PLJ 2011 Cr.C. (Lahore) 775 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Kh. Muhammad Sharif, CJ and Kh. Imtiaz Ahmed, J.
MAZHAR HUSSAIN--Appellant
versus
STATE--Respondent
Crl. Appeal No. 208 of 2004 and M.R. No. 673 of 2004, heard on 5.4.2010.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence recorded against appellant by trial Court--Challenge to--It was not a case of sinlge shot but of repeated shots--Ocular account corroborated by medical evidence--Eye-witnesses have corroborated each other--Mere relationship of deceased with eye-witnesses is no criteria to discard their testimony--It was a case of single accused--In a case of such like nature, substitution is a rare phenomenon--How the kith and kin of the deceased would leave the actual killer and falsely implicate an innocent person--Occurrence had taken in broad day light--Relationship between parties is admitted--No question of mistaken identity--Appellant remained absconder for six years and six months--Prosecution has proved its case against appellant to its hilt though ocular account which is fully corroborated by medical evidence, motive as also long abscondance spreading over more than six years--Appeal dismissed--Conviction and sentence was maintained--Death sentence was confirmed. [P. 780] A, B, C, D & E
Ch. Zahoor Hussain, Advocate for Appellant.
Mr. Sabah Mohy-ud-Din Khan, Advocate for Complainant.
Mr. Nazir Abbasi, Standing Counsel for State.
Date of hearing: 5.4.2010.
Judgment
Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No. 208 of 2004 filed by Mazhar Hussain, appellant, who was convicted by learned Sessions Judge, Islamabad vide his judgment dated 21.4.2004 under Section 302(b) PPC and sentenced to death and to pay Rs. 300,000/- as compensation, to be paid to the legal heirs of the deceased and in default thereof six months SI.
Murder Reference No. 763 of 2004 for confirmation or otherwise of death sentence of Mazhar Hussain appellant and Criminal Revision No. 96 of 2004 filed by the complainant shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Manzoor Hussain complainant in the complaint Ex.PC are that he is resident of Nai Abadi Dhok Haider Ali Dakhli Sehala Islamabad and is tailor by profession. On the fateful day, he was present in the house of his in laws in connection with "Chehlum" of his mother in law; his brother Muhammad Ismail (deceased) was also present there and sitting on a chair was noting "Bhajies" when at about 11.30 a.m. Mazhar Hussain accused armed with .30-bore pistol came there and fired two successive pistol shots at Muhammad Ismail hitting him on his chest, who on receipt of same fell down and expired at the spot. It was alleged that Mazhar Hussain accused has murdered Muhammad Ismail at the instance of Kh. Asghar who was also present at the spot.
The motive as narrated by the complainant is that about 7/8 months prior to the occurrence, a fight took place between Muhammad Islam maternal nephew of complainant and Mazhar Hussain accused, and his two brothers, as a result of said fight Muhammad Islam lost sight of his one eye; a case was registered against Mazhar Hussain accused and his brother and they were arrested in the said case; his brothers were bailed out while Mazhar Hussain remained in judicial lockup and thereafter he was also allowed bail on the basis of compromise and subsequently Rs. 30,000/- were paid to the injured as compensation. The accused was allegedly aggrieved in the sense that why the compromise had been made against Rs. 30,000/- for which the accused developed grudged against the deceased and committed his murder.
3. The investigation of this case was taken over by Zawar Hussain SI. After receipt of information about the occurrence he proceeded to the place of occurrence, recorded the statement Ex.PC of Manzoor Hussain PW and sent the same to the police station for registration of formal FIR. He collected the blood-stained earth from the spot and secured the same vide memo. Ex.PF. He also took into possession two .30-bore empties P-6 and P-7 vide memo. Ex.PG. The Investigator inspected the dead body, prepared inquest report Ex.PK and sent the dead body to the mortuary for post-mortem examination. The site-plan is Ex.PM. He searched for the accused but he was not available and he obtained warrant of arrest of the accused. Then the investigation of this case was entrusted to Abdur Rauf SI. On 28.9.2003, he received secret information about presence of accused at Toll plaza Rawat; a truck Bearing No. 9291/RIN came from Faizabad side which was stopped, the accused Mazhar Hussain was driving said truck; he was arrested; on his personal search, currency notes to the tune of Rs. 1500/- Ex.P-5, a driving license P-1 in the name of Muhammad Sharif, two copies of national identity card P-2 and P-3 were taken into possession vide memo. Ex.PB. During physical remand, on 2-10-2003 accused got recovered pistol .30-bore Ex.PA which was taken into possession vide memo. Ex.PH and after completion of formal investigation the accused was sent to face the trial.
