1991 P Cr (PLP)

The appeal against conviction of the appellants and the revision on behalf of the State for enhancement of sentence, arise out of a common order of District Criminal Court, Kotli, passed on January 29, 1990, as such these are disposed of together.

2. Abdul Khaliq, deceased, was murdered by the firing of the culprits, on June 21, 1985 at 10 a.m., in the house of one Dil Muhammad of village Panjera, Tehsil Kotli, Karamat Hussain, brother of the deceased, made a report wherein it was alleged that Muhammad Siddique and eleven other accused, listed in the report, assembled in the shop of Muhammad Anwar, accused, in Panjera Bazar. Muhammad Anwar went to the shop of the deceased, where Muhammad Yaqub was also present. The accused informed Abdul Khaliq that the other accused had arrived in his shop with an intention to kill him (Abdul Khaliq), as such it was advisable for him to go back home. On enquiry of Abdul Khaliq, he replied that whatever was told to him was enough, so he should immediately leave for home. Muhammad Anwar, after leaving the message, was to depart for his shop, when Abdul Khaliq again asked him as to what was guarantee that in case he left for home, the accused would not attack him. Muhammad Anwar assured him that he would not be attacked as he was responsible for that. Abdul Khaliq closed his shop and alongwith Muhammad Yaqub, left for home. He had covered a short distance and had reached the top of a ridge when accused Muhammad Siddique, Sarfaraz, Mazhar Hussain, Muhammad Siddiqu son of Khan Muhammad, Gul Hussain, Abdul Haq, Farakat Hussain, Ahmad Hussain, Sain Aslam, Mustafa, Karamat and Amin, armed with rifles and by forming unlawful assemAy, raised Lalkara on Abdul Khaliq. They made sporadic firing. Abdul Khaliq and Yaqub started running down the ridge but the accused continued to chase them. They continued the firing. Abdul Khaliq and Yaqub, in order to save themselves, entered in a room of the house of Dil Muhammad Khokhar, in village Panjera. Yaqub hid himself behind the beddings. Abdul Khaliq stood behind the door. The accused also arrived on the scene. They pushed the door for their entry. They failed to force in their entry. A panel of the door was broken by the thrust inflicted by the accused with the butts of their guns, wherefrom Sarfaraz accused fired at Abdul Khaliq. It hit his left thigh and he fell down. Sarfaraz accused asked Muhammad Siddique son of Abdul to enter the room and kill Abdul Khaliq. Thus, on prompting and persuasion of rest of the accused, Muhammad Siddique entered the room from the broken pannel and fired at Abdul Khaliq and hit him at abdomen, by which he expired on spot. The accused raised Lakaras that they had finished Abdul Khaliq and let anyone may come to take away his dead body. Thereafter they disappeared from the scene. After their departure, Yaqub came out of the hide. Makhan Khan and Saghir Gul, eye-witnesses of the incident, also walked close to the deceased Yaqub told them the whole incident. Then Yaqub was sent to inform Karamat Hussain, brother of the deceased. The motive of the alleged murder was described ab political enmity due to general elections to the Legislative Assembly, which immediately preceded the incident of murder. The complainant party belonged to Muslim Conference. Zaratullah Khan, Member District Council and Abdul Khaliq brother of the complainant were supporters of the candidate of Muslim Conference who won the election, as such the accused, who supported the opposite candidate, nursed grudge against them. They were after the life of Abdul Khaliq, to which they succeeded by killing him.

3. Shahpal, Razzaq, Inayat Khan, Subedar Tikka Khan, Sardar Anwar, Wali Muhammad and Abdul Karim accused were ascribed the offence of conspiracy and abetment. Farakat Hussain, Ahmad Hussain and Gul Hussain were arrested. Abdul Karim, Wali Muhammad, Shahpal, Inayat Khan, Razzaq, Tikka Khan and Anwar Khan secured their bail before arrest. Muhammad Siddique son of Abdul Karim, Sarfaraz, Muhammad Siddique son of Khan Muhammad, Abdul Haq, Sain Aslam, Mustafa, Karamat and Amin absconded, but on presentation of challan, all the accused, except Sarfaraz, put up their appearance. They pleaded not guilty. Muhammad Siddique remained in judicial lock-up throughout the trial whereas the other accused availed their bail.

