September 2023

PLJ 2023 Cr.C. (Note) 244
[Lahore High Court, Multan Bench]

Present: Ch. Abdul Aziz and Sohail Nasir, JJ.

SHABBIR HUSSAIN alias Sain and another--Appellants

versus

STATE and another--Respondents

Crl. Appeal No. 349 of 2014 and Murder Reference No. 9
of 2018, heard on 08.03.2022.

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302 & 324--Un-natural conduct of witnesses--Conduct of a witness immediately after the occurrence is a relevant fact--Injured witness is not always truthful witness--Appreciation of evidence--Acquittal of--Prosecution's case is revolving around the statements of PW-3--He is not an eyewitness of the crime as his declaration is based on hearsay--Immediately after the occurrence the conduct of both witnesses remained highly objectionable therefore they cannot be relied upon--If both the eyewitnesses alongwith two others were present at crime scene and within their view assailants also caused injuries to deceased, there was no question for them to leave deceased unattended and if they did it, in fact they were responsible for criminal negligence as it was their duty to shift him to hospital--They waited the death of a young man and in the morning when the gentleman was no more in this world, they opted to inform his near and dear--Conduct of a witness immediately after the occurrence is a relevant fact and can adversely affect to his/her credibility if found unnatural--Injury may prove his presence at crime scene but for that reason he cannot be marked with stamp of integrity--He maintained that three other persons were not involved in this case--This reply from the mouth of PW has also confirmed animportant fact that Injured PW-4 initially was an accused but later on transposed as a prosecution witness--Medical evidence, when ocular account has been disbelieved, requires no deliberations--Prosecution had failed to prove its case beyond reasonable doubt--Appellant is acquitted--Appeal allowed.

[Para 16, 17, 22, 23, 25, 27 & 28] A, B, C, D, E, F, G, H & I

Khawaja Qaisar Butt, Advocate for Appellants.

Ch. Muhammad Akbar, Additional Prosecutor General for State.

Nemo for Complainant.

Date of Hearing: 08.03.2022

Judgment

Shabbir Hussain alias Sain (appellant) along with Munir and Haider Abbas had faced trial in case FIR[1] No.173 (PC/1) recorded on 03.06.2009 under Sections 302/148/149, PPC[2] at Police Station Sadar Multan on the complaint of Hassan Abbas (Pw-3) for the allegations of commission of ‘Qatl-i-Amd’[3] of Qaswar Abbas (brother of complainant). On conclusion thereof vide judgment dated 30.06.2014 passed by the learned Additional Sessions Judge, Multan Shabbir Hussain alias Sain(appellant) was convicted and sentenced as under:--

Ø Under Section 302, PPC to death and to pay an amount of Rs. 2,00,000/- (two lacs) as compensation in terms of Section 544-A, Cr.P.C[4] to the legal heirs of deceased and in default thereof to further undergo six months simple imprisonment.

Ø Under Section 324, PPC to undergo five years RI and fine of Rs.10000/- (ten thousand). In default of payment of fine he was ordered to further undergo two months Simple Imprisonment. Benefit of Section 382-B Cr.P. C. was also extended.

2. Munir Hussain and Haider Abbas however were acquitted from the case on the basis of same judgment.

3. Being dissatisfied form his conviction Shabbir Hussain alias Sain (appellant) has approached this Court through Criminal Appeal (349 of 2014) whereas the learned trial court has also submitted murder reference (09 of 2018) in terms of Section 374, Cr.P.C. As both the matters are outcome of one and the same decision hence being decided together by way of this single judgment.