4. At the trial, prosecution in order to prove its case produced as many as 15 witnesses learned District Attorney after tendering in evidence report of Chemical Examiner Ex.PN, report of Serologist Ex.PP and that of Forensic Science Laboratory Ex.PQ closed the prosecution case. Then the statement of the accused u/S. 342 Cr.P.C. was recorded in which he pleaded his innocence. However, after conclusion of the trial, learned trial Court convicted and sentence the accused as stated above.
5. After having read the entire prosecution evidence, statement of the accused recorded u/S. 342 Cr.P.C. and other material available on record, learned counsel for appellant submits that appellant has been falsely implicated in this case. Further submits that there is conflict between ocular account and medical evidence in as much as according to site-plan, there is distance of 3/4 feet between the deceased and the assailant while neither any blackening nor charring or tattooing was around the wounds was observed by the doctor who conducted post-mortem examination on the dead body of the deceased. It is added that dimension of injuries on the person of the deceased is different when according to case of the prosecution; both the shots were fired by the appellant from the same distance. According to learned counsel, in fact two different weapons were used at the time of occurrence.
It is next submitted that according to case of the prosecution, the occurrence had taken place at 11.30 a.m. on 8.5.1997, post-mortem examination on the dead body of the deceased was conducted at 3.30 p.m. which ended at 4.20 p.m., the same day so the duration given by the doctor between death and post-mortem as within 15 hours does not fit in with the time of occurrence as given by the prosecution.
According to learned counsel, the eye-witnesses were not present at the spot.
Learned counsel argues that the motive as set up by the prosecution is concocted and false one in as much motive given by the complainant in the FIR was different to that introduced before the trial Court. Further submits that the appellant had no motive or ill will or rancor against the appellant to commit the murder of the deceased. Learned counsel has drawn our attention to cross-examination of PW. 5 to submit that it was a case of sudden incident, what happened just before the occurrence and how the incident generated, it is anybody's guess and that to prove the motive, the best witness was Muhammad Islam who was never produced by the prosecution and except the complainant, there is no other independent corroboration to the testimony of complainant qua the motive.
The nutshell of arguments of learned counsel for the appellant is that the prosecution has failed to prove its case against the appellant and he is entitled to acquittal.
It is next argued that if the submissions made by him with regard to acquittal of the convict do not find favour with the Court then it is not a case of capital punishment rather of lesser sentence. He has termed the extenuating circumstances such as motive shrouded in mystery, it was a case of sudden flare up and that the appellant acted under the direction of his acquitted co-accused namely Kh. Asghar who is his uncle.
6. On the other hand, learned counsel for the complainant assisted by learned Deputy Prosecutor General assisted by learned counsel submits that it is a case of promptly lodged FIR; the appellant had admitted the occurrence; the motive is also admitted; FIR is not an exhaustive document; the occurrence had taken place in broad day light; there was no question of mistaken identity; ocular account is fully corroborated by medical evidence and a big circumstance against the appellant is abscondence for long 6 years.
7. We have heard learned counsel for the parties and have gone through the record with their able assistance.
In the instant case the occurrence had taken place at 11.30 a.m. on 8.5.1997 within the revenue estate of dhok Haider Ali which is at a distance of 4 kilometers from Police Station Sehala District Islamabad while the matter was reported to the police by Manzoor Hussain outside the Police Station at 12.30 p.m. the same day through written complaint Ex.PC and formal FIR Ex.PC/1 was recorded by Zafar Iqbal, SI.
The deceased in this case is Muhammad Ismail who was real brother of Manzoor Hussain complainant. The other eye-witness is Muhammad Akram who appeared as PW.5. He is nephew of the deceased as also complainant. Sheraz son of deceased was given up as being un-necessary. Kh. Asghar Ali, the accused of abetment was acquitted by the trial Court under Section 265-A, Cr.P.C.