4. On November 30, 1989, the day of final arguments, accused except Ahmad Hussain, Abdur Razzaq and Shahpal, were present in the Court. Ahmad Hussain, Abdur Razzaq and Shahpal applied for their exemption. The application was granted and the case was adjourned to December 14, 1989. The accused avoided their presence in the Court and made successive applications for their exemption from personal appearance. On January 29, 1990, the judgment was announced by the trial Court. Muhammad Siddique, Mazhar Hussain, Muhammad Siddique son of Khan Muhammad, Farakat, Amin, Gul Hussain and Mustafa were convicted. Abdul Karim, Wali Muhammad, Tikka Khan, Muhammad Anwar, Shahpal, Muhammad Razzaq and Inayat Khan were acquitted. Abdul Haq, Karamat Sain were absent, as such judgment to their extent was kept reserved.

5. The trial Court upheld the liability ascribed to the convict-appellants and held them responsible for the murder of Abdul Khaliq, deceased. They were found guilty of offence of murder as contemplated under section 5 of the Islamic Penal Laws Act and were awarded sentence of rigorous imprisonment for ten years each. In addition to that, they were awarded sentence of rigorous imprisonment for one year and two years under sections 147 and 148 of the Penal Code.

6. The main objection against the order of conviction raised by the learned counsel for defence is that Makhan Khan alone is an eye-witness in the case. He was a chance witness, as such his evidence could not be relied on to sustain conviction. In addition to that, reference was made to the omissions and variations in the testimony of Makhan Khan.

7. The occurrence took place at day time, at 10 o'clock, in the month of June. The place of occurrence is the house of Dil Muhammad Khokhar in village Panjera. The deceased succumbed to the injuries caused by firing. He was attacked,, by various persons. The presence of Mst. Maqbool Jan eye-witness, is un denied. Abdul Khaliq, deceased, was a shopkeeper. His shop was situated in Panjera Bazar. Karamat Hussain,, complainant. deposed that he went to attend his business at 6 o'clock in the morning. The culprits chased him and it was in that state of happenings that he took shelter in a room of the house of Dil Muhammad. All these circumstances are unquestioned. Keeping in view the aforesaid scenario, it is enjoined to appreciate the evidence of Makhan Khan, P.W., an alleged eye-witness, in such perspective. Makhan Khan was resident of village Jandala. On the day of incident, he went to a barber for hair-cutting. The barber was not found at home. He was accompanied by Saghir,, another eye witness. They decided to go to Panjera Bazar. They were on their way when they were attracted by gun, fires. They saw the deceased and Yaqub running ahead of the accused and entering the house of Dil Muhammad. In such a situation when about a dozen persons were found running in pursuit of two persons, ordinarily, residents of the vicinity including the passers by were naturally,, expected to get attracted by the incident. The distance between the place of residence of the witness and the place of incident is not on record. Likewise, the distance and direction of the house of the harbour visited by the witness was unknown. Whether the distance between the aforesaid places was considerable or not, remains undisclosed. But the fact remains that Makhan Khan testified to have see.1 the whole incident of murder in a manner, which does not exclude or create suspicion of the possibility or probability of his having seen the occurrence. It is relevant to state here that veracity of the witness was tested in lengthy cross-examination. No discrepancy,, contradiction or variation in material particulars was attained by defence. He was not shown related or interested witness. In absence of motivation, it was not permissible to exclude the evidence of the witness merely on account of his being resident of a place other than the site of incident. Therefore, his testimony cannot be ruled out of consideration on the assumption of his being a chance witness as suggested by the learned counsel for defence.

