' SARDAR MUHAMMAD NAWAZ KHAN, J.--- This is a reference made by District Court of Criminal Jurisdiction, Muzaffarabad on account of divergent view expressed by the Honourable Members of the Court while delivering the judgment in the above-titled murder case.
2. A Case No,43 of 1986 for offences under sections 4/5 I.P.L. And 34, A.P.C. Was registered at Police Station Athmaqam on a report of the complainant Syed Muzaffar Hussain Shah son of Syed Nooran Shah resident of Challana Rayali on 24-7-1998. It was stated in the F.I.R. That Messrs Muhammad Bashir and Muhammad Nazir sons of Abdul Kareem Caste Trakhan resident Kalarian Naseri entered into an verbal agreement with the father of the complainant to construct his house. An amount of Rs,1,200 was taken in advance and it was agreed upon by the parties that both the aforesaid person's shall work on payment of Rs,70 per day to each. Both the aforesaid persons i,e, Muhammad Bashir and Muhammad Nazir constructed the first storey of the house and they were also under obligation to construct the 2nd story of the house but they discontinued the work by leaving the same as incomplete and started the construction work of the house of Karim Haider Shah. On 24-7-1998 at about 6 p.m. Both the abovementioned persons while they were on the way after releasing themselves from the work they met the father of the complainant Nooran Shah who inquired them as to why they had left the construction work of his house as incomplete and asked them to complete the work or return the money taken by them for the construction of the house.
On this, the aforesaid persons got enranged and Muhammad Bashir caught hold of the father of the complainant whereas Muhammad Nazir inflicted two stab wounds on chest and belly of the father of the complainant. Consequently, Nooran Shah the father of the complainant was injured badly and the assailants managed to run away from the spot. The injured person died on spot after a few while. The occurrence was witnessed, according to the report, by Manawar Shah brother of the complainant, Peer Hussain Shah son of Noor Haider Shah, Mir Haider Shah son of Nooran Shah (other than the deceased), Sadiq Hussain Shah and the complainant himself. The complainant rushed to a Military Post situated near the place of occurrence to manage the first aid to his injured father and according to the report three military persons including a Major, a Captain and a Subedar accompanied the complainant to the place of occurrence. The Military persons attempted to give first aid to the injured person by bandaging the wounds but in the meanwhile the injured succumbed to the injuries and died on spot. It was also stated in the report that the assailants had killed the father of the complainant on account of pre-concert.
3. The concerned police after registration of the case, investigated the incident of murder by proceeding to the place of occurrence. The statements of the complainant, Manwar Hussain Shah (sons of the deceased) Mir Haider Shah, Peer Hussain Shah and Syed Sadiq Hussain Shah (son-in- law of the deceased) were recorded as eye-witnesses, whereas the police also took into custody a pair of blood-stained Chappal/Slipper from the place of occurrence in presence of witnesses who according to the prosecution, were identified as that of accused Muhammad Nazir. The dead body of the deceased was referred to the hospital whereupon the concerned doctor conducted the postmortem and a autopsy report was also obtained and was made part of the file. The assailants were taken into custody and a knife as weapon of offence was also recovered at the instance of accused Muhammad Nazir, according to prosecution. Some blood-stained clay was also taken into possession by the police from the spot. The blood-stained Chappal, clay and clothes of the deceased were sent to Chemical Examiner and a report was also made the part of the file during investigation. The Investigating Officer found both the assailants as guilty and as such they were forwarded to face trial before District Court of Criminal Jurisdiction, Muzaffarabad.
' The trial Court after presentation of challan concluded the trial after due process of law and finally at the time of judgment a difference of opinion arose in between the Members of the Court. The learned Sessions Judge acquitted the accused by giving them the benefit of doubt whereas they were convicted by the learned District Qazi. The learned District Qazi awarded the sentence of Qisas to accused Muhammad Nazir whereas the other accused Muhammad Bashir was sentneced to life imprisonment. Hence this reference.
