P L D 2009 Supreme Court (AJ&K) 22 (PLP)

MUHAMMAD REAZ AKHTER CHAUDHRY, C.J.

This appeal is directed against judgment of the Shariat Court of Azad Jammu and Kashmir dated 28-4-2006, whereby both the appeals, one filed by the convict-appellant and the other by the complainant against the judgment of District Criminal Court Mirpur were dismissed.

2. The succinct facts forming background of the instant appeal are that a Challan under sections 302 and 341, A.P.C. was submitted against the appellant in the District Criminal Court Mirpur. After the conclusion of trial, the said Court awarded the sentence of rigorous imprisonment for life under section 302 A.P.C. Feeling aggrieved from the said judgment, the appellant filed an appeal in the Shariat Court of Azad Jammu and Kashmir, while another appeal was filed by the complainant for enhancement of sentence. Both the appeals were dismissed. The instant appeal has been filed against the afore-said judgment of the Shariat Court.

3. Briefly stated the prosecution case, as unfolded in the F.I.R., is that on 5-8-1995 at 11-00 a. m. Muhammad Malik, P.W.1, lodged a report at Police Station Afzalpur stating therein that he is resident of Mohra Zaildaran. Murad Ali, son of Hayat, and Imtiaz Hussain, son of Rehm Dad, have a dispute of some land, due to which acrimony was prevailing among them. Niaz Ali, son of Mashooq Hussain; was friend of Murad Ali, while Pervaiz, son of complainant, was friend of Imtiaz Hussain. Niaz Ahmed and Murad Ali gave threat to Perviz on various occasions and asked him to leave friendship with Imtiaz Hussain, otherwise he will be killed. About this threat the son told Imtiaz Hussain, who said that nothing will happen. Due to this enmity accused Niaz Ahmed on the abetment of Niaz Ali today, on 5-8-1995, waylaid the son near the house of Mehrban Hussain son of Adalat Khan, resident of Mohra Zaildaran. Pervaiz, his son, was going to his house from Sahang Bazar. At about 10-00 a. m. when he reached in a drain near the house of Mehrban Hussain, Niaz Ahmed opened fire from his .222-bore gun on the son, due to which the bullet hit his chest. He sustained injuries and fell down. They were bringing him to the Hospital, but he died in Sahang Bazar. The dead body was brought to Hospital on a Hiace. This occurrence was witnessed by Shabbir Hussain and Muhammad Tariq.

4. On this report a case under sections 302 and 341, A.P.C. was registered. After registration of case, P.W.14, Muhammad Bashir, S.H.O., prepared inquest report and injury sheet. He referred the dead body to Hospital for postmortem. Dr. Muzaffar Hussain, C.M.O. Pindi Sabarwal Hospital, conducted postmortem and handed over the postmortem report, Exh.PH, to police. According to postmortem report, Pervaiz sustained following injuries:-- "A stout body wearing white coloured Shalwar and Qameez and Bunyan with multiple holes on front of chest and abdomen and on side of chest. Stained in blood. Rigor mortis not fully developed. (1) A firearm wound 0.5 x 0.5 c.m. size deep into the chest, margin inverted at right lateral sternel border of lower chest (at 5 ICS). (2) A firearm wound size about 0.5 x 0.5 c.m. in length and width deep into the chest, inverted margin just below the nipple in the mid-clavicular line on right side. (3) A firearm wound size about 0.5 x 0.5 c.m. at the upper left side of chest just below the middle of left clavicle. (4) A firearm wound size about 1.5 x 0.5 c.m. deep into the abdomen with averted margins at left hypochondrium (abdomen). (5) A 0.5 x 0.5 c.m. in size of firearm wound on back of abdomen near the left side of vertebral column, margin inverted. (6) A firearm wound of size about 3.0 c.m. x 1.5 c.m. with averted margins with bleeding continued in the interior axillary line just below the right nipple on right side of chest. (7) A firearm wound 0.5 x 0.5 c.m. on the antero medial surface of right arm deep into the arm, inverted margin. (8) A firearm wound on posterior surface of arm, averted margin blood oozing from the wound. (9) A firearm wound size about 7.0 c.m. in length and 2.0 c.m. in width 1/2 c.m. in depth at right upper lateral surface of forearm. (10) A firearm wound size about 4.0 c.m. length and 1.5 c.m. in width and 1/2 c.m. depth parallel to wound No.9 on upper antero lateral surface on forearm. Remarks by Medical Officer. In my opinion cause of death was massive Haemorrhage (due to perforation of both lungs,' stomach and intestine mainly due to injury Nos.1 and 2 on right .chest) leading to cardio-respiratory arrest and causing death. Weapon used By firearm injury Direction of fire From left side of body directing to right side in the front and injury on abdomen was from backside fire. Distance of fire done 'Within 3-5 yards."

