2010 PLP 1879 (MLD)

MANZOOR AHMAD MALIK, J.

This judgment shall dispose of Criminal Appeal No.391-J of 2003 filed on behalf of appellants (i) Intizar Ahmad alias Tahiri, (ii) Ishtiaq Ahmad; and (iii) Ilyas Ahmad; Criminal Revision No.852 of 2003 filed for enhancement of amount of compensation awarded by the learned trial Court to all the three above mentioned appellants and Murder Reference No.616 of 2003 sent by the learned trial Court for confirmation or otherwise of the Sentences of death awarded to all the three appellants, as all these three matters arise out of the same judgment dated 28-6-2003 passed by the learned Additional Sessions Judge, Gujranwala, 'whereby, appellants were convicted for the murders of Nawaz, Siddique and Ghulam Murtaza under sections 302/149, P.P.C. and sentenced to death each on three counts with a further direction to pay a compensation of Rs.1,00,000 each on three counts as provided under section 544-A, Cr.P.C. to the legal heirs of the deceased in default whereof to further undergo SI for six months each on each count. Appellants were further convicted under sections 324/149, P.P.C. for causing injuries to Muhammad Asghar and sentenced to ten years' R.I. each. However, benefit of doubt was extended to Mushtaq, Salman and Ikhlaq, co-accused of the appellant, by way of acquittal from the charges levelled against them. Two co- accused of the appellants, namely, Amjad Saeed and Farooq were declared Proclaimed Offenders.

2. Brief facts of the case, as given by P.W.10 Khurshid Ahmad (complainant) in the F.I.R. (Exh.PE/1) are that his paternal nephew, namely, Ghulam Mustafa, was murdered by Iftikhar alias Khari, during the previous Ramazan. According to the complainant on the fateful day, he along with Muhammad Asghar, Muhammad Siddique, Ghulam Murtaza, Muhammad Nawaz and Muhammad Ali sat in a car as they had to appear before the Court and explained that he along with Muhammad Ali were on the front seat, the said Muhammad Ali was driving the car while Ghulam Murtaza, Muhammad Siddique and Muhammad Nawaz were on the rear seat. It has further been mentioned by the complainant in the F.I.R. that at about 7-15 a.m., when they reached near Western Octroi Post Mohallah Islampura, Opposite Fatima Manzil, Hafizabad Road, they noticed that from a red colour Hilux Dala, already parked there, Amjad Saeed armed with .223 bore rifle, Ishtiaq Ahmad, Ilyas, Intizar Ahmad armed with firearms, Mushtaq Ahmad and three unknown persons, in furtherance of their common intention, alighted from the said dala and came on the road. It has also been mentioned in the F.I.R. that when their car was crossing them, Mushtaq Ahmad raised a Lalkara not to spare any body from the car, upon which, Amjad Saeed fired a burst from the back side of the car which hit Ghulam Murtaza on his head. The complainant also stated in the F.I.R. that the remaining accused also made firing with their respective weapons which fires hit Muhammad Nawaz on the left shoulder, back side of right shoulder and back side of neck while Muhammad Asghar on the back side of chest. As per F.I.R., the complainant also alleged that due to the said firing, their car stopped whereafter all the accused decamped from the spot while raising Lalkaras. As per F.I.R., Muhammad Siddique, Ghulam Murtaza and Muhammad Nawaz succumbed to the injuries at the spot. The motive stated in the F.I.R. was that eleven months prior to the occurrence, Ghulam Mustafa was murdered by Iftikhar alias Khari in which case Amjad Saeed and Intizar Ahmad were the accused of abetment, Muhammad Siddique was complainant, Muhammad Nawaz alias Ghulam Murtaza were the eye-witnesses while the accused persons used to pressurize them not to pursue the said case.

3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused as required under section 265-C of the Code of Criminal Procedure, charge was framed to which accused pleaded not guilty and claimed trial.

4. In order to prove its case, prosecution produced as many as 16 witnesses during the trial. Muhammad Zubair Inspector, Haq Nawaz Baluch D.S.P. and Muhammad Afzal D.S.P. appeared before the Court as C.W.1, C.W.2 and C.W.3, respectively. The appellants were examined under section 342, Cr.P.C. They neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C. However, the learned trial Court convicted and sentenced the appellants as detailed above.