8. It was argued by the learned counsel for defence that Makhan Khan disclosed that he saw the incident from a considerable distance, as such it was not possible for him to identify the assailants. The objection carries no force as the witness was not questioned on this particular. Be that as it may, it is on record that the distance between the assailants and the witness was about 100 to 105 metres. It was day, time and the assailants being in an open place, could easily be identified. Whether the witness was not acquainted with the assailants, was not seriously challenged in cross-examination so as to suggest that he was stranger to all the assailants, as such it was improbable for him to identify each accused. The record shows that the assailants took some time to shatter the panel of the shutter and to inflict the fatal blows by firing on the deceased. On accomplishment of their objective, they were shown to have raised Lalkara that let anybody may come to take away the dead body. The chain of the circumstances in completion of the incident, leads to an inference that the assailants remained at the site of incident for a considerable time and by that time, an eye-witness, in the ordinary course of circumstances, would have identified the assailants. .

9. It was pointed out by the defence that the police recovered the shoes of the deceased, the pieces of broken panel and the crime empty from inside the room lying adjacent to the dead body. The witness failed to disclose the presence of the aforesaid articles as having been lying near the dead body. The failure of the witness to give details of the articles lying near the dead body, suggested, in view of the learned counsel, that Makhan Khan was not an eye-witness of the incident. May be that the details of the aforesaid articles were not given by the witness in his testimony but that by itself was not sufficient to exclude his testimony. In a grave incident like murder, one sustains shock, as such it is not expected that one should take careful notice of all minor details of the attending circumstances, including the things lying near the dead body. On the other hand, a person who otherwise may not be an eye-witness but comes on the scene on arrival of police takes notice of the position of the dead body and the things lying adjacent to it. Such person when later on, by pretending to be an eye-witness by mere giving picture of the dead body and details of the things lying adjacent to it, would not attain the status of an eye-witness. Such disclosure of details depends upon the perception of such person and it usually differs in degree.

10. Another ancillary fact referred to by the defence, relates to the duration between the infliction of injuries and the death of the deceased. The doctor gave the duration between the injuries and death as half to one hour. It was suggested that if the duration given by the doctor was correct, then it was very much likely that on arrival of the eye-witness, Abdul Khaliq should have been alive. The version of the eye-witness, on the other hand, was that he found Abdul Khaliq dead. There was a definite contradiction between the medical evidence and the testimony of the witness. It is correct that the doctor, in his testimony, described the aforesaid duration between the. infliction of injuries and the death, but it is well-accepted that the testimony of the doctor is to be evaluated like the testimony of any other witness. It is not to be given higher credence to condemn the testimony of an eye-witness. The evidence of the doctor is an expert's opinion. An expert's opinion is not taken as a gospel truth as it depends upon the skill, experience and caution taken by the expert in expressing his opinion. In present case, the deceased suffered fire injuries at the right lumber region. The diameter of the injury was 5 c.m.; viscera was protruding the wound. He further suffered five wounds on the left thigh. The left thigh was fractured. As a result of these injuries, which were the wounds of entrance, three other exit wounds were noticed below the left buttock. The cause of death was excessive haemorrhage and injury to vital organs. Right side of peritoneum, small intestines and right kidney were found ruptured. The aforesaid description of damage caused to the deceased, suggests that he must have expired within minutes. It is, therefore, wrong to suggest that the duration described by the doctor was a conclusive proof of the fact that it took half to one hour to the deceased to expire on receiving the fire-arm injuries. This conclusion finds support from the testimony of Mst. Maqbool Jan, in whose house the occurrence took place. Her presence on the scene is unquestioned. In answer to a question in cross-examination by the Public Prosecutor, she deposed that she saw Abdul Khaliq being murdered. He was bleeding from abdomen and legs and he was dead. This suggests that the deceased instantaneously succumbed to the fatal injuries.