5. On 5-8-1995 P.W.14, S.H.O. Police Station Afzalpur, recovered bloodstained sand and one packet of Capstan Cigarettes. The bloodstained packet contained cigarettes. He prepared the parcel of cigarettes and a recovery memo, Exh.PD, which was witnessed by Muhammad Khalil, P.W.4, and Munir, P.W.5. He also recovered bloodstained clothes of deceased Pervaiz in presence of Muhammad Matloob and Iftikhar Hussain, P.Ws. 7 and 8 and prepared recovery memo, Exh.PF. On 13-8-1995 the S.H.O., P.W.14, recovered a .222 bore gun at the instance of accused Niaz Ahmed in presence of Muhammad Khalil, P.W.4, and Shabbir Hussain, P.W.2 and prepared the recovery memo, Exh.PC. On 17-8-1995 the S.H.O., P.W.14, also recovered licence No.43271 of 1994 of gun in presence of Muhammad Malik, P.W.1, and Shabbir Hussain, P.W.2. Muhammad Akram, Patwari, prepared the site plan along with explanations and after completion of the investigation, a challan was submitted in the District Criminal Court Mirpur. After the conclusion of the trial, the District Criminal Court Mirpur found the appellant guilty of the offences under sections 302 and 341, A.P.C. and awarded him the rigorous imprisonment for life. Feeling aggrieved from the said order, the appellant filed an appeal in the Shariat Court of Azad Jammu and Kashmir, which was dismissed. The instant appeal has been filed against the afore-said judgment of the Shariat Court.

6. Mr. Bostan Chaudhry, the learned counsel for the appellant, strenuously argued that the case was remanded illegally by this Court and a chance was provided to the prosecution for filling up the lacunas, while no prejudice was caused to the prosecution by recording the statement under section 342, Cr.P.C. It was further argued that the case was registered after a detailed inquiry, therefore, the F.I.R. in the instant case was a subsequent F.I.R. and it has no evidentiary value. He further submitted that the police did not conduct investigation fairly. It was next contended by the learned counsel that the postmortem report contained that the rigor mortis was not fully developed. He submitted that actually the rigor mortis was fully developed. Usually rigor mortis starts after 8 to 10 hours of the death, thus it is clear that the death occurred 8 to 10 hours before the postmortem. It clearly indicates that the occurrence did not take place at 10 a.m. because the dead body was examined by the doctor' at 11 a.m. and the death occurred 8 to 10 hours earlier, which means that the death occurred at about 3 a.m. He submitted that the postmortem report nullifies the time of occurrence and it is inconsistent with the F.I.R.