5. Learned counsel for the appellants contends that the appellants have falsely been involved in this case on account of mala fide of the complainant and the local police; that the prosecution evidence is deficient in all respects and as such the prosecution has failed to prove the charge against the appellants beyond any shadow of doubt; that the F.I.R. was drafted on the advice of a professional and roles were carefully described so that nobody could escape; that the narration of events in the F.I.R., from its bare reading, appears to be unnatural; that this occurrence, as per prosecution, took place at 7-15 a.m. whereas the first postmortem examination on the dead body of Nawaz deceased, was conducted by P.W.16 Dr. Muhammad Akram Sabir at 10-00 p.m., the postmortem examination on the dead body of Ghulam Murtaza was conducted at 10-45 p.m. and the postmortem examination on the dead body of Muhammad Siddique was conducted at 11-00 p.m. whereas P.W.11 Muhammad Asghar (injured-P.W.) was examined by P.W.7 Dr. Fazal Hussain at 7-45 a.m. who was taken to the hospital by the police prior to the registration of the formal F.I.R. which shows that the F.I.R. was delayed for the purposes of deliberations and consultations. Learned counsel has relied upon Iftikhar Hussain and others v. The State (2004 SCMR 1185), Illahi Bux v. The State (1982 SCMR 57) and Nawab Khan alias Nabi and 12 others v. The State (1988 SCMR 579) to contend that as the F.I.R. has not been registered with promptitude which is evident from its unnatural and improbable narrations, therefore, its benefit must go to the appellants. Argues that there was a general allegation of indiscriminate firing against the appellants but the kind of weapons, with which the appellants were allegedly armed at that time, was not mentioned either in the F.I.R. or in the statement of P.W.11 Muhammad Asghar (injured P.W.); that for all intents and purposes, P.W.10 Khurshid Ahmad (complainant) was inimical, related and chance witness, who was summoned from the village to assume the role of the complainant; that his testimony is discrepant and full of doubts because he did not receive any injury in this case though the allegation was that there was indiscriminate firing; that in the F.I.R. he did not state that he took refuge in the house of Fatima but before the Court he stated that after firing, he alighted from the car and then took refuge in the. nearby house of Fatima but the said factual was neither mentioned in the F.I.R. nor the said Fatima was produced before the learned trial Court, her statement was also not recorded, and even there is no mention of her house in the Site Plan (Exh.PJ) and that for these reasons, his statement is not reliable. In this regard, he has placed reliance on Haroon alias Harooni v. The State and another (1995 SCMR 1627). Learned counsel further contends that as far as testimony of P.W.11 Muhammad Asghar (injured P.W.) is concerned, the manner of occurrence indicates that this witness was not in a position to identify the assailants; that he received fire-arm injury from the back; that this witness is admittedly related to the deceased and can be termed as an inimical as he was the eye-witness in the earlier F.I.R. which was registered against the appellant party; that this witness had no other option but to fully support the dishonest narration of facts given by the complainant in the F.I.R. According to the learned counsel, it has come on record that the relatives of P.W. 11 Muhammad Asghar, had deep-rooted enmity with "Basharti Group" and though his presence at the spot is pot disputed but his credence is questionable on the grounds, firstly, he was not in a position to give photographic description of the occurrence especially when, as alleged, there was an indiscriminate firing by more than three assailants, secondly, he has followed foot-steps of the complainant whose testimony is doubtful, therefore, no reliance can be placed on the statement of this witness, thirdly, that this witness is inimical towards the appellants as he was a witness in the case which was pending against a brother of the appellant and the motive in such circumstances is always considered to be a double-edged weapon and, fourthly, the complainant party was travelling in a vehicle owned by one Muhammad Ali who has not been produced. Learned counsel has placed reliance on Muhammad Akram v. The State (2009 SCMR 230), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221) and Faheem Ahmad Farooqui v. The State (2008 SCMR 1572) to contend as the prosecution evidence is full of doubts, therefore, the appellants are entitled to the benefit of doubt as of right and not as grace. Learned counsel has vehemently argued that there was allegation that the appellants were armed with deadly weapons and made firing indiscriminately but no crime empties were recovered from the spot and as such in this situation only two inferences are possible, firstly, that the occurrence did not take place at the point, as alleged by the prosecution and, secondly, the Prosecution Witnesses were not present at the spot and similarly no weapon of offence was recovered from the appellants coupled with the fact that there are categorical findings by all the Investigating Officers that all the appellants except Intizar were found innocent and even the findings of all the Investigating Officers regarding Intizar were that he was not present at the spot. Adds that Site Plan (Exh. PJ) does not support the prosecution case because names of both the eye-witnesses are not mentioned in it. He has relied on Muhammad Zaman v. Muhammad Afzaal and others (2005 SCMR 1679). While advancing his submissions learned counsel contends that it is a case of unique nature where the prosecution has not produced even a single Investigating Officer and the learned Public Prosecutor gave them up, as having been won over. While giving reference to Article 129(g) of the Qanun-e-Shahadat Order, 1984 and placing reliance on Lal Khan v. The State (2006 SCMR 1846), learned counsel contends that an adverse inference shall be drawn against the prosecution because under Article 129(g) of the Qanun-e-Shahadat Order, 1984, the Court may presume that if the said evidence/witnesses were produced, they would not have supported the prosecution story. While further advancing his submissions, learned counsel submits that as the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, benefit of doubt be extended to the appellants and that, in the afore-referred circumstances, appellants are entitled to acquittal. While concluding his submissions, learned counsel for the appellants submits that though it is a case of acquittal because there is no evidence on the record to maintain conviction of the appellant but if this Court is not convinced with the argument of acquittal then, in the alternative, it is a case of mitigation as there are number of mitigating factors i.e. general and collective firing has been alleged against all the appellants, the appellants were found innocent in all the successive investigations, there is no recovery of crime empties from the spot, there is no corroborative piece of evidence, the factum of enmity between both the parties is admitted on the record; two co-accused of the appellants, namely, Salman and Ikhlaq, with the similar role, have been acquitted and no appeal has been filed either by the State or the complainant against their acquittal. In this regard he has placed reliance on Iftikhar Ahmad Khan v. Asghar Khan and another (2009 SCMR 502), Allah Dad and another v. The State (1995 SCMR 142), Muhammad Riaz and another v. The State and another (2007 SCMR 1413) and Shehruddin v. Allah Rakhio and 5 others (1989 SCMR 1461).

