[Rawalpindi Bench, Rawalpindi]
Present: Sayyed Mazahar Ali Akbar Naqvi and Muhammad Tariq Abbasi, JJ.
MUHAMMAD WASEEM KHAN--Appellant
Crl. A. No. 641 of 2010, M.R. No. 77 of 2010, heard on 19.6.2014.
----Conviction can be based on evidence of a solitary eye-witness, if it is found truthful and natural and not interested in deceased or on any inimical terms with accused. [P. 915] A
1971 SCMR 530, PLD 1980 SC 225, 1969 SCMR 76, 2008 SCMR 917 & 2012 SCMR 1879, ref.
----Ss. 302/34--Conviction and sentence--Challenge to--Modification in sentence--Quantum of sentence--Medical evidence has contradicted ocular story because no such contradiction has either been pointed out or observed--It is a fact that complainant was real brother of deceased, but it should not be ignored that as stated above, he has established his presence at spot and witnessing of occurrence, therefore his mere relationship with deceased is not sufficient to discard his testimony, which otherwise is confidence inspiring--As about contention of counsel for appellant that best and natural evidence with prosecution was who although was cited as a witness, but given up, hence presumption would go against prosecution--In this regard, it is stated that above named lady was real mother of appellant and she after getting divorce from father of appellant had contracted marriage with deceased--When second husband of lady was also murdered, then surely she was left alone, hence not inclined to give evidence against her real son and as such prosecution had given her up--Therefore, above said contention could not be given any weight--On one hand, availability of appellant and full participation in alleged occurrence was established on record, whereas on other hand, above named DW-1 and DW-2 had tried to create benefit for appellant, through their above mentioned statements, which had rightly been rejected by trial Court--During arguments and also on perusal of record, it has been found that at time of commission of occurrence, appellant was 19 years of age--Above mentioned reasons, which had caused appellant to commit murder of deceased, coupled with his age, were sufficient to consider for premium to him, towards quantum of sentence. [Pp. 915 & 916] B, C, D, E & F
2010 SCMR 650, 1993 SCMR 155, 2005 SCMR 1054 & 2013 SCMR 782, ref.
Mr. Fakhar Hayat Awan, Advocate for Appellant.
Mirza Muhammad Usman, A.P.G. for State.
Raja Mehfooz Ali Satti, Advocate for Complainant.
Date of hearing: 19.6.2014.
Muhammad Tariq Abbasi, J.--This single judgment is intended to decide the above captioned Murder reference and the criminal Appeal as the both are outcome of single judgment dated 28.7.2010, passed by the learned Additional Sessions Judge, Rawalpindi.
2. Through the above mentioned judgment, in a criminal case registered through FIR No. 361 dated 16.5.2008 under Section 302/34 of PPC, at Police Station Civil Lines, Rawalpindi, towards commission of Qatl-i-Amd of Ibrar Hussain, the appellant has been convicted and sentenced to death, with compensation of Rs. 2,00,000/- payable to the regal heirs of the deceased, failing which to undergo 06 months S.I.
3. The facts are that Zahid Hussain, complainant (PW-5) had made a statement (Ex.PJ) before the Police, contending therein that he was serving in a printing press, situated at Rehmanabad, Murree Road, Rawalpindi; that on 16.5.2008, he alongwith his brother Ibrar Hussain (deceased) and sister-in-law (Bhabi) namely Mst. Gultaj Bibi came in the Court of Mr. Abdul Noor Nasir. Additional Sessions Judge, Rawalpindi, to appear in a case; that after attending the Court, when they were going back and reached near the chamber of Raja Shaukat Ali, Advocate, at about 10.00 a.m., suddenly M/s. Muhammad Waseem (appellant), Muhammad Shakeel and Muhammad Shabbir (co-accused since acquitted) attracted there; that Muhammad Shabbir and Muhammad Shakeel (co-accused since acquitted) raised a `Lalkara' that a taste to abduct Mst. Gultaj will be taught, whereupon Muhammad Waseem (appellant) pulled a knife (chhuri) from his dub and inflicted successive blows at Ibrar Hussain (deceased), which hit at his chest, abdomen and back; that Ibrar Hussain while becoming injured, fell down and the above named accused fled away; that Ibrar Hussain (deceased) was being shifted by the complainant and his sister-in-law (Bhabi) to the hospital, but he succumbed to the injuries. The motive narrated by the complainant was that against Ibrar Hussain (deceased) and Mst. Gultaj Bibi, a case of abduction was got lodged by Muhammad Shabbir etc. and that due to the said grudge, Muhammad Waseem etc. with common intention had murdered Ibrar Hussain. On the basis of the above said complaint, the FIR (Ex.PE) was chalked out. The case was investigated and finally the challan was submitted, which for trial reached in the Court of learned Additional Sessions Judge, Rawalpindi.