7. It was further contended by the learned counsel that Shabbir Hussain was the real brother of deceased and he was shown as a chance witness. No reliance should be placed on his evidence. Even otherwise his evidence is full of contradictions, therefore, no sentence can be awarded on the basis of such evidence. While emphasizing on the said point, he submitted that according to prosecution story, F.I.R. was lodged at 11 a.m., while according to statement of Shabbir Hussain, he proceeded from the place of occurrence at 12 noon and report was lodged at 1 pm. It was next contended by the learned counsel that Muhammad Tariq was cited as an eye-witness and the prosecution did not produce him as a witness, therefore, the presumption goes against the prosecution. It was further argued by the learned counsel that Shabbir Hussain was accused in a murder case and subsequently compromise took place between the parties. It was next submitted by the learned counsel that Malik deposed that Shabbir Hussain lives at Abbottabad and then stated that he had come from Abbottabad, while Shabbir Hussain deposed that he is running a shop of-chicken at Banni-Sahang. It was next submitted by the learned counsel that Muhammad Malik deposed that Pervaiz died in Bazar, while Shabbir Hussain did not depose as such. It was next submitted by the learned counsel that in the inquest report the F.I.R. number was not mentioned, which clearly shows that the F.I.R. was recorded subsequently. The learned counsel submitted that the case of prosecution is amalgamation of contradictions, surmises and conjectures and both the lower courts have wrongly awarded the sentence to the appellant. He submitted that it is well settled principle of law that benefit of doubt always goes to the accused person. It was also submitted by the learned counsel that in the instant case there was only one eye-witness, who is also a chance witness and his statement is not corroborated by other strong, independent and cogent evidence, therefore, no reliance could be placed on his statement. Both the lower courts have wrongly placed reliance on his statement. He had enmity with the accused, therefore, his evidence could not be considered. He referred a case reported as Muhammad Yaqub v. The State and another 2007 SCR 332 in support of his contentions.

8. While controverting the arguments of the learned counsel for the appellant, Mr. Abdul Majeed Mallick, the learned counsel for the complainant, argued that the case was remanded by the Supreme Court of Azad Jammu and Kashmir and this Court is not an appellate Court against its own judgment, therefore, the contention raised by the learned counsel for the appellant that the case was wrongly remanded by this Court is not tenable. It was further submitted by the learned counsel that as far Muhammad Tariq, P.W., was concerned, he belongs to Gujrat and the Court could not summon him from Gujrat, therefore, no presumption can be drawn against the prosecution. It was next submitted by the learned counsel that no doubt this is a case of single eye-witness, but his evidence finds full corroboration from rest of evidence and the prosecution has proved the case beyond any doubt. Even the S.H.O. appeared before the Court. It was suggested to him by the defence as under: In this way during the cross-examination it was admitted by the defence that the convict-appellant fired from point No.4. Thus the presence and firing of the accused was even admitted by the defence. The prosecution has proved the case beyond any doubt. It was a daylight murder. A young man of 27 years was murdered by the appellant and the story narrated by the complainant finds corroboration from postmortem report, recovery of gun and empties of bullets. The judgments passed by the lower courts are perfectly legal, which require no interference by this Court. In support of his contentions the learned counsel referred the cases reported as Muhammad Tariq and others v. The State 2007 PCr.LJ 47, Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr. LJ 524 and Dildar Hussain v. Muhammad Afzal and others PLD 2004 SC 363.

9. We have heard the learned counsel for the parties., gone through the record and have given our utmost muse to the respective arguments advanced by the learned counsel for the parties. As the contention of the learned counsel for the appellant that the case was wrongly remanded by this Court is concerned, it has no substance because this Court is not a Court of appeal against its own judgment.

10. The next contention raised by the learned counsel for the appellant was that in the instant case the F.I.R. was recorded after preliminary inquiry, therefore, it has no evidentiary value. The perusal of record shows that the occurrence took place on 5-8-1995 at 10-00 a.m. and the F.I.R. was recorded on the same day at 11 a.m. The grievance of the learned counsel for the appellant was that the F.I.R. was recorded after the investigation of the case. Now the question arises' whether the F.I.R. was recorded after the investigation of case? The perusal of record shows that on 5-8-1995, the day of occurrence, the bloodstained sand and one bloodstained packet of Capstan cigarettes were recovered from the place of occurrence on the same day, but in the title of recovery memo. the name of accused was missing. It was as under:-- In the afore-said recovery memo. the name of accused was not mentioned and the column is vacant. On the same day the bloodstained clothes of the deceased were recovered and the recovery memo., Exh.PF, was prepared. This recovery memo. also did not contain the name of accused person. The title of recovery memo. is also State v. Nil. On 13-8-1995 .222-bore gun was recovered at the instance of accused person, but in the title of recovery memo the name of accused was not mentioned. The licence of .222-bore gun was recovered and recovery memo. Exh.PB, was prepared, but in the title the name of accused person was not mentioned. Now the question emerges whether up to the preparation of recovery memo. the F.I.R. was not recorded against the accused person, therefore, his name was not mentioned in the title of recovery memos. or inadvertently the police could not cite the name of accused person in the recovery memo.? In this respect we would like to refer the statement of Muhammad Bashir Khan, S.H.O. Police Station Afzalpur. At the back of page 3 and page 4 of his statement, he stated that it is correct that in the F.I.R. the accused was nominated, but he did not mention the name of accused in Exh.PD because during the investigation the offence was not proved. After the completion of investigation, when the offence was proved against the accused, then he mentioned his name in the title as "State v. Niaz". He further stated that it is correct that in Exh.DE he mentioned the name of accused in the title subsequently. In Exh.PE in the column of accused, the name of Niaz Ahmed etc. was not mentioned. For having proper perception we would like to reproduce this portion of the statement of S.H.O. which is as under:-