Two crime empties of .30-bore pistol were taken into possession vide memo. Ex.PG. The appellant was arrested on 28.9.2003 that is 6 years and six months after the occurrence. A .30 bore pistol was recovered on his pointation which was secured vide memo. Ex.PH on 2.10.2003.
Dr. Muhammad Arshad Khan PW. 13 conducted post-mortem examination on the dead body of the deceased at 3.30 p.m. on 8.5.1997 and found two fire-arm injuries on his person. The duration between injuries and death was opined as immediate while between death and post-mortem was 15 hours.
Learned counsel for the appellant has laid much stress that motive in this case remained shrouded in mystery and dishonest improvements were made while appearing before the trial Court and that the appellant acted under the command of his uncle Kh. Asghar Ali. It is by now well settled that motive is always in the mind of the accused and he is the best judge to select the time, the place and the person from whom he has to get the revenge. The motive is almost admitted by the appellant in his statement under Section 342 Cr.P.C. Even otherwise, weak or insufficiency of motive cannot be considered as a mitigating circumstance. It is correct that detailed motive was not given in the FIR and was introduced before the trial Court but not a single contradiction was brought on record between the FIR and the statement made by the complainant before the trial Court.
Kh. Asghar the accused of abetment was found innocent by the Police so there was no question that the appellant acted under the influence of his co accused.
It is not a case of single shot but of repeated shots. The appellant seems to be a man of desperate character in as much as in the motive case, he by firing shot damaged the eye of Islam and got his acquittal on the basis of compromise and with the grouse that his family had paid Rs. 30,000/- for compromise, he committed the murder of the deceased as he was pursuing the earlier case.
It is also important to note here that at the time of arrest of the appellant, driving license in the name of Muhammad Sharif having photograph of Mazhar Hussain as also two identity cards, one in the name of Muhammad Sharif bearing the photograph of Mazhar Hussain accused and other in his own name were recovered from his possession.
It was vociferously argued by learned counsel for the appellant that dimension on injuries on the person of the deceased is different when both the shots were allegedly fired by the appellant while standing at same place. Here we may reproduce few lines from the cross-examination of PW. 13:
"It is correct that if missiles are fired from the same arm, from the same distance the diameter of the entry wound would be the same. However, the target can move after being hit by the first missile and that would cause different dimension."
The ocular account furnished by the eye-witnesses is fully corroborated by medical evidence. Both the eye-witnesses have corroborated each other on all material points. Despite lengthy cross-examination no dent could be created in prosecution story. Mere relationship of the deceased with the eye-witnesses is no criteria to discard their testimony if it is otherwise confidence inspiring.
It is a case of single accused. In a case of such like nature, substitution is a rare phenomenon. How the kith and kin of the deceased would leave the actual killer and falsely implicate an innocent person. The occurrence had taken place in broad day light. Relationship between the parties is admitted. So there was no question of mistaken identity.
There is yet another big circumstance against the appellant and that is that he remained absconder for six years and six months in as much as the occurrence had taken place on 8.5.1997 while the appellant was arrested on 28.9.2003.
It is also important to note here that at the time of arrest of the appellant, driving license in the name of Muhammad Sharif having photograph of Mazhar Hussain as also two identity cards, one in the name of Muhammad Sharif bearing the photograph of Mazhar Hussain accused and other in his own name were recovered from his possession.
After having analyzed the entire prosecution evidence and attending to the submissions made by learned counsel for the appellant, we are fully convinced that the prosecution has proved its case against the appellant to its hilt though ocular account which is fully corroborated by medical evidence, motive as also the long abscondance spreading over more than six years.
We are also satisfied in our mind that there exists no extenuating circumstance for lesser sentence.
Resultantly criminal appeal filed by the convict appellant is dismissed, the conviction and sentence recorded against him by the trial Court vide impugned judgment is maintained in toto, the death sentence is CONFIRMED and Murder Reference is answered in the AFFIRMATIVE.
Criminal Revision No. 96 of 2004 filed by the complainant for enhancement of amount of compensation is dismissed.
(A.S.) Appeal dismissed.
