury No.1).
14. The police sent nine packets for opinion of forensic expert, which follow as under:-- i. Earth of Muhammad Ayub. ii. Earth of Abid Hussain. iii. Seat cover of vehicle. iv. Seat cover of car. v. Clothes of Master Muhammad Ayub. vi. Clothes of Abid Hussain. vii. Clothes and Khussa (of Sajid Hussain). viii. Currency note of one thousand rupees. ix. Currency of 50 Pound of England.
15. The chemical examiner after analysis of these nine articles vide its report dated 29.06.2010 reported as under:-- "The above articles are stained with blood. Pieces are sent to serologist for origin of blood and grouping."
16. That convict-appellant was arrested soon after the occurrence and on his pointation dead bodies lying in the vehicle were recovered vide recovery memos Exh."PD". When the prosecution witnesses fled away from the spot then convict-appellant, Sajid Hussain, put the dead bodies of deceased persons in the vehicle and shifted the same the spot to the place out of sight and tried to flee away. When the convict-appellant while putting the dead bodies in the vehicle blooded his clothes with blood stains of the deceased and soon after the arrest, on pointation of the convict- appellant dead bodies, blood stained clothes and vehicle were recovered in presence of witnesses.
It is relevant to mention here that the above-mentioned proceedings and statements of witnesses under section 161 of Cr.P.C. were recorded on the same day without any delay, hence, when all the proceedings were initiated soon after the occurrence. Therefore, it eliminates the possibility of consultation, fabrication and concoction.
17. The learned counsel forcefully argued that in the light of report of fire arm expert dated 22.02.2011, wherein, it has specifically been mentioned that the crime weapon/pistol is not in working condition but this argument of the learned counsel for convict-appellant carries no weight because it is well-settled principle of law that where a direct evidence to prove a fact is available on the face of record then expert evidence in circumstances has no legal value, hence, in presence of direct evidence such piece of evidence cannot be given much importance.
18. The argument of the learned counsel for the convict-appellant that there are major contradictions in the statements of prosecution witnesses carries no weight because contradiction means negation of version of the prosecution case rather mere discrepancies in the details of the facts do not amount to contradiction. No contradiction in the statements of P.Ws appears to have been pointed out or found from the perusal of their Court's statements.
19. It is apparent on the face of record that time and again notices were issued to Mst. Robina Qadeer, but she failed to appear before the Court, hence, it deems appropriate to decide the matter on merit after perusal of record. It is relevant to mention here that the learned trial Court rightly appreciated the evidence of P.Ws and acquitted the co-accused-Mst. Robina Qadeer of the charges levelled against her because the prosecution failed to substantiate its case through confidence inspiring evidence rather the case against her is highly doubtful and full of contradictions, hence, the trial Court was left with no option except to acquit the co-accused Mst.
Robina Qadeer of the allegations levelled against her.
20. It is also pertinent to mention here that after the acquittal, an accused enjoys double presumption of innocence and Courts are reluctant in order to make interference with acquittal order until and unless it is found perverse or illegal. This view is fortified from a case reported as Asia Bibi and 5 others v. Ghazanfar Ali and 3 others 2005 PCr.LJ 415 wherein, it was observed as under:-- "The acquittal carries double presumption of innocence. One is initial that till found guilty accused persons are innocent and second is that Court of law having jurisdiction records order of acquittal. In such circumstances this Court would interfere only if it is proved from the record that the order of acquittal is perverse and the reasons in support of the same are artificial and ridiculous."
Similar proposition has been resolved by the apex Court in a case titled Muhammad Saleem v.
Abid Hussain and 3 others [2014 YLR (SC AJ&K) 2538] wherein it has been held that:- "It is by now settled principle that to get an acquittal order converted into conviction, is a difficult job for the prosecution; it is like a liberated bird who had flown away towards the limitless space and free air, but now prosecution wants to get him back again into the cage. In the light of principle of law enunciated by superior courts of the country, an acquittal order can only be interfered with when it is proved that it has been delivered with foolish appreciation of evidence, with perverse actions and where the reasons adduced for the release of an accused where not acceptable to the mind of a prudent man."
21. Thus, we are of the unanimous view that the prosecution successfully proved its case against the convict-appellant, Sajid Husain, beyond any shadow of doubt. It is apt to state here that the prosecution has proved its case to the extent that convict-appellant, Sajid Hussain, committed murder of Master Muhammad Ayub and Abid Hussain, deceased on 06.10.2010. The prosecution case is manifestly proved by the evidence of two eye-witnesses i.e. P.W.-2 and P.W.-3. These witnesses had no malice to falsely implicate the accused with the commission of crime. Sufficient supporting and corroboratory evidence is also available in support of ocular version. The time, place of occurrence and presence of eye-witnesses as well as of the convict-appellant, has been amply proved. The medical evidence Exh. "PYY" and Exh. "PYYY", the recovery of blood stained clay Exh."PB", empties from the place of occurrence, the recovery of blood stained clothes of deceased and convict-appellant Exh. "PG", Exh. "PH", Exh. "PM", the recovery of crime weapon/pistol Exh. "PN" at the instance of convict-appellant and other incriminating evidence and material supports the prosecution story. The trial Court also conducted purgation of P.W.-2 and P.W.-3 vide its order dated 29.07.2017 who were found "Adil". The trial Court awarded two years simple imprisonment to the convict-appellant, Sajid Hussain, under section 14 EHA whereas this statutory provision relates to theft, hence, after perusal of prosecution evidence, the offence of theft is not attracted in the case in hand.