11. The afore-said explanation furnished by the S.H.O. is no explanation at all. It is a lame excuse. Although the version of S.H.O. supports the version of the accused that F,I.R was recorded subsequently, but if the record is examined with utmost care, then it reveals that the recovery memo. Exh.PC, was prepared on 13-8-1995, according to which .222-bore gun along with Magazine was recovered. In the title of recovery memo. the name of accused has not been mentioned by S.H.O., but in the body of recovery memo. it is clearly stated that the gun along with the Magazine was recovered from the house of Niaz Ahmed at his instance. It clarifies the position. The body of recovery memo. contained that the gun was recovered on the pointation of Niaz Ahmed.

12. Assuming for the sake of arguments that if the F.I.R. was recorded after preliminary investigation, then what would be its effect on the case? If at all the F.I.R. has been recorded after preliminary investigation, then this irregularity by itself will not be sufficient to discard the prosecution case as false. The prosecution case could not be thrown away simply on the ground that the F.I.R. was recorded after the Preliminary investigation. This view finds support from a case reported as Kareem Bakhsh v. The State 1976 P. Cr. LJ. 911 wherein at page 914 it has been held as under:-- "....This evidence amply shows that the F.I.R. was recorded at the spot after the preliminary investigation probably a little before 2-30 a.m. It is therefore, inadmissible in evidence and cannot be taken into consideration, but this irregularity is not by itself sufficient to show that the prosecution case was false or unbelievable." The afore-said report clearly contains that if preliminary investigation was conducted before the recording of F.I.R., then merely on this ground the case should not be thrown away, but the Court has to take into consideration the other factors and evidence etc. This view finds further support from a case titled Liaqat Ali and 2 others v. Raja Shahid Nawaz and another 2007 PCr.LJ. 246 wherein at page 255 it has been held as under:-- " .In our view, a prosecution case cannot be thrown merely on the ground that F.I.R. was recorded after preliminary investigation. However, it is a serious irregularity which creates doubt. It would however not vanish the sanctity attached to section 154, Cr.P..C." The afore-said view also finds support from another case titled Harsan v. The State 1989 PCr.LJ 809 wherein at page 812 it has been held as under:-- "The learned counsel for the appellant has relied upon the cases reported as Anwar v. The State 1975 P.Cr.LJ. 750 and Muhammad Haneef v. The State PLD 1977 Lah. 1253 in an attempt to show that the sanctity attached to F.I.R. has vanished. However, we are of the view that the P.I.R. recorded after preliminary investigation is an irregularity which would not be sufficient to discard the case of prosecution as false."

13. In the instant case there, is one eye-witness whose name is Shabbir Hussain s/o Muhammad Malik, who is real brother of deceased and he is a chance witness. He stated in his statement that he was running a shop of Chicken on the bridge of Sahang. On 5-8-1995 he was going from shop towards the house. The brother, Pervaiz, was coming from the side of bridge. It was 10 a.m. The accused, Niaz Ahmed, was sitting in the house of Mehrban Hussain. When Pervaiz reached near the drain, the accused Niaz Ahmed fired on him. Thus his statement clearly reveals that he was a chance witness because at the time of 10 a.m. there was no chance for closing the shop and going towards the house. Usually the shopkeepers use to close the shops at the time of evening. On the day of occurrence, according to him, he went to home for delivering vegetables, thus he was a chance witness. Where a witness is a chance witness and is highly interested in the deceased person, his evidence cannot be considered to be worthy of credit. This view finds support from a case reported as Soomar and another v. The State 1990 MLD 1077 wherein at page 1081 it has been held as under:-- "A chance witness is a witness who should not be normally where and when he professes to have been. There is no magic in the comment "chance witnesses". Though this is the usual argument, its implication is hardly understood. However, when a witness is mainly a chance witness and is highly interested in deceased person, his evidence cannot be considered to be worthy of credit." The afore-said view further finds supports from another case titled Zafar Hayat v. The State 1995 SCMR 896.

