P L D 2002 Supreme Court 540 (PLP)

"Muhammad Ishtiaq deceased managed a Nikhanama and shown Mst. Sahira Yasmeen my daughter as his wife and gave birth to two children which were taken away by Mst.Resham Jan P.W. the mother of the deceased and later on denied the marriage. Independent witnesses Manzoor Hussain complainant, his son Aamer Manzoor and Muhammad Amin have not supported the prosecution case and refused to make a false statement, therefore, were given up by the prosecution. The only related witnesses namely Muhammad Mushtaq real brother of the deceased and Mst. Resham Jan mother of the deceased have appeared against me. Mst. Resham Jan was not named in the F.I.R. as an eye‑witness of the occurrence. Ishtiaq deceased was a man of bad character and some one killed him." Ghulam .Mujtaba, co‑accused of the appellant, also took somewhat similar stand while examined under section 342, Cr.P.C. Both of them did not make statements under section 340(2), Cr.P.C. The learned Additional Sessions Judge, Rawalpindi, after scanning the evidence brought on record by the parties, through his judgment dated 9‑7‑1996 convicted both the accused under sections 302(b)/34, P.P.C. and sentenced them to death. They were also directed to pay Rst1,00,000 each as compensation to the legal heirs of the deceased under section 544‑A, Cr.P.C. and in default to suffer six months' simple imprisonment each Both the convicts preferred Criminal Appeal No. 127 of 1996.in the Lahore High Court, Rawalpindi Bench, Rawalpindi, while Murder Reference No.223 of 1996 was sent by the learned trial Court for confirmation or otherwise of the death sentences imposed upon the appellant and his co‑convict Ghulam Mujtaba. Mst. Resham Jan, mother of the deceased Muhammad Ishtiaq, also filed Criminal Revision No.79 of 1996 praying for enhancement of the amount of compensation. A learned Division Bench of the Lahore High Court through its judgment dated 23‑11‑1999 dismissed the above appeal qua Ghulam Mustafa appellant and confirmed his death sentence as recorded by trial Court while the same in respect of convict Ghulam Mujtaba was accepted and his convictions and sentences were set aside. Aforesaid criminal revision filed by the mother of the deceased was dismissed and murder reference to the extent of Ghulam Mustafa appellant was answered in the affirmative. Hence these appeals with leave of the Court. Learned counsel appearing for the convict/appellant has argued the eye‑witnesses namely Raja Manzoor Hussain Janjua, his son Aamer Mazoor Janjua and‑the barber Muhammad Amin whose names were mentioned in the F.I.R. had not been examined and those examined namely Malik Mushtaq Ahmed (P.W.1) and Mst. Resham Jan (P.W.2) had not. at all seen the occurrence and, as such their testimony could riot be given any credence. The alleged ocular account is not in line with the medical evidence. The recovery of incriminating weapon cannot corroborate the prosecution case as the same was witnessed by Malik Mushtaq Ahmed (P.W.1.), real brother of the deceased. It has been further argued that deceased Muhammad Ishtiaq fabricatd a Nikahnama with Mst. Saira Yasmin, daughter of appellant Ghulam Mustafa, who gave birth to two children out of this wedlock and subsequently deceased's mother, Mst. Resham Jan (P.W.2) took away the children and denied the existence of any marriage. Lastly it has been argued that the column of brief facts of the case in the inquest report (Exh.PL) which was sent by the police alongwith dead body at the time of post‑mortem was kept blank which creates doubt on the veracity of the prosecution. version. Learned counsel, appearing for Mst. Resham Jan. mother of the deceased, has argued that the learned Division Bench of the Lahore High Court failed to appreciate the evidence in its true perspective and acquitted Ghulam Mujtaba co‑accused in spite of the fact that he was fully implicated by the eye‑witnesses which account was corroborated by the medical evidence. We have considered the contentions advanced by the learned counsel for the parties and have gone through the entire material placed on record with their assistance. We have noticed that this unfortunate incident had taken place on Chand Raat night preceding to Eid. The occurrence had taken place in a barber shop. Both the eye‑witnesses. were residing nearby hardly 10 yards away from the site of incident. Mst. Resham Jan had plausible reason for coming to the place of occurrence so as to call her deceased son Muhammad Ishtiaq for food. She had narrated the manner in which the accused caused injuries to her deceased son. Malik Muhammad Mushtaq, the other eye‑witness, fully corroborated her stance. They are the natural witnesses and their testimony is confidence‑inspiring. Their presence at the spot cannot be doubted. The argument of the learned counsel for the convict/appellant that three witnesses whose names were mentioned in the F.I.R. did not appear at the trial is not convincing in the facts of the present case. The complainant Raja.Manzoor Hussain Janjua and his son Aamer Manzoor Janjua lost every interest in the case with the death of Muhammad Ishtiaq who was engaged to Mst.Asia Sultana, daughter of the appellant/convict. They in the facts of the present case thought it advisable and proper to keep themselves away from the case so as to avoid the wrath of accused side who from the present case appear very desperate. The learned trial Judge had noted this aspect in the following terms: "So far as the complainant Raja Manzoor Hussain Janjua and his son, not favouring the prosecution in Court and their having denied to make statements is concerned, obviously the relationship of both revolved around the existence of Ishtiaq, with whom Mst.Asia Sultana was proposed in