[Rawalpindi Bench Rawalpindi]
Present: Kh. Muhammad Sharif, CJ and Kh. Imtiaz Ahmed, J.
MAZHAR HUSSAIN--Appellant
versus
STATE--Respondent
Crl. Appeal No. 208 of 2004 and M.R. No. 673 of 2004, heard on 5.4.2010.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence recorded against appellant by trial Court--Challenge to--It was not a case of sinlge shot but of repeated shots--Ocular account corroborated by medical evidence--Eye-witnesses have corroborated each other--Mere relationship of deceased with eye-witnesses is no criteria to discard their testimony--It was a case of single accused--In a case of such like nature, substitution is a rare phenomenon--How the kith and kin of the deceased would leave the actual killer and falsely implicate an innocent person--Occurrence had taken in broad day light--Relationship between parties is admitted--No question of mistaken identity--Appellant remained absconder for six years and six months--Prosecution has proved its case against appellant to its hilt though ocular account which is fully corroborated by medical evidence, motive as also long abscondance spreading over more than six years--Appeal dismissed--Conviction and sentence was maintained--Death sentence was confirmed. [P. 780] A, B, C, D & E
Ch. Zahoor Hussain, Advocate for Appellant.
Mr. Sabah Mohy-ud-Din Khan, Advocate for Complainant.
Mr. Nazir Abbasi, Standing Counsel for State.
Date of hearing: 5.4.2010.
Judgment
Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No. 208 of 2004 filed by Mazhar Hussain, appellant, who was convicted by learned Sessions Judge, Islamabad vide his judgment dated 21.4.2004 under Section 302(b) PPC and sentenced to death and to pay Rs. 300,000/- as compensation, to be paid to the legal heirs of the deceased and in default thereof six months SI.
Murder Reference No. 763 of 2004 for confirmation or otherwise of death sentence of Mazhar Hussain appellant and Criminal Revision No. 96 of 2004 filed by the complainant shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Manzoor Hussain complainant in the complaint Ex.PC are that he is resident of Nai Abadi Dhok Haider Ali Dakhli Sehala Islamabad and is tailor by profession. On the fateful day, he was present in the house of his in laws in connection with "Chehlum" of his mother in law; his brother Muhammad Ismail (deceased) was also present there and sitting on a chair was noting "Bhajies" when at about 11.30 a.m. Mazhar Hussain accused armed with .30-bore pistol came there and fired two successive pistol shots at Muhammad Ismail hitting him on his chest, who on receipt of same fell down and expired at the spot. It was alleged that Mazhar Hussain accused has murdered Muhammad Ismail at the instance of Kh. Asghar who was also present at the spot.
The motive as narrated by the complainant is that about 7/8 months prior to the occurrence, a fight took place between Muhammad Islam maternal nephew of complainant and Mazhar Hussain accused, and his two brothers, as a result of said fight Muhammad Islam lost sight of his one eye; a case was registered against Mazhar Hussain accused and his brother and they were arrested in the said case; his brothers were bailed out while Mazhar Hussain remained in judicial lockup and thereafter he was also allowed bail on the basis of compromise and subsequently Rs. 30,000/- were paid to the injured as compensation. The accused was allegedly aggrieved in the sense that why the compromise had been made against Rs. 30,000/- for which the accused developed grudged against the deceased and committed his murder.
3. The investigation of this case was taken over by Zawar Hussain SI. After receipt of information about the occurrence he proceeded to the place of occurrence, recorded the statement Ex.PC of Manzoor Hussain PW and sent the same to the police station for registration of formal FIR. He collected the blood-stained earth from the spot and secured the same vide memo. Ex.PF. He also took into possession two .30-bore empties P-6 and P-7 vide memo. Ex.PG. The Investigator inspected the dead body, prepared inquest report Ex.PK and sent the dead body to the mortuary for post-mortem examination. The site-plan is Ex.PM. He searched for the accused but he was not available and he obtained warrant of arrest of the accused. Then the investigation of this case was entrusted to Abdur Rauf SI. On 28.9.2003, he received secret information about presence of accused at Toll plaza Rawat; a truck Bearing No. 9291/RIN came from Faizabad side which was stopped, the accused Mazhar Hussain was driving said truck; he was arrested; on his personal search, currency notes to the tune of Rs. 1500/- Ex.P-5, a driving license P-1 in the name of Muhammad Sharif, two copies of national identity card P-2 and P-3 were taken into possession vide memo. Ex.PB. During physical remand, on 2-10-2003 accused got recovered pistol .30-bore Ex.PA which was taken into possession vide memo. Ex.PH and after completion of formal investigation the accused was sent to face the trial.