6. Conversely, the learned Additional Prosecutor General for the State, assisted by the learned counsel for the complainant, while vehemently opposing this appeal, contends that the appellants are named in the promptly lodged F.I.R. with detailed narration of events; that both the parties are known to each other and no question of mis-identification or substitution arises; that a real brother of the appellants was accused in a murder case which was registered for the murder of nephew of the complainant; that it is a daylight occurrence; that all the deceased of this case were the Prosecution Witnesses in the earlier case registered for the murder of Ghulam Mustafa wherein Iftikhar alias Khari was accused and Proclaimed Offender at the relevant time; that the natural eye-witness account was furnished by the prosecution and despite cross-examination the defence could shake nothing from their testimony; that in such like cases substitution is a rare phenomenon; that the prosecution has proved its case against the appellants beyond any shadow of doubt and that the sentence awarded to the appellants by the learned trial Court be maintained. Learned counsel for the complainant has placed reliance on Mukhtar Ahmad v. The State (2004 SCMR 220) to contend that non-recovery of any empty and weapon of offence is not fatal to the prosecution case. He has placed reliance on Muhammad Afzal and 2 others v. The State (2003 SCMR 1678) to submit that when the accused are nominated in the F.I.R. in a daylight occurrence and the ocular account is supported by the medical evidence then even if motive and evidence of recoveries is excluded from the evidence, conviction on a capital charge can be maintained. He has also referred to the case of Riaz Hussain v. The State (2001 SCMR 177) to argue that even death sentence can be awarded on the solitary statement of a witness as it is quality of the evidence and not the quantity. He has referred to the case of Ellahi Bakhsh v. Rab Nawaz and another (2002 SCMR 1482) to state that no benefit of the acquittal of some co-accused can be given to the convicted accused persons.

7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.

8. Occurrence in this case took place on 23-10-2001 at about 7-15 a.m., the matter was reported to the police by P.W.10 Khurshid Ahmad (complainant) at 8-15 a.m. at Mohallah Islampura, Hafizabad Gujranwala Road, the formal F.I.R. was registered on the same day at about 8-25 a.m. while the distance between the place of occurrence and the Police Station was about one kilometer. Contention of the learned 'counsel for the appellants that there was a delay in registration of the F.I.R. and as such the prosecution had ample time for consultations and deliberations, is belied by the circumstances available on the record. To substantiate his contention, learned counsel for the appellant has given reference to the statement of P.W.16 Dr. Muhammad Akram Sabir who has stated that he started the postmortem examinations on the dead bodies of the deceased at 10-00 p.m. while the occurrence took place in the morning and the said delay was because of non-availability of the police papers. We have gone through the statement of P. W.16 Dr. Muhammad Akram Sabir and noted that he was not even cross-examined from the defence side, so, the said contention of the learned counsel has no force. No other circumstance has been referred by the learned counsel for the appellants wherefrom it could be inferred that there was any delay in registration of the F.I.R., therefore, in our view the F.I.R. was lodged at the date and time given in the F.I.R.