14. It is pertinent to note that while relying upon the testimony of chance witness, the Court should be more cautious and while appreciating his evidence, the Court should also consider the other factors and merely on the statement of a chance witness conviction should not be awarded to a person. In the instant case Shabbir Hussain is a chance witness. Moreover he is the real brother of deceased and he was also inimical towards the accused person. It would also not be out of place to mention here that Shabbir Hussain, at page 63 of the file, stated in his statement that it is correct that the allegation of murder of Farooq was on him. A case was registered against him but he compromised with the other party on the intervention of the D.I.G. Sarfraz. Thus it shows that he was also involved in a murder case. Now the question arises whether on the statement of such like person the capital punishment or life imprisonment could be awarded to a person? Normally the Courts are hesitant to award capital punishment or life imprisonment on the basis of statement of a criminal person. This view finds support from a case reported as Jaffar and another v. State 1999 MLD 2223 wherein at page 2230 it has been held as under:-- "....However, due to his history of involvement in criminal cases and having remained in jail twice, we have felt ourselves a bit hesitant and slow in placing whole-hearted reliance on his testimony." This view further finds support from another case titled Nawab and others v. The Crown AIR 1925 Lah. 397.

15. While appreciating the evidence of a chance witness, the Court should be careful and it should scrutinize the 'evidence very strictly. The conviction should not be recorded simply on the statement of a chance witness unless and until the same is corroborated by other strong and cogent evidence. This view finds support from a case reported as Muhammad Bashir alias Pervaiz and another v. The State 2005 P.Cr.LJ. 1135.

16. It is well-settled principle of law that the evidence of a chance witness should only be accepted if his presence at the place of occurrence is established and where no corroborative evidence in support of his version is available, then the statement of such witness has to be excluded from consideration. This view finds support from a case reported as Khalid Javed and another v. The State 2003 SCMR 1419.

17. It is pertinent to note that where a chance witness has enmity with the family of accused, then his evidence should not be relied upon unless and until the same is corroborated by some other strong and cogent evidence. This view finds support from a case reported as Mumtaz Khan v. The State 1984 PCr.LJ

407. In the instant case the enmity of Shabbir Hussain is admitted. Moreover, he himself remained accused in a murder case, therefore, it would not be safe to award the capital punishment or life imprisonment on the sole statement of such a person. In the instant case there is only one eye-witness, Shabbir Hussain, who, according to the prosecution, has seen the occurrence.

18. Now the question arises whether it would be safe to award sentence simply on the statement of sole eye-witness? No doubt where the testimony of a sole witness inspires confidence and his character is beyond any doubt, he has no enmity with the accused or relationship with deceased and his evidence is corroborated by other strong and cogent evidence then, of course, conviction can be 'recorded on the statement of sole eye-witness. But where the sole eye-witness is also a chance witness, closely related to deceased, has enmity with the accused and his character is also not above board then the capital punishment or life imprisonment could not be awarded simply on the basis of statement of such solitary eye-witness. It would be unjust and unsafe to award capital punishment or life imprisonment on the statement of such a person. This view finds support from a case reported as Noora and Shera v. The State PLD 1973 SC

469. Where the prosecution case is based on sole eye-witness and his evidence is full of infirmities then, of course, the capital punishment could not be awarded on the basis of such eye-witness. Conviction of a murderer on the evidence of solitary eye witness is highly unsafe. This view finds support from a case titled Sikandar v. The State 1978 PCr.LJ

504. It further finds support from another case titled Najeebullah Khan v. The State and others 2002 MLD 872.

19. In the instant case Muhammad Malik appeared as a witness and deposed before the Court that there was dispute of land between Murad and Imtiaz. Pervaiz, deceased, was with Imtiaz, while Murad was with Niaz Ahmed. Niaz Ahmed said to Pervaiz that he should leave Imtiaz and if he did not leave him then he will be killed. He also deposed that the accused opened attack on the deceased and fired from .222-bore gun which hit on the chest of deceased.