5. The learned counsel for the accused person, while supporting the order of the learned Sessions Judge, contended that the motive put forward by the prosecution for commission of murder was not proved and as such this sole ground was sufficient to acquit the accused persons. He further submitted that the eye-witnesses being close relatives of the deceased were not trustworthy and their statements were against human conduct. According to the learned counsel, the complainant, Manawar Hussain Shah and Mir Haider Shah were the real sons of the deceased whereas Sadiq Hussain Shah was son-in-law of the deceased. Peer Hussain Shah also belong to the same community to which the deceased belonged, the learned counsel argued. It was also the argument of the learned counsel that the circumstantial evidence in shape of post-mortem report and recovery of weapon of offence did not corroborate the version given in the F.I.R. The alleged blood-stained weapon of offence was not sent to Chemical Examiner and furthermore no Serologist Report was placed on record to show as to whether or not the pair of Chappal/Slipper was stained with humand blood, the learned counsel argued. The learned defence counsel also maintained that the injuries found on dead body were not possible with the alleged weapon of offence as those appeared to be inflicted by a square shape weapon.
' The learned counsel during his arguments referred the following authorities in support of his contention:-- ' PLD 1964 SC 710, PLD 1977 SC 16, PLD 1969 SC 127, 1991 ' PCr.LJ 740, 1990 PCr.LJ 176, 1993 SCMR 336, 1998 SCM R 1749 and 1998 SCM R 25.
6. On the contrary, the learned counsel representing the complainant and learned Assistant Advocate-General assailed the order of learned Sessions Judge and argued that the learned District Qazi had recorded the order of sentence in right direction and the learned Sessions Judge while passing his order fell in error. According to the learned counsel it was a daylight incidence witnessed by as many as five persons. The ocular evidence stood corroborated by the circumstantial evidence, the learned counsel maintained. The motive was also established through evidence and the trend of cross-examination was also supportive of the prosecution version, the learned ocunsel submitted. It was further contended that mere relationship of the wintesses was no ground to disbelieve their testimony if otherwise they were not found inimical to the accused party. Moreover, the statements of the inter-related witnesses were corroborated through the independent evidence of Peer Hussain Shah, Mir Haider Shah and Subedar Abdul Aziz. The time and the place of occurrence were not challenged by the defence and the statements of eye-witnesses were not against the human conduct, the learned counsel maintained. A case-law 1992 SCR 120-A was also cited by the learned counsel for the complainant and it was stressed to convict the accused persons in the light of the evidence.
7. We examined the entire evidence on record with care and caution in the length of the argument advanced at Bar.
8. The trial Court while proceeding with the case, recorded the statements of all the eye-witnesses coupled with the other relevant evidence collected by the prosecution during investigation. Two P.
Ws. Were given up and the statements of the rest of witnesses were recorded.
9. The learned defence counsel while arguing his case, mainly raised the following objections and requested this Court for honourable acquittal of the accused by upholding his view point.
(1) The alleged motive was not proved by the prosecution.
(2) The ocular evidence being interested and inter-related was not trustworthy and moreover their statements were against the probability.
(3) The post-mortem report did not corroborate the ocular testimony and recovery of weapon of offence.
(4) The injuries found on the person of the deceased were not possible by the alleged weapon of offence.