4. Muhammad Waseem (appellant) and his above named co-accused (since acquitted) were formally charge sheeted. They pleaded not guilty and claimed the trial, hence the following prosecution witnesses were summoned and recorded:--
PW-1 Muhammad Kashif Constable had got conducted the post-mortem examination of the dead body of lbrar Hussain (deceased). He had also produced the last worn clothes of the deceased (P-1, P-2 & P-3/1-2 before the Investigating Officer and attested the recovery memo. (Ex.PA), through which the said articles were taken into possession.
PW-2 Aamir Riaz had attested the memo. (Ex.PB), through which the parcel containing the blood-stained earth, collected from the spot was taken into possession by the IO,
PW-3 Muhammad Dawood had identified the dead body of Ibrar Hussain at the time of its post-mortem examination.
PW4 Bashir Ahmad Awan, Draftsman had drafted the scaled site-plans (Ex.PD and Ex.PD/1) of the spot and produced before the IO.
PW-5 Zahid Hussain was the complainant as well as eye-witness of the alleged occurrence, who during his statement had deposed in the same manner as stated in his `Fard Bian'/complaint (Ex.PJ). He had also attested the memo. (Ex.PF), through which blood-stained knife (Chhuri) got recovered by Muhammad Waseem (appellant) was taken into possession by the IO.
PW-6 Aamir Shahzad had attested the memo. (Ex.PF), through which the knife (Chhuri) recovered at the instance of Muhammad Waseem (appellant) was taken into possession by the IO.
PW-7 Muhammad Saeed, SI had chalked out the formal FIR (Ex.PE), correctly without any addition/omission.
PW-8 Dr. Abbas Malik had conducted the post-mortem examination of the dead body of Ibrar Hussain at District Headquarter Hospital, Rawalpindi and prepared the report (Ex.PG). During the said examination, as many as 13, inside wounds at different parts of the body of the deceased were noted. As per the doctor, the Injuries No. 1, 2, 4, 5, 8 & 9, which were caused by sharp edged weapon and anti-mortem in nature were the cause of death.
PW-9 Muhammad Kausar SI had investigated the case and carried on the proceedings and prepared the documents fully described in his statement.
5. During the trial, Mst. Gultaj Bibi and Muhammad Azam PWs as were given up being unnecessary and while tendering the reports Ex.PL and Ex.PM, the case for the prosecution was closed.
6. After the above mentioned proceedings, the appellant as well as his above named co-accused (since acquitted) were examined as required under Section 342 of Cr.P.C. The questions emerging from prosecution evidence were put to the appellant and he denied almost all such questions. In reply to question "Why this case against you and why the PWs have deposed against you?", the appellant had made the following statement:--
"I am innocent and we are falsely implicated in this case. Complainant Zahid Hussain has failed to prove his presence in the Court premises on the fateful day, with cogent and plausible evidence. Admittedly the complainant was called to become the complainant of this case by the I.O. from Kotli Sattian. The presence of complainant at the place of occurrence is belied by the prosecution evidence. Complainant admitted during his cross-examination that he volunteered himself to become complainant of this case only for the reason that the deceased was his real brother. Complainant Zahid Hussain otherwise admitted during the cross-examination that it was only Ibrar Hussain and Gultaj, who has visited the Court on the fateful day. The conduct of Zahid Hussain complainant and manner of the occurrence as narrated by prosecution witnesses prima facie suggest that it was an unseen occurrence and out of grudge and animosity, complainant has falsely nominated me, my father and my uncle as accused in this case. Complainant Zahid Hussain also admitted that he was aggrieved by the registration of FIR No 555 registered against Ibrar Hussain his real brother by my father. According to the story of the FIR Mst. Gultaj could be the most natural witness in this case who was mala fidely given up as unnecessary by the prosecution and so withheld the best evidence, as she was not ready to support the false prosecution story. The complainant was inimical towards me, my father and my uncle and falsely deposed against us due to enmity."