9. The ocular account in this case was furnished by P.W.10 Khurshid Ahmad (complainant) and P.W.11 Muhammad Asghar (injured P.W.). As far as evidence furnished by P.W.10 Khurshid Ahmad (complainant) is concerned, though there are certain infirmities in his evidence but the fact remains that he lodged the F.I.R. and claims to have witnessed the occurrence. It has come on record that there was enmity between both the parties but mere fact of enmity is not sufficient to discard evidence of an eye-witness. However, this witness, in the F.I.R. named, Amjad Saeed, Ishtiaq Ahmad, Muhammad Ilyas and Intizar Ahmad as assailants but while appearing before the Court, he introduced two other persons, namely, Salman and Ikhlaq and though similar role of indiscriminate firing was levelled against them by the complainant (P.W.10 Khurshid Ahmad) like the appellants, but the learned trial Court has acquitted them and no appeal against their acquittal has been filed, therefore, this witness was partially disbelieved by the learned trial Court. As such, in the given circumstances, strong corroboration to believe the testimony of this witness, is required.

10. So far as testimony of P.W.11 Muhammad Asghar (injured P.W.) is concerned, tie was injured in this occurrence. As per P.W.7 Dr. Fazal Hussain, he was examined at 7.45 a.m. on the day of occurrence, meaning thereby, that he was in the hospital just after half an hour of the incident. Even his presence at the spot, has not been denied or disputed by the defence coupled with the fact that being injured in the occurrence, he was a star witness of the case.

11. Lengthy cross-examination was conducted on this witness. It was suggested to him that his brother-in-law Muhammad Ali had enmity with "Basharti Group" and in fact the said Muhammad Ali was the main target in this incident but fortunately he escaped and other persons died. This witness has denied this suggestion. Even otherwise, it is settled law that in such like cases substitution is a rare phenomenon and in this case no infirmity in the statement of this witness has been brought on record by the defence which could discard his testimony. Since presence of this witness at the spot is not disputed, which is even otherwise proved because he was injured and medically examined by P.W.7 Dr. Fazal Hussain just after half an hour of the occurrence, therefore, there is nothing on the record to disbelieve this witness, rather, his testimony finds support from the medical evidence furnished by the doctor. It is also settled law that it is the quality of the evidence and not the quantity which weighs with the Court and conviction can be maintained on the basis of testimony of a single witness, if the same inspires confidence. We have fortified our view by a judgment of the august Supreme Court of Pakistan reported in Allah Bakhsh v. Shammi and others (PLD 1980 Supreme Court 225), wherein, at page 227 of the judgment, it was observed that "the general principle, on the other hand, is that even in a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. In other words, the emphasis is on the quality of evidence, and not on its quantity". The above view was reiterated in the case of Farooq Khan v. The State (2008 SCMR 917), wherein, at page 921, it has been held as under: "(9) The credence of statement of solitary witness has already been examined by this Court in a number of cases. In this context, reference can be made to Mali v. The State (1969 SCMR 76), Muhammad Ashraf v. The State (1971 SCMR 350), Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State (1971 SCMR 659) and Muhammad Mansha v. The State (2001 SCMR 199). Moreover, conviction in any murder case can be based on the testimony of a single witness, if the Court is satisfied that the witness is reliable. In other words, the 'emphasis' is on quality of evidence and not on its quantity. In this behalf reliance can be placed on the case of Allah Bakhsh v. Shammi (PLD 1980 SC 225). (10) . (11) There is a rule that the statement of an interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not 'sufficient' to discredit the witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of interested witness are set out in Nazir v. The State (PLD 1962 SC 269) and Shehruddin v. Allhaj Rakhio (1989 SCMR 1461) " (emphasis supplied)

12. Apart from above, the evidence furnished by P.W.11 Muhammad Asghar (injured P.W.) is supported by the medical evidence furnished by P. W.16 Dr. Muhammad Akram who conducted postmortem examination on the dead bodies of the deceased persons. According to him he conducted postmortem examination on the dead bodies of all the three deceased persons on 23-10-2001. The post-mortem examination on the body of Nawaz deceased, was conducted by the said doctor at 10-00 p.m. who found four fire-arm injuries on his person. The probable time between these injuries and the death was immediate while between death and postmortem examination was about fourteen to. sixteen hours. The postmortem examination on the dead body of Ghulam Murtaza deceased was conducted by him on the same day at 10-45 p.m. He found two fire-arm injuries but explained that Injury No.2 was exit of Injury No.1. According to the said doctor, the probable time between these injuries and the death was immediate while between death and postmortem examination was about fifteen to seventeen hours. The postmortem examination on the dead body of Muhammad Siddique deceased was conducted at 11-00 p.m. on the same day by the same doctor who noted four fire-arm injuries on his person amongst whom one was an exit wound. The probable time, according to him, between these injuries and the death was immediate while between death and postmortem examination was about sixteen to eighteen hours. The time of occurrence given by the prosecution and the time noted by the doctor coupled with injuries on the dead bodies of the deceased persons, coincide with each other.