10. According to the learned defence counsel the F.I.R. In the instant case and the statements made by the complainant and other eye-witnesses were contradictory regarding the alleged motive behind the murder of the deceased. The point of motive will be considered later on and it was felt expeident to take up the other points on the basis of which the learned counsel argued to acquit the accused persons by giving them the benefit of doubt. It was contended by the learned counsel that the eye-witnesses being the real sons of the deceased and close relatives were not expected to act in the manner as indicated by the evidence on record. The eye-witnesses were standing at a close distance from the place of occurrence and, according to them, their father or a close relative was stabbed while they were witnessing the occurrence, according to the learned counsel. How it was possible on the part of blood relation not to interfere to rescue their father from the clutches of the assailants and furthermore, it was also against the human conduct to keep standing silently at the relevant time. Naturally, it was expected from the eye-witnesses to intervene the quarrel in order to save the deceased or at least to raise hue and cry but all the eye-witnesses, according to their depositions, neither rushed to the spot nor they raised any outcry when the deceased was being assailed by the culprits, the learned counsel_ submitted. The aforesaid argument of the learned counsel when examined in the light of the evidence on record finds no place. The F.I.R., according to settled principle of law, is simply an information for commission of an offence to move the concerned agency. It is not essential to give all the details regarding the commission of offence. The complainant was not expected to give all the details while lodging the F.I.R. It perhaps escaped the attention of the learned counsel to view or assess the mental condition of the complainant whose father was murdered at the relevant time. The complainant while making his statement before the Court did not contradict the version in the F.I.R. But he simply explained the background and happening during the occurrence. His evidence when seen in its true perspective does not allow this Court to uphold the view of the learned counsel.
11. The evidence of the prosecution witnesses is not found to be against the probability as contended by the learned counsel for the accused and opined by the learned Sessions Judge. The attack by the accused persons was so sudden and quick that it did not give and clause to the deceased or eyewitnesses to retaliate. The complainant while recording his statement before the trial Court at. Page 69 of the trial Court's file deposed as under:- {{URDU TEXT}} ' Another P.W. Peer Hussain Shah being eye-witness to the occurrence while recording his statement in the Court stated as follows at page 73 back of the trial Court's file:-- {{URDU TEXT}} This is an independent witness having no relationship with the complainant party and moreover no enmity or rivalry against the accused party was established. There is no reason to discredit his testimony. The prosecution also produced another eye-witness who was nominated in the F.I.R.
Namely Mir Haider Shah. This witness also has got no relationship with the deceased or any grudge against the accused persons. He while recording his statement in the trial Court deposed at page 82 back as under-- {{URDU TEXT}} ' The aforesaid witness also stated at page 85 as follows:- {{URDU TEXT}} ' Manawar Hussain Shah son of deceased also appeared as eye-witness to the occurrence and stated before the Court at page 88 as under:-- {{URDU TEXT}} ' The statement of this witness at pages 92 and 92 back is also of worth consideration which reads as follows:-{{URDU TEXT}} ' Sadiq Hussain Shah (son-in-law of the deceased) was also produced as eye-witness and he while recording his statement at page 99 stated as under:-- {{URDU TEXT}} Another person Subedar (retired) Abdul Aziz Khan who is completely an independent and impartial person also recorded his statement at page 123 of the trial Court's file and corroborated the statement of other eye-witnesses regarding the information by the complainant about the murder of his father to the military authorities. This witness testified the fact of outcry at place of occurrence. The statement reads as follows:- {{URDU TEXT}}
12. The above-referred portions of the statements of prosecution witnesses show that the attack by the accused party was so quick that it did not give any chance to raise hue and cry by the deceased or any intervention by the eye-witnesses. However, they rushed to the spot immediately and also outcried at the spot. The statement of Abdul Aziz particularly is very important while- deciding the question of probability in the instant case. The statements of eye-witnesses when read coupled with the statement of the aforesaid witness leave no room to argue that the behaviour of the eyewitnesses was against natural conduct. Moreover, post-mortem report reveals that the injury No,,2 sustained by the deceased was of such a nature which could not allow the deceased to raise hue and cry. Therefore, the argument of the learned counsel regarding the probability is devoid of force in the light of the evidence and it is nothing but a result of non- reading of evidence in its true perspective.