7. The appellant had opted to lead evidence in his defence, but refused to make statement under Section 340(2) of Cr.P.C.
8. Muhammad Zebaish and Umar Khattab, while appearing in defence of the appellant had made statements as DW-1 and DW-2 respectively.
9. After completing the above mentioned proceedings, the learned Trial Court had passed the impugned judgment, whereby acquitted Shakeel Ahmad and Muhammad Shabbir, co-accused and convicted the appellant in the above mentioned terms. consequently the murder reference and criminal appeal in hand.
10. The learned counsel for the appellant has argued that the complainant was not present at the spot, but called afterwards and made a false witness; that the conduct of the complainant being unnatural had also confirmed his unavailability at the spot; that the alleged motive was relating to the year 2002 and till 2008, no untoward incident between the parties had taken place, hence the alleged motive could not be termed to be the cause of the occurrence; that the medical evidence has contradicted the ocular story; that the statement of the only eye-witness namely Zahid Hussain (PW-5) being not supported and corroborated from any independent source could not be believed; that the alleged recovery of knife (chhuri) from a place which was accessible to everyone is unbelievable and that the prosecution case and the charge against the appellant was not proved and as such the learned Trial Court had erred in convicting and sentencing the appellant in the above mentioned terms, who is entitled for acquittal.
11. The learned Assistant prosecutor General assisted by Raja Mehfooz Ali Satti, Advocate for the complainant, while supporting the impugned judgment to be justified and demand of the situation has vehemently opposed the appeal.
12. Arguments of all the sides have been heard and the record has been perused.
13. In the complaint (Ex.PJ), the FIR (Ex.PE), as well as statement as PW-5, Zahid Hussain, complainant had narrated the motive, which resulted into commission of the occurrence, a criminal case of abduction got lodged by Muhammad Shabbir etc. against Ibrar Hussain (deceased) and Mst. Gultaj Bibi and that due to the said grudge, the murder of the deceased was committed. During the evidence, not only the complainant (PW-5) had affirmed the motive narrated by him in the complaint (Ex.PJ), but the defence had also got explained the same to the effect that Mst. Gultaj Bibi after getting divorce from Muhammad Shabbir Khan (co-accused since acquitted) had contracted marriage with Ibrar Hussain (deceased), whereupon the criminal case FIR No. 555 dated 19.9.2002 was registered under Section 16 of the offence of Zina (Enforcement of Hadood) Ordinance, 1979, against the deceased and the above named lady, at the complaint of Muhammad Shabbir (co-accused since acquitted). It has also been brought on the record that the said case was pending in the Court of the above named learned Additional Sessions Judge, Rawalpindi and on the date of the occurrence, the said case was fixed for hearing.
14. The learned counsel for the appellant, while declaring the above mentioned motive to be very remote, has contended that it could not be a cause of the alleged occurrence. The said objection has already been answered by the learned Trial Court with the following reasoning:--
"The learned counsel for the accused argued that it was only a remote motive and could not be believed as a reason for happening of the instant occurrence. In my view, some weight may be given to this argument but only to the extent of accused Shakeel Ahmad and Muhammad Shabbir. It is pertinent to mention here that Shakeel Ahmad accused is the step-brother of Muhammad Shabbir accused. But to my view, it was a very strong motive for the accused Waseem for committing the Qatl-i-Amd of deceased Ibrar Hussain who had solemnized marriage with his mother after her abduction and thus deprived the accused Waseem from the love and affection of his mother. Because when her mother left his father and her children, the accused Waseem was aged only 13 years at that time. Years passed and when he grew up and moved among the society and felt the disgrace which the abduction of her mother by the deceased had brought to the family, he would have developed a strong grudge in his heart to take revenge of the disgrace. He would certainly have been inflamed by listening of taunting of the society. The registration of a criminal case regarding the said abduction and its pendency in the Court at the time of occurrence is admitted. Therefore, it was a strong motive and the prosecution has successfully proved it."