4. At the trial, prosecution in order to prove its case produced as many as 15 witnesses learned District Attorney after tendering in evidence report of Chemical Examiner Ex.PN, report of Serologist Ex.PP and that of Forensic Science Laboratory Ex.PQ closed the prosecution case. Then the statement of the accused u/S. 342 Cr.P.C. was recorded in which he pleaded his innocence. However, after conclusion of the trial, learned trial Court convicted and sentence the accused as stated above.
5. After having read the entire prosecution evidence, statement of the accused recorded u/S. 342 Cr.P.C. and other material available on record, learned counsel for appellant submits that appellant has been falsely implicated in this case. Further submits that there is conflict between ocular account and medical evidence in as much as according to site-plan, there is distance of 3/4 feet between the deceased and the assailant while neither any blackening nor charring or tattooing was around the wounds was observed by the doctor who conducted post-mortem examination on the dead body of the deceased. It is added that dimension of injuries on the person of the deceased is different when according to case of the prosecution; both the shots were fired by the appellant from the same distance. According to learned counsel, in fact two different weapons were used at the time of occurrence.
It is next submitted that according to case of the prosecution, the occurrence had taken place at 11.30 a.m. on 8.5.1997, post-mortem examination on the dead body of the deceased was conducted at 3.30 p.m. which ended at 4.20 p.m., the same day so the duration given by the doctor between death and post-mortem as within 15 hours does not fit in with the time of occurrence as given by the prosecution.
According to learned counsel, the eye-witnesses were not present at the spot.
Learned counsel argues that the motive as set up by the prosecution is concocted and false one in as much motive given by the complainant in the FIR was different to that introduced before the trial Court. Further submits that the appellant had no motive or ill will or rancor against the appellant to commit the murder of the deceased. Learned counsel has drawn our attention to cross-examination of PW. 5 to submit that it was a case of sudden incident, what happened just before the occurrence and how the incident generated, it is anybody's guess and that to prove the motive, the best witness was Muhammad Islam who was never produced by the prosecution and except the complainant, there is no other independent corroboration to the testimony of complainant qua the motive.
The nutshell of arguments of learned counsel for the appellant is that the prosecution has failed to prove its case against the appellant and he is entitled to acquittal.
It is next argued that if the submissions made by him with regard to acquittal of the convict do not find favour with the Court then it is not a case of capital punishment rather of lesser sentence. He has termed the extenuating circumstances such as motive shrouded in mystery, it was a case of sudden flare up and that the appellant acted under the direction of his acquitted co-accused namely Kh. Asghar who is his uncle.
6. On the other hand, learned counsel for the complainant assisted by learned Deputy Prosecutor General assisted by learned counsel submits that it is a case of promptly lodged FIR; the appellant had admitted the occurrence; the motive is also admitted; FIR is not an exhaustive document; the occurrence had taken place in broad day light; there was no question of mistaken identity; ocular account is fully corroborated by medical evidence and a big circumstance against the appellant is abscondence for long 6 years.
7. We have heard learned counsel for the parties and have gone through the record with their able assistance.
In the instant case the occurrence had taken place at 11.30 a.m. on 8.5.1997 within the revenue estate of dhok Haider Ali which is at a distance of 4 kilometers from Police Station Sehala District Islamabad while the matter was reported to the police by Manzoor Hussain outside the Police Station at 12.30 p.m. the same day through written complaint Ex.PC and formal FIR Ex.PC/1 was recorded by Zafar Iqbal, SI.
The deceased in this case is Muhammad Ismail who was real brother of Manzoor Hussain complainant. The other eye-witness is Muhammad Akram who appeared as PW.5. He is nephew of the deceased as also complainant. Sheraz son of deceased was given up as being un-necessary. Kh. Asghar Ali, the accused of abetment was acquitted by the trial Court under Section 265-A, Cr.P.C.