11. Makhan Khan was also a witness of the recovery of the shoes of the deceased, recovered on June 23 i.e. two days after the incident. The witness vacillated on this point as he said that he saw nothing lying near the dead body of the deceased whereas the shoes recovered by the police two days thereafter in presence of the witness, were shown to have been recovered from the room of the incident of murder. The site plan prepared by the Patwari with the assistance of the witnesses described the place of recovery of shoes as the point shown in key notes Nos.8 and

9. The distance is 7' and 8' from the place of dead body. The apparent omission or contradiction, whatever it may be called, is of little importance. This is so as the dimension or size of the room is not disclosed in the key notes. The scale is also not given. It was a living room and there was evidence of the fact that Yaqub witness hid himself behind the beddings. This suggests that cots, beds and other households must halve been lying in the room. The shoes of the deceased might have been covered by the goods iying in the room. This is why that the police, which prepared the inquest report on spot and despatched the dead body for post-mortem, equally failed to recover the shoes of the deceased on the day of incident. This is not on record as to how the shoes of the deceased were put off. May be that at the time of the incident, the shoes were worn by the deceased and later on someone removed them as it is customary to remove the shoes of a dead person. Later on, under the advice of someone, it might have been realised that recovery of the shoes was an essential ingredient of the investigation. This is just an assumption in the sense that keeping in view the manner of incident, it was hardly likely for the victim to put off his shoes before or at the time of infliction of fire injuries. Be that as it may, omission to give a definite account of presence of the shoes at the time of recovery of dead body, by itself is no reason to discard the evidence. Minor discrepancies and failure to account for minor details do not matter when the witness is otherwise found as a witness of truth. Reference may be made to Khalid's case 1983 P Cr. L J

761. It was observed: "Besides, discrepancies on minor points are not really a proof of case being false. Instead these are bound to happen in case of truthful witnesses. Parrot like narration of the story can only be expected of from the tutored witnesses. Minor discrepancies are bound to be there as the power of observation, perception and retention varies in case of each individual. If the evidence on material particular is clear and convincing, then mis description or misstatement en minor points arc really of no significance."

12. It was suggested that Makhan Khan was mentioned as an assailant in the counter-attack made on Liaqat and Ra77aq on the same day. Reference was made to copy of the report of police under section 173, Cr.P.C. wherein Makhan Khan was described as one of the assailants in the counter-incident. The aforesaid document was placed on the file alongwith application of Muhammad Siddique, accused. It was not formally proved or tendered in evidence. Unless the document was duly proved or tendered in evidence, it could not be considered. Even otherwise, on the face of it, the document shows that the report of the counter-incident was made on 22nd of June. By that time, the first information report in the present case was already lodged and names of the eye-witnesses including Makhan Khan, were specifically described therein. May be that the counter-report including the name of Makhan Khan was made as a defence measure. This is so as it also includes the name of Saghir, another eye-witness, who accompanied Makhan Khan to the place of incident. Be that as it may, the copy of police report relating to the counter-incident provides n is , cc to seek exclusion of the testimony of Makhan Khan.

13. It is relevant to state here that the prosecution named four persons as eye-witnesses of the incident. They were Muhammad Yaqub, Makhan Khan, Saghir and Mst. Maqbool Jan. Muhammad Yaqub and Saghir were not produced as by the time of recording of evidence of prosecution. they had left the country. Mst. Maqbool Jan appeared as a witness. She gave some of the details of the incident but resiled from giving the description and names of the assailants. She. was declared hostile and cross-examined by the prosecution.