15. The learned counsel for the appellant has failed to contradict the above mentioned findings made by the learned Trial Court regarding the motive. Therefore, it can safely be said that Muhammad Waseem (appellant) had a strong motive against the deceased for commission of the occurrence.
16. Although only Zahid, Hussain complainant (PW-5) had narrated the occurrence. It has been observed that he had satisfactorily and confidently brought on the record each and every aspect of the case, not only during his examination-in-chief, but also the cross-examination. The defence despite lengthy cross-examination had badly failed to shake the testimony of the above named sole witness, create any dint, or defect in the prosecution story or bring on the record any material favourable to the appellant.
17. In the light of the above type of evidence, of the above named sole witness, if any other corroboration has not come on the record, it has made no difference.
18. Conviction can be based on evidence of a solitary eye-witness, if it is found truthful and natural and not interested in deceased or on any inimical terms with accused. In this regard, reliance may be placed upon the cases reported as Muhammad Ashraf vs. State (1971 SCMR 530), Allah Bukhsh vs. Shamm and others (PLD 1980 SC 225), Mali vs. State (1969 SCMR 76), Farooq Khan vs. State (2008 SCMR 917). Not only in Pakistan, in the light of the above mentioned judgments, the superior Court of the country are of the above mentioned view, but even in India, the Courts have the similar view that even a single statement of an eye-witness is sufficient to convict an accused. In this regard a judgment reported as Taqdeer Samsuddin Shaikh vs. State of Gujrat (2012 SCMR 1879) can be referred.
19. The above named PW-5 not only during examination-in-chief has established his presence at the spot, but during cross-examination made by the defence, the availability of the above named witness at the spot has also been confirmed.
20. There is no force in the arguments of the learned counsel for the appellant that the medical evidence has contradicted the ocular story because no such contradiction has either been pointed out or observed.
21. It is a fact that the complainant is real brother of the deceased, but it should not be ignored that as stated above, he has established his presence at the spot and witnessing of the occurrence, therefore his mere relationship with the deceased is not sufficient to discard his testimony, which otherwise is confidence inspiring. In this regard, reference can be made to the case reported as Haji vs. State (2010 SCMR 650).
22. As about the contention of the learned counsel for the appellant that the best and natural evidence with the prosecution was Mst. Gultaj Bibi, who although was cited as a witness, but given up, hence the presumption would go against the prosecution. In this regard, it is stated that the above named lady was the real mother of Muhammad Waseem (appellant) and she after getting divorce from Muhammad Shabbir, the father of the appellant had contracted marriage with Ibrar Hussain (deceased). When the second husband of the lady was also murdered, then surely she was left alone, hence not inclined to give evidence against her real son and as such the prosecution had given her up. Therefore, the above said contention could not be given any weight.
23. On one hand, the availability of the appellant and full participation in the alleged occurrence was established on the record, whereas on the other hand, the above named DW-1 and DW-2 had tried to create benefit for the appellant, through their above mentioned statements, which had rightly been rejected by the learned Trial Court.
24. During the arguments and also on perusal of the record, it has been found that at the time of commission of the occurrence, the appellant was 19 years of age. The above mentioned reasons, which had caused the appellant to commit the murder of the deceased, coupled with his age, in our view, are sufficient to consider for premium to him, towards quantum of sentence. Reliance in this regard may be placed upon the cases reported as Ziaullah vs. The State (1993 SCMR 155), Ghulam Sarwar and others vs. Sajid Ullah and others (2005 SCMR 1054), and Muhammad Imran @ Asif vs. The State (2013 SCMR 782).po
25. Resultantly, the conviction awarded to Muhammad Waseem (appellant) by the learned Trial Court, through the impugned judgment is maintained, but his sentence is altered from death to the imprisonment for life. The compensation awarded to the appellant by the learned Trial Court and the sentence in its default is maintained. The appellant shall be entitled for the benefit of Section 382-8 of, Cr.P.C.
26. Consequently, with the above mentioned modification in the sentence of the appellant, the Criminal Appeal No. 641/2010 is dismissed. The Murder Reference No. 77/2010 is answered in negative and death sentence of Muhammad Waseem Khan (appellant) is not confirmed.
(A.S.) Appeal dismissed
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