marriage. The chap being not available, both might have thought it to keep from the controversy and not to earn enmity with,those, as of the accused who had already gone desperate for allegedly killing a young man in a place of business, in presence of many in and out and the bazar area. It is a matter of common observation and everybody's knowledge and experience to all as we live in the same society, that with the decay of moral fibre, none dares to step forward to tell a truth and simultaneously for lack of security to the common mar at the hands of those concerned for administration of law and justice, being a witness in a case is some thing not normal and one expects many a things wrong to his own and his family members. It is, perhaps for the above said state of affairs that alongwith these two Rajas, Muhammad Amin the poor barber might not have thought safer by coming into the witness‑box. Their stepping aside is quite understandable, keeping in view the facts of the case and the way in which the accused carried the crime. " This Court has also noted such attitude of the common witnesses avoiding appearance in Court in cases of this nature in the case of Yaqoob Shah v. The State (PLD 1976 SC 53), which is to tile following effect:‑‑ all that we need say is that this brings to a focus the tragedy of the general apathy in our society and absence of sense of civic duty to the fellow beings. It is a frequent experience of criminal Courts that many a gruesome tragedy is enacted, with scores of on‑lookers around, yet the assassin is allowed to operate without any let or hindrance and is allowed to escape from the scene, with impunity. Not only that. These 'independent' on‑lookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisans. It is a pity that it is not realized that this callousness is not only cowardly but is also in violation of the Islamic Injunctions. Islam imposes a solemn duty upon its followers in unqualified terms to speak the truth, even if that were to conflict with their personal interest or the interest or their kith and kin." The recovery of incriminating weapon i.e. .30 bore pistol recovered from Ghulam Mustafa appellant wedded with the empties recovered from the spot. Simply for the reasons that it was witnessed by Malik Muhammad Mushtaq (P.W.1), real brother of deceased Muhammad Ishtiaq, the same r could not be brushed aside. Muhammad Ramzan, Investigating Officer (P.W.10), who effected the recovery of pistol on 26‑3‑1995 from appellant 6 Ghulam Mustafa, fully corroborated the same in his testimony. The report of the Forensic Science Laboratory (Exh.PB) indicates that the crime empties of 30 bore pistol marked C‑1 and C‑2 had been fired from the pistol which, according to the prosecution, was recovered from Ghulam Mustafa. Apart from it the medical evidence is completely in line with ocular version. The locale and the nature of injuries sustained by the deceased had been specify mentioned by the eye‑witnesses. The other plea raised by the learned counsel for the convict/appellant that since in the inquest report (Exh.PL) the relevant page containing brief history was kept blank, as such it was an unseen murder and the appellant and his co‑accused have been roped in it falsely, is devoid of any force, This plea on the face of it is without substance as no question whatsoever was put to the Investigating Officer in thisMregard who prepared the inquest report of the deceased. Even Dr.Zafar Manzoor (P.W.5), who conducted the autopsy on the dead body after receipt of said inquest report, was not asked any question respecting this blank space. The learned Division Bench of the Lahore High Court, while dilating on this issue, has stated as under:‑‑ "

12. So far as the inquest report Exh.PL is concerned, he submitted that the relevant page was never left blank, as had this been the position at the time of trial, both the Medical Officer (P.W.5) and Investigation Officer (P.W.10) must have been questioned on that score, that admittedly, none of them has been put a single question which fact clearly proves that said page has been to create some doubt in the prosecution version. In this view of the matter, taking stock of the ocular account supported by medical evidence and recovery of incriminating weapon, we are of the considered view that appellant Ghulam Mustafa committed a cold blooded murder of a young man on Chand Raat in a bazar in a very gruesome manner. He has not brought any convincing evidence worth consideration on record so as to take a lenient view in the matter. The story' put up by the defence that Nikahnama was fabricated by Muhammad Ishtiaq deceased and thereafter the same was denied and two children were born who' were subsequently taken forcibly by Mst. Reshman Jan have not been established on record. Had the children been taken away in the manner as stated by the learned counsel appearing for the appellant, there must have been some sort of litigation or police report available at any place? Keeping aforesaid features of the case in mind, we do not find any merit in Criminal Appeal No. 175 of 2000 filed by Ghulam Mustafa appellant', and dismiss the same. As far as acquittal of Ghulam Mujtaba, co‑accused, as argued by the learned counsel for Mst.Resham Jan is concerned, the same cannot be', interfered with in view of the evidence brought $ on record. The pistol' recovered at his instance did not tally with the crime empties taken into possession from the scene of occurrence. The learned Judges of the Lahore High Court had recorded the finding of acquittal against him after evaluating', the entire evidence in full depth. Resultantly, Criminal Appeal No. 176 of 2000 filed by Mst. Resham Jan having no force is also dismissed. N.H.Q./G‑102/S Appeals dismissed.