14. The rule of appreciation of evidence in criminal trials is that the evidence I of a hostile witness is not totally excluded from consideration. It has to be appreciated to find out the alleged guilt of the accused or his innocence. When such evidence provides support to the case of prosecution in some material particulars, it is permissible to rely upon the same to that extent. Mst. Maqbool Jan deposed that on the day of incident at 9-10 a.m. she was sick, as such was lying in her house. Abdul Khaliq, deceased, came running and entered her house. He was pursued,, by many people. They were in considerable number. She was unable to give their exact number. Abdul Khaliq entered the room all alone. He shut the door from inside. The assailants broke open the door, on which she raised hue and cry and asked the assailants not to break the shutters and not to fight. But despite her protest, the assailants shattered the door, on which she went into shock and became unconscious. She denied to,, identify the assailants including the accused present in the Court on the day of her testimony. In answer to a question in cross-examination by the Public Prosecutor, the witness denied having made statement before the police. She also denied presence of the eye witnesses including Makhan Khan and deposed that she personally knew Makhan and Saghir but she didn't see them on spot in that riot. She denied the suggestion of having been bribed by the defence. It is evident from her statement that she admitted the manner of the incident as she deposed that Khaliq, deceased, came running and entered the room and closed the door from inside. He was followed,, by various persons who broke open the door and killed him. The main features of the prosecution case to the extent of assault and killing of Abdul Khaliq was fully corroborated by this witness. However, she declined to disclose the identity of the assailants.

15. It is evident from the aforesaid testimony of Mst. Maqbool Jan that she resiled and declined to unfold the identity of the assailants on account of pressure or persuasion. The actual cause of her reselling from evidence has not been brought sufficiently on record, but the fact remains that the witness felt constrained to suppress the details of the assailants.

16. In presence of the aforesaid evidence, it is enjoined upon the Court to ensure that the assailants are not substituted,, by innocent persons. Therefore, an abundant caution has to be taken. As noticed earlier, the evidence on record, which connects the accused with the murder of deceased, is the testimony of Makhan Khan. Makhan Khan belonged to the tribe of the deceased and that alone was the link of the witness with the complainant party. The defence was unable to bring on record any interest or motive so as to believe that the witness was disposed to substitute the real culprits by shifting the liability of murder on the convicts alone and their associates. We find no such material on record. Therefore, it is not a case of any likely substitution.

17. It has to be frankly accepted that the prosecution failed to support the allegation of origin of the incident. There was no evidence to hold that Muhammad Anwar, accused, visited the shop of Abdul Khaliq and told him that the other accused had assembled in his shop; they were armed with guns as they had come to kill him. There is also no evidence to suggest that Abdul Khaliq left his shop on the warning of Muhammad Anwar. The evidence which connects the assailants,, with the alleged incident finds support on the point that the assailants pursued Abdul Khaliq who was running ahead of them for safety. On account of the chase, he came running to the house of Mst. Maqbool Jan, entered the room and shut the door from inside. The assailants while pursuing Abdul Khaliq, continuously tired. They broke a panel of shutter of the door of Mst. Maqbool Jan and killed Abdul Khaliq inside the room.

18. The other set of evidence pertains to the allegation of conspiracy and abetment ascribed to the acquitted accused. The learned counsel for the prosecution did not press to rely upon such evidence to uphold the charge of conspiracy. The evidence of conspiracy is rightly excluded by the trial Court as the chain of several acts suggested to constitute conspiracy, do not inspire confidence or their credibility. Therefore, it will be futile to analyse the evidence of the witnesses on that score.

19. According to prosecution, Sarfar.az accused, who is fugitive, was first to hit the left leg of Abdul Khaliq, deceased with his gun-firing. The other injuries were ascribed to Sain Siddique accused, who was prompted and persuaded by the other assailants tAnter the room and kill the deceased. Therefore, according to prosecution, Sarfaraz and Siddique were the principal assailants who killed Abdul Khaliq by their firing. In support of the aforesaid accusation, we are in possession of the testimony of Makhan Khan alone. On this score, the recovery of gun from Muhammad Siddique was made on March 23, 1986 i.e. nine months and two days after the incident. It was found in working order as per report of Director Forensic Science Laboratory. The aforesaid recovery was of no use, as the crime empty was not found,,, to have been fired from the same. The other recoveries are a .12 bore gun recovered at the instance of Ahmad Hussain, a hatchet recovered at the instance of Farakat Hussain alias Rafakat and four pellets which were found stuck in a wall of the house of Punnoo. These pellets were recovered on June

23. The house of Punnoo is shown on the way from Panjera Bazar to the place of occurrence. This position is described in the site plan at key-note No.10. The aforesaid recoveries were made in addition to the recoveries described elsewhere.