4. Facts of the case are that Muhammad Manzoor Sub Inspector (PW-18) on 03.06.2009 upon receipt of information of the occurrence arrived at ‘Basti Dhor Kot’ where Hassan Abbas (Pw-3) appeared before him and made a statement (PC). He maintained that he and his brother Qaswar Abbas (deceased) aged about 31/32 years were running the business of property; on 02.06.2009 after ‘Maghrib Wela’[5] they were present in their house when Muhammad Javed alias Mudda and Batloo sons of Abdul Razzaq son Ghulam Ali (Pw-4) came to see Qaswar Abbas; in the meantime his/complainant's brother Nasir Abbas also came there; Muhammad Javed alias Mudda, Batloo and Qaswar Abbas then left the house together; Qaswar Abbas did not return so they/complainant etc. slept in the house; on 03.06.2009 at about 05:30 am, Abdul Razzaq s/o unknown (Pw-4) came to their house and disclosed that the dead body of Qaswar Abbas was lying at the back side of cattle shed of his house; he/complainant called Nasir Abbas and they went at the relevant place where the dead body of Qaswar Abbas was lying in pool of blood; he was having a deep wound near to his heart on left side; Abdul Razzaq told that last night in ‘Dhor Kot Chowk’ there was a fight because of a dispute with Shabbir Ahmad (appellant); QaswarAbbas, Muhammad Javed alias Mudda and Batloo were sitting in the ‘Chowk[6]’ and at that occasion there was exchange of hot words between Shabbir Ahmad (appellant) on one side and Muhammad Javed alias Mudda and Batloo the sons of Abdul Razzaq on other side; Shabbir Ahmad (appellant) threw a challenge that he would come after a short while to take revenge; later on Shabbir Ahmad armed with ‘Churi[7]’, his brother Munir in possession of dagger and Haider Abbas s/o Bashir Ahmad equipped with ‘Sota[8]’ came there; when saw them Muhammad Javed alias Mudda and Batloo ran from there; Shabbir Ahmad (appellant) inflicted an injury with ‘Churi’ on the left side of heart of Qaswar Abbas; second blow by him was made on the abdomen of Abdul Razzaq s/o Muhammad Ishaq (Pw-5); Munir Ahmad also caused injuries with dagger on the back of Abdul Razzaq; on hue and cry Muhammad Iqbal and Abdul Aziz came there; Muhammad Iqbal had shifted his brother Abdul Razzaq son of Muhammad Ishaq (Pw-5) to Nishtar Hospital. Ultimate version of Hassan Abbas/complainant was that he had a suspicion that his brother Qaswar Abbas was committed to ‘Qati-e-Amd’ by Shabbir Ahmad alias Sain (appellant), Munir Ahmad, Haider Abbas, Batloo, Muhammad Javed alias Mudda and Abdul Razzaq son of Ghulam Ali (PW-4).

5. The above statement after endorsement by Manzoor Ahmad Sub-Inspector was sent to Police Station through Sohail Anwar Constable on the basis of which FIR (PC/1) was recorded by WaseemAkram ASI (PW-13).

6. Investigation of the case was started by Muhammad Manzoor Sub-Inspector (Pw-18) who made formal proceedings with regard to preparation of injuries statement and shifting of dead body to hospital. He arrested ShabbirHussain alias Sain on 15.08.2009 who during investigation on 20.08.2009 got recovered Churi (P-5) that was made into sealed parcel and secured vide a memo. (PE).

7. Haider Abbas accused was arrested on 05.05.2011 by Gulzar Hussain Sub-Inspector (PW-17) who on 06.05.2011 got recovered the ‘Sota’ (P-4) that was secured vide a memo. (PQ).

8. Munir Ahmad was arrested on 16.07.2011 by Muhammad Zameer Sub-Inspector (PW-16) who on 20.07.2011 also got recovered a dagger (P-6) that was seized vide a memo. (PK).

9. Initially a report under Section 173 Cr.P.C (Challan) was submitted against Shabbir Ahmad alias Sain (appellant). A charge under Sections 302/324, PPC was framed against him on 11.02.2010 which he pleaded not guilty. Later on supplementary ‘Challan’ was submitted against Munir Hussain and subsequent thereto a joint charge against Shabbir Ahmad alias Sain and Munir Hussain was framed on 03.03.2011 which they also not pleaded guilty. The final ‘Challan’ was submitted after the arrest of Haider Abbas so ultimately on 05.09.2011 a charge against appellant and his co-accused was framed under Sections 302/324, PPC which they did not plead guilty and demanded the trial.

