Azhar Hussain and another v. The State and others
Present: Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ.
Azhar Hussain and another — Petitioners
Versus
The State and others — Respondents
Jail Petition No. 190 of 2017 and Criminal Petition No. 398-L of 2017
Decided on: 16th August, 2022
Against the judgment dated 20.02.2017 passed by the Lahore High Court, Multan Bench in Murder Reference No. 111/2012 and Criminal Appeal No. 772/2012.
Penal Code — Section 302(b), P.P.C.
Qatl-i-Amd — Reappraisal of Evidence
The prosecution witnesses were subjected to lengthy cross-examination by the defence, but nothing favourable to the accused or adverse to the prosecution could be brought on record.
The ocular account furnished by the prosecution was found to be reliable, straightforward and confidence inspiring. The medical evidence available on the record corroborated the ocular account with regard to the nature, time, locale and impact of the injury sustained by the deceased.
Counsel for the accused could not point out any plausible reason as to why the complainant would falsely involve the accused and let off the real culprit who had murdered his daughter. Substitution in such cases was considered a rare phenomenon, particularly where there was admittedly no previous enmity between the parties.
The conviction of the accused under section 302(b), P.P.C. was therefore maintained. The petitions for leave to appeal were dismissed and leave was refused.
Evidence of Related Prosecution Witnesses
Mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard their testimony unless previous enmity or ill will is established on the record showing that the accused was falsely implicated in the case.
The fact that a witness is related to the deceased does not, by itself, render his testimony unreliable.
Minor Discrepancies in Prosecution Evidence
While appreciating evidence, the Court must not attach undue importance to minor discrepancies.
Minor discrepancies which do not shake the salient features of the prosecution case should be ignored. An accused cannot claim a premium on account of such minor discrepancies.
If importance were given to every insignificant inconsistency, there would hardly be any conviction.
Reliance: Allah Bakhsh v. Ahmad Din (1971 SCMR 462).
Medical Evidence and Absence of Blood-Stained Earth
The absence of blood-stained earth at the place of occurrence did not create a doubt in the prosecution case.
The deceased had sustained a firearm injury to the abdomen, as a result of which the gut had come out of the belly. In such injuries, the gut may seal the margin of the wound, causing the blood to fall inside the body cavity instead of oozing outside the body.
Therefore, the non-existence of blood at the place of occurrence was considered understandable and did not shatter the prosecution case.
Ocular Evidence as Sole Basis of Conviction
Where ocular evidence is found to be trustworthy and confidence inspiring, a conviction can be based solely upon such ocular evidence.
The absence of recovery of the weapon of offence or an empty cartridge does not, by itself, make the ocular account unreliable where the prosecution evidence is otherwise trustworthy.
Sentence — Death Sentence Reduced to Life Imprisonment
The High Court maintained the conviction of the petitioner under section 302(b), P.P.C. but converted the sentence of death into imprisonment for life.
The Supreme Court observed that the motive had not been proved and the weapon of offence had not been recovered.
Keeping these circumstances in view, the High Court had rightly taken a lenient view and converted the death sentence into imprisonment for life.
The Supreme Court found that no further leniency could be shown to the accused.
Representation
Ms. Saba Saeed Sheikh, Advocate Supreme Court appeared for the Petitioner in Jail Petition No. 190 of 2017 through video-link from Lahore.
Sikandar Javed, Advocate Supreme Court appeared for the Petitioner in Criminal Petition No. 398-L of 2017 through video-link from Lahore.
Nemo for the State.
Date of Hearing: 16th August, 2022.
Judgment
Background of the Case
Petitioner Azhar Hussain, along with two co-accused, was tried by the learned Additional Sessions Judge, Jatoi, District Muzaffargarh, pursuant to FIR No. 731/2010 dated 05.10.2010 registered under sections 302/34, P.P.C. at Police Station Jatoi for committing the murder of Mst. Sajda Bibi, daughter of the complainant.
The learned Trial Court, through judgment dated 17.11.2012, acquitted the co-accused but convicted petitioner Azhar Hussain under section 302(b), P.P.C. and sentenced him to death.
The petitioner was also directed to pay compensation of Rs.100,000/- to the legal heirs of the deceased, and in default thereof to further suffer six months’ simple imprisonment.
In appeal, the learned High Court maintained the conviction under section 302(b), P.P.C. but altered the sentence of death into imprisonment for life. The amount of compensation and sentence in default were maintained, and benefit of section 382-B, Cr.P.C. was also extended to the petitioner.
Aggrieved by the judgment, the petitioner filed Jail Petition No. 190 of 2017, while the complainant filed Criminal Petition No. 398-L of 2017 seeking enhancement of the sentence.
Prosecution Story
According to the prosecution, on 05.10.2010, the complainant Haji Ghaus Bakhsh appeared before the police and recorded his statement.
The complainant stated that in the morning he was cultivating vegetables near his house along with his wife and children, while his daughter Mst. Sajda, aged about 16/17 years, was present inside the house.
At approximately 7:30 a.m., he heard a hue and cry and rushed towards the house. He saw two unknown persons coming out of his Haveli.
Upon entering the house, he saw his daughter Mst. Sajda grappling with accused Azhar Hussain. When the complainant approached them, accused Azhar Hussain fired a pistol which struck Sajda Bibi in the abdomen, causing her to fall to the ground.
In the meantime, prosecution witnesses Mukhtiar Hussain and Muhammad Siddique reached the spot and attempted to apprehend the accused. The accused threatened them while raising his pistol.
Mukhtiar Hussain chased accused Azhar Hussain and caught him in the cotton crop near the house, where they grappled with each other. The accused subsequently fled, leaving behind his Qamiz, Shalwar, broken Azarband, pair of shoes and identity card.