Two crime empties of .30-bore pistol were taken into possession vide memo. Ex.PG. The appellant was arrested on 28.9.2003 that is 6 years and six months after the occurrence. A .30 bore pistol was recovered on his pointation which was secured vide memo. Ex.PH on 2.10.2003.
Dr. Muhammad Arshad Khan PW. 13 conducted post-mortem examination on the dead body of the deceased at 3.30 p.m. on 8.5.1997 and found two fire-arm injuries on his person. The duration between injuries and death was opined as immediate while between death and post-mortem was 15 hours.
Learned counsel for the appellant has laid much stress that motive in this case remained shrouded in mystery and dishonest improvements were made while appearing before the trial Court and that the appellant acted under the command of his uncle Kh. Asghar Ali. It is by now well settled that motive is always in the mind of the accused and he is the best judge to select the time, the place and the person from whom he has to get the revenge. The motive is almost admitted by the appellant in his statement under Section 342 Cr.P.C. Even otherwise, weak or insufficiency of motive cannot be considered as a mitigating circumstance. It is correct that detailed motive was not given in the FIR and was introduced before the trial Court but not a single contradiction was brought on record between the FIR and the statement made by the complainant before the trial Court.
Kh. Asghar the accused of abetment was found innocent by the Police so there was no question that the appellant acted under the influence of his co accused.
It is not a case of single shot but of repeated shots. The appellant seems to be a man of desperate character in as much as in the motive case, he by firing shot damaged the eye of Islam and got his acquittal on the basis of compromise and with the grouse that his family had paid Rs. 30,000/- for compromise, he committed the murder of the deceased as he was pursuing the earlier case.
It is also important to note here that at the time of arrest of the appellant, driving license in the name of Muhammad Sharif having photograph of Mazhar Hussain as also two identity cards, one in the name of Muhammad Sharif bearing the photograph of Mazhar Hussain accused and other in his own name were recovered from his possession.
It was vociferously argued by learned counsel for the appellant that dimension on injuries on the person of the deceased is different when both the shots were allegedly fired by the appellant while standing at same place. Here we may reproduce few lines from the cross-examination of PW. 13:
"It is correct that if missiles are fired from the same arm, from the same distance the diameter of the entry wound would be the same. However, the target can move after being hit by the first missile and that would cause different dimension."
The ocular account furnished by the eye-witnesses is fully corroborated by medical evidence. Both the eye-witnesses have corroborated each other on all material points. Despite lengthy cross-examination no dent could be created in prosecution story. Mere relationship of the deceased with the eye-witnesses is no criteria to discard their testimony if it is otherwise confidence inspiring.
It is a case of single accused. In a case of such like nature, substitution is a rare phenomenon. How the kith and kin of the deceased would leave the actual killer and falsely implicate an innocent person. The occurrence had taken place in broad day light. Relationship between the parties is admitted. So there was no question of mistaken identity.
There is yet another big circumstance against the appellant and that is that he remained absconder for six years and six months in as much as the occurrence had taken place on 8.5.1997 while the appellant was arrested on 28.9.2003.
It is also important to note here that at the time of arrest of the appellant, driving license in the name of Muhammad Sharif having photograph of Mazhar Hussain as also two identity cards, one in the name of Muhammad Sharif bearing the photograph of Mazhar Hussain accused and other in his own name were recovered from his possession.
After having analyzed the entire prosecution evidence and attending to the submissions made by learned counsel for the appellant, we are fully convinced that the prosecution has proved its case against the appellant to its hilt though ocular account which is fully corroborated by medical evidence, motive as also the long abscondance spreading over more than six years.
We are also satisfied in our mind that there exists no extenuating circumstance for lesser sentence.
Resultantly criminal appeal filed by the convict appellant is dismissed, the conviction and sentence recorded against him by the trial Court vide impugned judgment is maintained in toto, the death sentence is CONFIRMED and Murder Reference is answered in the AFFIRMATIVE.
Criminal Revision No. 96 of 2004 filed by the complainant for enhancement of amount of compensation is dismissed.
(A.S.) Appeal dismissed.
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