13. The learned counsel also argued that the injuries found on the person of the deceased were not possible by the alleged weapon of offence i,e, knife. According to him, the injuries Nos.1 and 2 were 1/2" x 1-1/2" in size and the same were not possible keeping in view the width and thickness of the edge of the knife. This is also result of misreading of evidence. The concerned doctor through post- mortem report Exh.P.K. Examined the injury No,1 as 1/2" x 1/2" c.m. And it was wrong to observe that the aforesaid injury was 1/2" x 1/2". However, the injury No,2 is shown to be of the size 1/2" x 1/2". This per our estimation, is the result of inadvertence. The size of injury No,2 when seen in the light of whole report appears to be the same as that of injury No,
1. Even if the size of both the injuries is accepted to be the same as argued by the learned counsel, the same cannot be allowed to sustain. The reason being that when a stab wound is caused on a living person, the injury after its infliction automatically opens and may result into a wound of different size. The observations of learned Sessions Judge as well as the objection of learned defence counsel regarding post- mortem report is factually wrong. The post-mortem report shows that the injuries inflicted on the body of the deceased were possible with he help of the alleged weapon of offence. It is wrong to say that the size of the injuries found on the dead body were square in shape. The fact of the matter is that injuries are 1/2 c.m. Even otherwise, the size of the injuries on a living person cannot be compared with the size of the weapon of offence for two reasons. Firstly the size of the injury depends upon the force with which it was inflicted and moreover the direction and mode of infliction of injury cannot be overlooked. Secondly the wound after its infliction automatically opens and does not remain the same as it was at the time of infliction of injury. Moreover, the knife allegedly recovered at the pointation of the accused Muhammad Nazir was referred to the concerned doctor to give opinion as to whether or not the injuries found on the dead body were possible by the knife. The doctor opined through his report Exh.P.O. That the injuries on the dead body were possible by the knife allegedly recovered at the instance of the accused Nazir. The report Exh.P.O. Goes unchallenged by the defence and no questions whatsoever were put to the doctor while he was in the witness-box. Therefore, this possibility cannot be ruled out in the instant case.
14. It is settled principle of law that the evidence of close relatives is acceptable unless some enmity or rivalry is shown to have existed between the witnesses and the accused party prior to the incidence. Mere relationship cannot form basis to discredit the testimony of such witnesses. Now- a-days deteriorating law and order situation in the society does not allow an independent witness to come forward and only the kiths and kins of the deceased being aggrieved persons can dare to appear as witness. The objection of the learned counsel pertaining to the motive behind the murder is also not sustainable for the reason that the same is not backed by some earthly reasons.
According to the learned counsel, the complainant and other eye-witness contradicted the version regarding the motive alleged in the F.I.R. While making their statements before the Court. There is nothing on record to show any other enmity, rivalry or grudge between the complainant and the accused party except a dispute over the construction of the house. It is correct that the details were not given while lodging the F.I.R. However, the simple mention of dispute regarding the construction of house suffices the matter. The complainant while making the statement before the Court did nothing but gave the details which acted in furtherance of commission of murder.
However, whether the deceased inquired them in the way or the assailants asked him to pay back Rs,48 is minor discrepancy which matters very little in the circumstances of this case. Even otherwise the murders are being committed on account of minor pretexts now-a-days. It has also been opined by the learned counsel that when the prosecution discloses a motive for commission of crime, it is necessary to prove the same. The prosecution has disclosed the motive in the F.I.R.
And the same was given during evidence before the Court with the difference that it was explained further. The motive is nothing but simply a guess and if not proved, it cannot result into acquittal of the accused persons especially when direct evidence is available. The motive is always best known to the assailant and it is he who knows well that what prompted him to commit crime. In the isntant case direct evidence is available and in presence of such evidence the failure to J prove the motive by the prosecution cannot alone form the basis to discredit the prosecution story.
15. It is also incorrect to say that out of eye-witnesses three persons are real sons of the deceased.
The real sons of the deceased are Muzafar Hussain and Manwar Hussain Shah only whereas Mir Haider Shah though his father's name is also Nooran Shah but he is another person not being the deceased. Even if it is accepted for the sake of the arguments that the evidence of the sons. Of deceased and son-in-law of the deceased is not trustworthy being the close relatives, the statements of other two eye-witnesses namely Mir Haider Shah and Peer Hussain Shah cannot be discarded as there is no reason to do SO.