20. Now the next question arises whether the statement of Shabbir Hussain finds corroboration from other independent evidence? The allegation against Niaz Ahmed is that he fired with a .222-bore gun on Pervaiz, who died due to this firing. The .222-bore gun was recovered at the instance of Niaz Ahmed in presence of Shabbir Hussain and Muhammad Khalil, sons of Muhammad Malik. As far Shabbir Hussain is concerned, he is also an eye-witness and his evidence has been discussed in detail. He is real brother of deceased. Moreover he remained accused in a murder case, which was subsequently compromised, therefore, while relying on his statement, we have to be very cautious. Muhammad Khalil is a witness of recovery, who is also brother of Shabbir Hussain, but at the same time the recovery was conducted and witnessed by S.H.O. who has no interest with any party. The S.H.O. was an independent witness. It is well-settled principle of law that the recovery can be proved by a single witness. Thus the evidence of recovery of .222-bore gun corroborates the version of prosecution. It further finds corroboration from the post-mortem report, according to which Pervaiz died after sustaining firearm injury.

21. The statement of Shabbir Hussain finds corroboration from the recovery of gun and the post-mortem report. Now the next question emerges whether the punishment of life imprisonment was justified in the instant case or what punishment will be sufficient to meet the ends of justice? The sentence must be weighed in golden scale and should be properly balanced to deter the rest of society from the 'commission of crimes without being unnecessary harsh. To award the punishment is primary function of all the social States. The crucial problem is whether a criminal is considered by the society as a nuisance to be abated or an enemy to be crushed or a patient to be treated or a refectory child to be disciplined or should be regarded as nothing of these things, but simply be punished to show others that antisocial conduct attracts heavy punishment. The problem of crime, criminals and awarding punishment requires attention of Criminologists and Penologists all around the social world, but unfortunately there is dearth of such individuals or institutions, who may give opinions in Criminology and Penology based on our social conditions and provide guidance in respect of punishment. The Court, therefore, cannot resolve the issue of awarding sentence blindly or without taking note of theories of punishment and background of offenders. This duty falls on the superior Courts to fill in the vacuum and the Courts should do justice keeping in view all the circumstances and background of the offenders. Therefore the punishment awarded should neither exceed a ceiling equal to a level just deserved by the offender for the offence nor for below a floor level necessary to protect public from further serious crimes and to show that the gravity of offence is depreciated. Where the case of prosecution is proved beyond any doubt, then it is the legal duty of the Courts to award punishment to an offender to make the evil-doer an example and warning for the like minded persons. Despite the fact that the crime is increasing in society, yet the Courts normally avoid awarding capital punishment in the offences punishable with death, which amounts to gross miscarriage of justice, whereas Courts are bound to do complete justice with both the parties. Whenever people fail to secure justice from the Courts of law, then they resort to take law in their own hands to settle their matters themselves. Such a situation is very alarming. While awarding sentence the Court should keep in consideration all the circumstances and evidence of the case. Now the question emerges whether in the instant case on the basis of statement of Shabbir Hussain, the sole eye-witness, the recovery of gun and post-mortem report, the capital punishment or life imprisonment is sufficient to meet the ends of justice? In our view the capital punishment or life imprisonment will be more harsh. Thus keeping in view the overall circumstances and evidence of the case, we feel that the sentence of fourteen years is sufficient to meet the ends of justice. Thus it is hereby ordered that the sentence of life imprisonment awarded by the trial Court and upheld by the Shariat Court is set aside and converted into fourteen years' imprisonment. The appellant shall also be entitled to benefit of section 382-B, Cr.P.C. H.B.T./170/SC(AJ&K) Sentence reduced.