20. The trial Court convicted the appellants on the charge of murder of Abdul Khaliq and awarded them sentence of ten years' rigorous imprisonment. Under the provisions of the Islamic Penal Laws Act, offence of wilful murder was punishable by sentence of Qisas, Diyat or life imprisonment as contemplated under sections 5 and :1 of the Act. In order to award sentence of Oisas, it was enjoined upon the prosecution to prove its case beyond reasonable doubt by the testimony of two males, Muslim, adult eye-witnesses who were found Aadil and above board in Tazkiyya. In present case, the required number of witnesses is not available. Therefore, it is not a case of extreme penalty.

21. Section 24 of the Islamic Penal Laws Act postulates that when the Court is satisfied that the offence ascribed to the accused has been proved beyond reasonable doubt, but the required number of witnesses is not available in the case, it is empowered to give either of the sentences described in section

3. The sentences consist of sentence of death, life imprisonment, Diyat and Tazeer. The trial Court failed to assign any reason for awarding sentence of 10 years' rigorous imprisonment instead of Diyat or life imprisonment to the principal accused. It appears that the Court was under the impression that it enjoyed a discretion to impose any one of the penalties described under section 3 and that it was not obliged to assign reasons for awarding a penalty lesser than life imprisonment or Diyat, Such an impression was wrong as on satisfaction of proof of guilt of wilful murder, in absence of the required number of witnesses, one of the extreme punishments described under section 3 was to be imposed. In order to give a lesser sentence, reasons consisting of compassionate grounds have to be assigned as it was imperative.

22. In present case, as noticed earlier, the alleged origin of the incident resting on the conspiracy and leaving the shop of the deceased on the warning of Muhammad Anwar, was not proved. it was one of the strong circumstances constituting compassionate ground for lesser sentence. To meet the requirement of the, spirit of the Islamic law, it is, therefore, deemed expedient to award sentence of Diyat to Sain Siddique son of Abdul Karim, who is found guilty of wilful murder of Abdul Khaliq, deceased. The amount of Diyat shall be 2,916 Tolas 3 Mashas silver, the value of which, according to current rate in the market, comes to Rs.1,75,

000. The amount shall be paid to the legal heirs of Abdul Khaliq, deceased. The convict shall remain in jail till payment of the amount of l Diyat. In the alternative, he shall undergo rigorous imprisonment for 14 years. The order of the trial Court is modified to this extent.

23. The other convicts are visited with the liability of forming unlawful assembly and their partisan role to achieve the common object of killing Abdul Khaliq, deceased, as contemplated under section 149, Penal Code. It is on record that the convict-appellants and their associates were armed with guns, they pursued the victim and kept on running after him. They continuously fired while in pursuit. Finally, when they reached the place of incident, they joined the principal offenders in killing the deceased. They were also shown to have raised Lalkaras even after the killing. The attribution of Lalkaras may not be an overt act towards achievement of the end of murder but all other actions preceding the murder of Abdul Khaliq, brought them in the fold of unlawful assembly, having their common object and its prosecution. One of the principal offenders is visited with the sentence of Diyat and, in the alternative, rigorous imprisonment for 14 years. The associates df the principal offenders, obviously, cannot be visited with sentence of same quantum. Therefore, suffice it to sustain the sentence of rigorous imprisonment for the period already fixed by the trial Court. As a result of the aforesaid conclusions, the appeal addressed by Muhammad Siddique and others finds no favour. It is, therefore, dismissed. The petition for enhancement of sentence is partly accepted, by virtue of which the sentence of (Sain) Muhammad Siddique son of Abdul Karim alias Abdul resident of Gala Samhar, is modified in the aforesaid manner. N.H.Q./116/Sh.CA. Order accordingly.