22. As far as the prosecution narrated two reasons of murder of deceased. On one hand, the prosecution specifically alleged that the motive behind the occurrence was dispute of land between the parties and on the other hand it was alleged that there was a dispute with regard to outstanding amount of tickets between the deceased Abid Hussain and convict-appellant, Sajid Hussain. After deep scrutiny of prosecution evidence, it can safely be concluded that there was no dispute regarding the land. In support of alleged motive, prosecution produced Shahid Farooq (P.W-2) who got recorded his statement on 24.04.2012, which is at page-9, has specifically deposed that there was no land dispute between the parties, whereas another P.W. namely Khadim Hussain, has also been produced by the prosecution with regard to the alleged motive. It is relevant to mention here that Khadim Hussain (P.W-7) is also marginal witness of recovery memos of Exh. "PM" and Exh."PN", which were prepared on 01.06.2010 meaning thereby that this witness appeared before the investigating agency but he never uttered a single word with regard to alleged motive. However, later on he appeared before the investigating officer and stated that 2/3 days before the occurrence, an altercation took place between convict-appellant, Sajid Hussain and Master Muhammad Ayub, deceased with the exchange of some bitter words on the dispute of land.
23. The second dispute was alleged pertaining to outstanding amount of tickets but after perusal of whole evidence it shows that no tangible evidence has been brought on record whereby it can be established that outstanding amount of tickets was matter in issue between the parties. It is relevant to mention here that no evidence has been brought on record that deceased Abid Hussain, was running a business of air ticketing, therefore, the motive set up by the prosecution is confusing, weak and ambiguous. It appears that prosecution had suppressed material facts regarding the motive which led to the occurrence. It is, now, well-settled principle of law that once prosecution alleges the motive and fails to prove during the trial, the same can be taken as a mitigating circumstance while deciding the quantum of sentence of a convict. Reliance can be placed upon a case titled Shabbir Ahmed v. The State and another 1997 PCr.LJ 1539 wherein, it has been opined as under:- "We may observe that it was not laid down if a motive set up by a prosecution is not proved death sentence should not be awarded. In fact, as already noted, it was clearly laid down that motive was not a sine qua non for proving the offence of murder."
Reliance can also be placed upon a case titled Ali Bux and others v. The State [2018 SCM R 354] in which it has been opined as under:- "The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on a capital charge."
24. Another important aspect of the prosecution case is that the complainant did not enter into the witness box before his death. Record shows that statement of accused-persons were recorded under section 265-D, Cr.P.C. on 31.12.2010. All the accused-persons denied the alleged allegations and claimed trial. It reflects from the record that on the same day, the learned trial Court issued a notice to the complainant for recording his evidence. Time and again he was summoned but he did not enter into the witness box. We have also examined the notices issued to complainant, Muhammad Afzal (P.-W-1), which are four in number issued in different dates and are placed on record as (sic). On the said notices process server reported that complainant has gone to Rawalpindi, Mirpur and Multan on account of his personal exigency. Lastly, a report was submitted before the trial Court that complainant has died on 24.04.2012. Record shows that P.W.-1 did not enter into the witness box during the period of sixteen months of trial. Prosecution also failed to substantiate any reason for his non-appearance into the witness box in support of cornerstone of prosecution case.
25. On the above premises of the reasoning, Sajid Hussain, appellant is found guilty of the offence of murder of Master Muhammad Ayub, and Abid Hussain, deceased. At the same time we are convinced that motive alleged by the prosecution remains shrouded' in 'mystery and non- appearance of complainant Muhammad Afzal in witness box, a case of mitigation is made out.
Keeping in view the facts, surrounding circumstances and details of the case, we are of the view that extreme penalty of law should not be imposed upon the convict-appellant, Sajid Hussain. In our opinion, the ends of justice will sufficiently be served, if we convert the death sentence into imprisonment for life and we ordered accordingly. The benefit of section 382(b), Cr.P.C. is extended to convict-appellant.
26. The case law cited by the learned counsel from both sides does not need any analytical survey because of the distinguishable facts.
27. The nutshell of the above discussion is that we partly accept the appeal of convict-appellant and convert the death sentence into life imprisonment under section 302(b), A.P.C. while other sentences except 14-EHA are maintained. Resultantly, Murder Reference No.99 of 2017 is answered in negative while Appeal No. 103 of 2017 filed by the legal heirs of deceased stands dismissed. A copy of this judgment shall be annexed along with other relevant files.