16. All the eye-witnesses are in agreement on the point that Syed Muzaffar Hussain Shah the complainant immediately after occurrence went to the Military Post sitauted near the place of occurrence in order to provide first aid to the deceased and their statements stand corroborated by an independent witness namely Subedar Abdul Aziz. The aforesaid witness is completely an impartial witness and there is nothing on record to discredit his testimony. According to the statement of eye-witness Syed Munawar Hussain Shah P.W. After reaching the spot took the head of his deceased father in his lap and consequently, his hands were stained with blood. This fact stands admitted by the defence counsel during cross-examination. The relevant portion of evidence is reproduced as under at page '74 while cross-examining the P.W. Peer Hussain Shah:- {{URDU TEXT}}
17. A blood-stained Chappal/slipper taken into possession by the police after commission of murder was also identified by P.W. Manawar Hussain Shah as according to the statement of aforesaid witness accused Muhammad Nazir used to wear the same Chappal/slipper during the time when accused persons were working at their house.
18. The arguments of the defence that as per prosecution case an 'amount of Rs,1,200 was taken in advance to construct the house and per statement of P.W. Manawar Hussain Shah both the accused worked for 16-1/2 days at the rate of Rs,70 per day to each negates the version of outstanding amount against the accused. The evidence on record shows that the amount of Rs,1,200 were taken two years earlier by the father of the accused before starting the work. The prosecution case is that an amount of Rs,1,200 was taken in advance and it does not necessarily mean that no further money was taken during the continuance of work. The P.W. Munawar Hussain Shah during the cross-examination in response to a question by the defence stated the total period of work as mentioned earlier. Even otherwise the ambiguity, if any, cannot weight much in presence of observation regarding motive made by us in the earlier part of the judgment.
19. The accused are nominated in the F.I.R. Which was lodged without any delay and their role is very clear. The version given in the F.I.R. Stands corroborated by direct evidence especially the statements of Mir Haider Shah and Peer Hussain Shah whose purgation report is also positive and it cannot be disbelieved without sufficient reasons. The fact whether or not the eye-witnesses of the occurrence raised hue and cry stand explained through the evidence. Similarly the fact of rushing towards place of occurrence is also explained through the evidence on record. The statement of Subedar Abdul Aziz P.W. Also shows the fact of outcry at the commission of murder of the deceased. The immediate arrival of Munawar Hussain Shah is also admitted by the defence during cross-examination as indicated earlier.
20. The ocular evidence is corroborated by the circumstantial evidence in shape of autopsy report and recovery of weapon of offence at the instance of the accused Nazir. There existed no previous enmity or rivalry prior to commission of murder except a dispute over the construction of house.
Therefore, the evidence on record suggests declaring both the accused as guilty of offence with which they are charged in the instant case.
21. The case-law cited at Bar was also examined but it was found not relevant as the facts in the case are not identical with the facts of the cases referred by the learned counsel for the parties. It is settled principle of law 0 that the criminal cases are always decided in the light of their peculiar facts as the co-incidence of facts in crimincal matters is hardly possible.
22. The accused were charged with the alleged offence in 1986 and they remained in custody for couple of years. They have been facing trial for near about 13 years. A twinkle of hope to survive also arose when an order of acquittal was recorded in their favour by the learned Sessions Judge.
Therefore, we are not persuaded to award them the capital punishment. The accused Muhammad Nazir inflicted the fatal injury to the deceased whereas Muhammad Bashir accused facilitated the commission of murder. Thus, both the accused are sentenced to life imprisonment by extending them the benefit of section 382-B, Cr.P.C. As the incidence of murder pertains to year 1986 so the term of imprisonment shall be 14 years. Reference stands answered accordingly.