10. In order to prove its case prosecution had produced as many as eighteen witnesses.

11. Appellant and his co-accused were called upon for their examinations under Section 342 Cr.P.C who pleaded their false involvement. Version of Shabbir Ahmad alias Sain to the question that why this case was against him and why the witnesses deposed against him was as under:--

"I have been falsely involved in this case. I was not present at the place of occurrence, on the day of occurrence. I have no concerned with the alleged occurrence. I and my co-accused have been involved in this case due to enmity witnesses Abdur Razzaq, Javed alias Mida and Butlu. I have been involved in this case falsely with the connivance complainant with PWs. I am innocent"

12. Appellant opted not to appear in terms of Section 340(2), Cr.P.C or to produce defence evidence.

13. Learned counsel for appellant contended that impugned judgment is against law and facts; appellant is innocent as there is no convincing incriminating material against him; evidence produced by prosecution is not enough to sustain conviction; statements of eye- witnesses are suffering from serious contradictions; even the medical evidence is in conflict to the ocular account; it was the duty of prosecution to prove its case beyond reasonable doubt but said obligation was not discharged; impugned judgment is contrary to law and settled principles for dispensation of criminal justice; reasons assigned by the learned trial court while convicting the appellant are arbitrarily and fanciful hence not sustainable.

14. On the other hand learned Additional Prosecutor General argued that on the basis of qualitative evidence prosecution has successfully proved its case; no enmity whatsoever exists between appellant and the witnesses therefore question of false involvement of appellant does not arise; as Qaswar Abbas left the house in the company of his two friends so there was nothing to worry for complainant who in the following morning when got the information of tragedy, he informed the police immediately; Abdul Razzaq son of Ghulam Ali (Pw.4) and Abdul Razzaq s/o Muhammad Ishaq(Pw-5) faced the test of cross-examination in a remarkable manner and defence was not successful to shatter their credibility; their statements do not suffer from any contradiction or infirmity as they have been found consistent on the manners of occurrence; medical evidence coupled with recovery of ‘Churi’ at the instance of appellant are strong corroborative pieces of evidences. They finally argued that the learned trial court by assigning good reasons have rightly convicted the appellant hence impugned judgment requires no interference.

15. HEARD.

16. Prosecution's case is revolving around the statements of Hassan Abbas (Pw-3), Abdul Razzaq s/o Ghulam Ali (Pw-4) and Abdul Razzaq son of Muhammad Ishaq(Pw-5). So far as Hassan Abbas is concerned, admittedly he is not an eye-witness of the crime as his declaration is based on hearsay.

17. Abdul Razzaq s/o Ghulam Ali (PW-4) is the father of Muhammad Javed alias Mudda and Batloo with whom deceased left the house whereas Abdul Razzaq s/o Muhammad Ishaq (P -5) is an injured witness. Statements of both these witnesses show that on 02.06.2009 at about 10:00/11:00 pm the occurrence had taken place. However immediately after the occurrence the conduct of both these witnesses remained highly objectionable therefore they cannot be relied upon.

18. Abdul Razzaq s/o Ghulam Ali (PW-4) in his examination-in-chief maintained as under:--

"Then I along with my sons Javed and Naveed ran away from the spot towards our house and we bolted the door while the accused persons abuses us outside the house. On the next morning my son Arif went outside the house for offering Fajar prayer and he saw that the dead body of Qaswar Abbas deceased was lying in Jawar crop, which was already harvesting. Muhammad Arif my son informed me about the dead body of Qaswar Abbas deceased. Then I informed brothers of deceased namely Hassan Abbas and Nasir in their house."