The deceased succumbed to her injuries, following which the criminal case was registered.
After completion of the investigation, the report under section 173, Cr.P.C. was submitted before the Trial Court.
The prosecution produced nine witnesses. In his statement under section 342, Cr.P.C., the petitioner denied the allegations and pleaded innocence. He did not make a statement on oath under section 340(2), Cr.P.C. and did not produce any evidence in his defence.
Arguments on Behalf of the Petitioner
Learned counsel for the petitioner contended that there were glaring contradictions and dishonest improvements in the statements of the eyewitnesses which had escaped the notice of the courts below.
It was argued that the prosecution witnesses were interested and related to the deceased and therefore their evidence had lost its sanctity.
It was further contended that the prosecution had failed to prove its case beyond reasonable doubt, had not established the alleged motive, and that the absence of blood-stained earth at the place of occurrence indicated that the occurrence had taken place somewhere else.
It was lastly argued that the impugned judgment was based upon misreading and non-reading of evidence and therefore was liable to be set aside.
Arguments on Behalf of the Complainant
Learned counsel for the complainant submitted that the High Court had converted the death sentence into imprisonment for life on grounds which were not tenable in law.
It was contended that, for sustaining a conviction on a capital charge, unrebutted ocular evidence alone was sufficient.
It was further submitted that the ocular account was corroborated by medical evidence and therefore the petitioner did not deserve any further leniency. The sentence was sought to be enhanced.
Assessment of Ocular Evidence
The ocular account was furnished by Ghous Bakhsh, complainant (PW-3), and Mukhtiar Hussain (PW-6).
Both prosecution witnesses were subjected to lengthy cross-examination by the defence. However, nothing favourable to the petitioner or adverse to the prosecution could be brought on record.
Both witnesses remained consistent on every material point and made depositions according to the circumstances of the occurrence.
The Supreme Court therefore concluded that the ocular account furnished by the prosecution was reliable, straightforward and confidence inspiring.
The medical evidence available on the record also corroborated the ocular account with regard to the nature, time, locale and impact of the injury sustained by the deceased.
Testimony of the Complainant
The Court considered the argument that the complainant was the father of the deceased and therefore his testimony could not safely be relied upon.
The Supreme Court reiterated that mere relationship of prosecution witnesses with the deceased is not sufficient to discard their testimony unless previous enmity or ill will is established on record showing that the accused was falsely implicated.
Counsel for the petitioner could not point out any plausible reason why the complainant would falsely involve the petitioner and allow the real culprit, who had murdered his daughter, to go free.
The Court observed that substitution in such cases is a rare phenomenon, particularly where there was no previous enmity between the parties.
Minor Contradictions and Discrepancies
The defence argued that there were material discrepancies and contradictions in the statements of the eyewitnesses.
However, no major contradiction capable of shattering the prosecution case could be pointed out.
The Supreme Court held that courts must not attach undue importance to minor discrepancies while appreciating evidence. Minor discrepancies which do not affect the salient features of the prosecution case should be ignored.
The accused cannot claim a premium on the basis of insignificant inconsistencies.
Absence of Blood-Stained Earth
The defence argued that there was no blood-stained earth at the place of occurrence, suggesting that the occurrence had taken place somewhere else.
The Supreme Court rejected the argument.
The postmortem examination showed that the gut had come out through the injury sustained by the deceased.
In such injuries, when the gut comes out of the abdomen, it seals the margin of the wound and blood may fall inside the body cavity rather than flow externally.
The medical evidence showed that the peritoneum was injured at the level of the umbilicus, the abdominal cavity was full of blood and the small intestines were perforated.
The absence of blood at the place of occurrence was therefore understandable and did not undermine the prosecution case.
Defence Plea of the Petitioner
The petitioner took the defence that he had friendly relations with the deceased and that when he was seen by the complainant’s son sitting with the deceased in the cotton crop, he ran away and later came to know that the deceased had been murdered.
However, the petitioner failed to substantiate this plea through any cogent evidence.
The Supreme Court considered the defence story to be concocted merely to save the petitioner from the consequences of the offence.
The Court observed that the petitioner’s own stance provided support to the prosecution case that he had been followed by Mukhtiar Hussain (PW-6) to the cotton crop, where confrontation took place and his identity card and other belongings were left behind.
Investigation
It was also argued that the Investigating Officer had not properly investigated the case and that the investigation remained incomplete.
However, on a specific query from the Court, learned counsel admitted that the defence had neither attempted to have the Investigating Officer declared hostile nor filed a private complaint, nor had the Investigating Officer been cross-examined on this aspect.
The Supreme Court therefore held that raising such an argument at that stage was of no avail to the petitioner.
Motive and Recovery
The prosecution had not disclosed any motive for the commission of the offence.
The Court observed that since there was no enmity between the parties, the complainant had not narrated any motive in the crime report.
As regards recovery, admittedly neither the weapon of offence was recovered from the petitioner nor was any empty cartridge collected from the place of occurrence.
However, the Court reiterated that where ocular evidence is found trustworthy and confidence inspiring, a conviction can be based solely upon such evidence.
The Supreme Court therefore found sufficient evidence available to sustain the conviction of the petitioner.
Quantum of Sentence
With regard to the sentence, the Supreme Court observed that no recovery had been effected and the motive had not been proved.
Keeping these circumstances in view, the High Court had rightly taken a lenient view by converting the sentence of death into imprisonment for life.
The Supreme Court held that no further leniency could be shown to the petitioner.
The impugned judgment was found to be well-reasoned, based upon correct principles of law and not calling for interference.
Final Decision
For the reasons discussed above, the Supreme Court found no merit in the petitions.
The petitions were dismissed and leave to appeal was refused.
Petitions dismissed.