13. As we have believed the testimony of P.W.11 Muhammad Asghar (injured P.W.), therefore, in our considered view, if the evidence furnished by P.W.10 Khurshid Ahmad (complainant) is excluded from the prosecution evidence, even then the statement of P.W.11 Muhammad Asghar (injured P.W.) is sufficient to prove guilt of the appellants.

14. So far as vehement argument of the learned counsel for the appellants regarding innocence of the appellants by all the Investigating Officers is concerned, it is settled law that opinion of the police is inadmissible in evidence. However, it is a fact that in this case all the Investigating Officers were given up by the prosecution, being won over. However, Muhammad Zubair Inspector, Haq Nawaz Baluch D.S.P. and Muhammad Afzal D.S.P appeared before the Court as C.W.1, C.W.2 and C.W.3, respectively but we have noted that the appellants did not produce any evidence or witness in support of their plea of innocence/alibi, so, evidence of these police officials cannot help them because the same is inadmissible.

15. In the afore-referred circumstances, this Court is of the considered view that the prosecution has proved its case against the appellants beyond any shadow of doubt. The precedent case-law relied upon by the learned counsel for the appellants for their acquittal is distinguishable on facts. Similarly, the cases referred to by the learned counsel for the complainant for maintaining conviction of the appellants on a capital charge are of no relevance because of distinguishable features. We have noted that the learned trial Court has convicted the appellants under section 302/149, P.P.C. and omitted to mention either sections 302(a) or 302(b), P.P.C. and certainly it is not a case under section 302(a), P.P.C. and would fall within the ambit of section 302(b), P.P.C., therefore, appellants conviction under section 302(b)/149, P.P.C. on all the three counts is hereby maintained as Tazir. Conviction of the appellants under section 324/149, P.P.C. for the injuries caused on the person of P. W.11 Muhammad Asghar (injured P.W.) is also I maintained as he has proved the same.

16. As far as question of quantum of sentence of the appellants is concerned, the contentions of learned counsel for the appellants in this respect is that the appellants were found innocent during the course of successive investigations and the prosecution did not produce the Investigating Officers as Prosecution Witnesses but they were summoned as Court Witnesses i.e. Muhammad Zubair Inspector, Haq Nawaz Baluch D.S.P and Muhammad Afzal D.S.P appeared before the Court as C.W.1, C.W.2 and C.W.3, respectively who categorically stated that during the course of investigations, appellants were found innocent. As far as declaration of innocence of the appellants by the Investigating Officers is concerned, we have already observed above that opinion of police is inadmissible in evidence. However, other contentions of the learned counsel for the appellants appear to have force as we have noted that there is a general allegation of indiscriminate firing against all the appellants; no recovery of weapon of offence was effected from any of the appellants; no crime empty was taken into possession from the spot and two co-accused of the appellants, namely, Salman and Ikhlaq, with the similar role, have been acquitted by the learned trial Court. To fortify our view, reference can be given to the case of Allah Dad and another v. The State (1995 SCMR 142), Muhammad Riaz and another v. The State and another (2007 SCMR 1413) and Shehruddin v. Allah Rakhio and 5 others (1989 SCMR 1461) wherein sentence of death of the accused in the said cases was converted into imprisonment for life mainly on the ground that collective firing was attributed to them on the person of the deceased and it was not sure as to whose fire hit whom. Therefore," considering these factors a mitigating circumstance, the sentence of the appellants is converted from death to imprisonment for life on all the three counts each. The amount of compensation as awarded to the appellants by the learned trial Court and the imprisonment in default thereof shall remain intact. However, the sentences are directed to run concurrently and benefit of section 382-B, P.P.C. is extended to the appellants. This appeal is party allowed with the above modification in the quantum of sentence of the appellants. For afore-referred reasons, we do not find any merit in the connected Criminal Revision No. 852 of 2003 filed for enhancement of amount of compensation awarded to the appellants, is hereby dismissed. Murder Reference is answered in the Negative and sentence of death is Not confirmed. N.H.Q./I-11/L Sentence reduced.