19. In cross-examination he responded as under: -

"I did not take Qaswar deceased to the Hospital, while Qaswar deceased was shifted to the hospital by his brother in the morning on the next day. I have no visiting terms in the house of Qaswar deceased. I did not inform the family members of Qaswar deceased regarding the injury received by him in the night however I informed them on the next morning. I could not inform the family members of Qaswar regarding injury because after the occurrence I went to my house and the accused remained present at my house during night. I did not inform police in the night. I informed the family of Qaswar in the morning at 05:30 A.M to his brother namely Hassan"

20. Coming to the statement of Abdul Razzaq s/o Muhammad Ishaq (PW.5), he, in his examination-in-chief, stated as under:--

"Then Shabbir Ahmad accused gave Churi blow that hit on my abdomen. At that time I was semi unconscious. Then Shabbir Ahmad and Munir Ahmad accused followed Javed and Naveed PWs. In the meanwhile my brother Muhammad Iqbal came there and shifted me to Hospital in injured condition. I was medically examined by the Doctor. On the next day in the morning my brother told me that Qaswar Abbas had succumbed to the injuries"

21. In cross-examination he made following replies: -

"I was shifted to Hospital by my brother lqbal but I do not know on which vehicle I was shifted to the Hospital. I gained my consciousness on the next day of the occurrence. I do not know if Qaswar PW/ deceased is involved in number of cases. I did not lodge any independent FIR regarding this occurrence. I was told by my brother that Qaswar Abbas has expired"

22. If both the eye-witnesses along with Javed and Batloo were present at crime scene and within their view assailants also caused injuries to Qaswar Abbas, there was no question for them to leave Qaswar Abbas unattended and if they did it, in fact they were responsible for criminal negligence as it was their duty to shift him to hospital. For the sake of arguments if it is considered that they did not deem it appropriate, at least they had the opportunity to inform the police and even in this context their conduct has been observed by us highly abnormal. They waited the death of a young man and in the morning when the gentleman was no more in this world, they opted to inform his near and dear.

23. It is the settled principle that conduct of a witness. immediately after the occurrence is a relevant fact and can adversely affect to his/her credibility if found unnatural. Abdul Razzaq s/o Muhammad Ishaq (PW-5) may be an injured witness but it does not mean that whatever he stated that was truth and not less than truth. The injury may prove his presence at crime scene but for that reason he cannot be marked with stamp of integrity. His testimony is to be tested and appraised on the same principles applied for appreciation of any other prosecution witness[9].

24. According to FIR Munir Ahmad the co-accused of appellant also inflicted injuries while giving blows on the back of Abdul Razzaq s/o Muhammad Ishaq(PW-5). Surprisingly when came in witness box, both the witnesses omitted the allegations against Munir Ahmad and attributed all the injuries to appellant. Conflicting them still version of Hassan Abbas (PW-3) was that he was informed that Munir Ahmad also inflicted blows on Abdul Razzaq (PW-5). This contrast position taken by three witnesses is also a serious blow for prosecution.

25. Muhammad Javed alias Mudda and Batloo with whom deceased left the house, as appears from FIR, were the prime suspects of this crime. Hassan Abbas (PW-3) in cross-examination maintained that on the next day through a supplementary statement, he maintained that Javed, Naveed and Abdul Razzaq s/o Ghulam Ali
(PW-4) were not involved in this case. This reply from the mouth of Hassan/Abbas has also confirmed an important fact that Abdul Razzaq s/o Ghulam Ali (PW-4) initially was an accused but later on transposed as a prosecution witness.

26. The discussions made above take us to a final verdiet that testimony of both the eye-witnesses has no worth hence they cannot be relied upon.

27. Medical evidence, when ocular account has been disbelieved, requires no deliberations for the simple reasons that at the most it is corroborative and not conclusive piece of evidence.

28. Summing up the discussions and deliberations made above, we hold that prosecution had failed to prove its cause beyond reasonable doubt against Shabbir Hussain alias Sain (appellant) hence Criminal Appeal is allowed. Impugned judgment to the extetn of conviction of appellant is set aside. He is acquitted from the cse. He is in custody and shall be realieased forthwith if not required in any other case. The case property shall be dealt with in the same manners as directed by the learned trial Court. The death sentence is NOT CONFIRMED and murder reference is answered in NEGATIVE.

(M.A.B.) Appeal allowed

[4]. Code of Criminal Procedure (Act V of 19898)

[9]. Said Ahmad vs. Zammurd Hussain 1981 SCMR 795 and Muhammad Hayat vs. State
1996 SCMR 1411.