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Petitioner: RIAZ AHMAD Alias RAJOO AND Another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah, Bashir-ud-Din Ahmad Title: RIAZ AHMAD Alias RAJOO AND Another vs THE STATE Case No.: Criminal Appeal No. 215 of 1969 Date of Judgment:1969-11-24 Reported As: PLD 1970 Lahore 689 Result: H.
JUDGMENT
JUDGMENT MUHAMMAD AFZAL ZULLAH, J.----Riaz alias Raju, aged 33, Mushtaq, aged 38, Mumtaz alias Mehr, aged 30 and Altaf Ahmad alias Gonga, aged 27, sons of Itam Din, residents, of Haveli Mian Khan, stood trial for offences under sections 302/34, 201/34 and 392/34, P. P. C., in connection with the murder of Fateh Muhammad, aged 45, at a place known as 9-A Shah Alam Market in Lahore City, on 30 November 1967, at 7-45 p.m. By his judgment, dated 25th March 1969, the learned Additional Sessions Judge, Lahore acquitted Mumtaz and Altaf. He convicted and sentenced Riaz and Mushtaq as follows:- Under section 302/34, P. P. C. Death to each; Under section 201/34, P. P. C. Five years' R. I.; Under section 392134, P. P. C. Five years' R. I. To each. The sentences of imprisonment were ordered to run con--secutively; of course, in case the sentence of death was not confirmed. The convicts have appealed. The State has filed an appeal against acquittal of Mumtaz and Altaf which was admitted to hearing on 24th September 1969. Zulfiqar A.I, son of the deceased, has also filed a revision petition against the acquittal of the aforesaid Mumtaz and Altaf which was ordered to be heard along with the State appeal. The reference under section 374, Cr. P. C. For the confirmation of death sentences is also before us. All these matters are being disposed of by this judgment. 2. Briefly stated, the facts of the case, as disclosed in the statement of an eye-witness Muhammad Ehsan alias Bhola who is also the first informant, are as follows:-- The deceased was the maternal uncle of Ehsan. About six or seven years before the occurrence, the deceased sold his house in Haveli Mian Khan to Muhammad Yaqub and Muhammad Akram (P.th
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Ws. 12 and 13 respectively). The four accused persons also were interested in the purchase of that house. Therefore, they felt annoyed on the aforesaid sale and for this reason Riaz and Mushtaq appellants used to abuse the deceased. On 30th November 1967, at about 11-30 a.m, the deceased, Dr. Yaqub (P. W. 16), Sh. Lqbal (P. W. 14) and Ehsan P. W. Went to see the wall of the house of Ghulam Rasool, a cousin of the deceased, in Haveli Mian Khan. It is mentioned in the F. I. R. That there was some dispute about this wall and these persons had gone to settle that dispute. When the party was returning from Haveli Mian Khan, Riaz appellant, who was standing near his shop at the Rate of the said Haveli, started abusing the deceased. The deceased also abused Riaz appellant. Dr. Yaqub, Sh. Iqbal and Ehsan intervened and avoided the bad situation. Riaz appellant, however, at that time remarked that he will teach a lesson to the deceased. On the same day at about 7-30 p.m., the deceased was sitting on a chair in the Verandah of building known as 9-A Shah Alam Market, near the tea-stall of Naqi (P. W. 22), when one Salah-ud-Din, the uncle of the accused, came and had some talk with the deceased which was not listened to by Ehsan. Salah- ud-Din went away. After about 5/10 minutes; all the four accused came there. Riaz and Mushtaq appellants were armed with pistols while Altaf and Mumtaz were armed with knives. Riaz appellant opened the attack by firing a pistol shot at the deceased which was followed by another pistol shot by Mushtaq appellant. On having been hit by the first shot, the deceased fell down whereupon Riaz and Mushtaq appellants fired three or four more slots at him. Fateh Muhammad expired at the spot. At about the same time, a tonga driven by Ghulam Muhammad (F. W. 23) came from the side of Shah Alam Gate. Mumtaz accused pushed Ghulam Muhammad out of the Tonga. Riaz and Mushtaq appellants and Altaf accused put the dead body in the Tonga and all four of them drove away the Tonga towards Rang Mahal. Some shots were fired from the Tonga when it was being taken away from the spot. Ehsan, one Saleem (not produced), Naqi P. W. And Ghulam Muhammad aforesaid witnessed the occurrence. Shortly after the accused persons had decamped with the dead body of the deceased, Muhammad Shafi and Muhammad Hafiz (P. Ws. 28 and 29 respectively) reached the place of occurrence. They told Ehsan that they had seen all the four accused persons taking away the dead body of the deceased in a Tonga. Shaft had seen them near Chowk Rang Mahal while Hafiz had seen them near Sua Bazar. Ehsan proceeded to Police Station Lohari Gate, which is at a distance of three furlongs from the place of occurrence and lodged the F. 1. R. (Exh, PO) at 8-15 p.m. Which was recorded by Muhammad Ashraf Khan, S. I. (P. W. 30). The F. I. R. Discloses substantially the same facts as narrated above. It is also mentioned therein that the accused persons having murdered the deceased "have taken away the dead body in a Tonga for concealing it somewhere". The description of the clothes which the deceased was wearing and which were on the dead body, when it was taken away, was also given in the F. I. R., presumably for guidance of the police to find out the dead body. Ehsan appeared before the committing Magistrate and made a statement as P. W. 10 on 13th and 31st July 1968. He was murdered thereafter and, therefore, could not appear at the trial. The learned trial Judge transferred his statement under section 33 of Evidence Act, by his order, dated 20th February 1969. That statement has been read as evidence and the number given to Ehsan, in the list of P. Ws. Is P. W. 33. The above facts have been taken from the said statement. 3. Muhammad Ashraf Khan, the Investigating Officer (P. W. 30), after recording the F. I. R, came to the spot. He took the blood-stained stones, gravel, etc., by breaking the floor of the Verandah at the spot, vide memo. (Exh. PE). A spent bullet (Exh. P5), which was blood-stained, was taken into possession, vide memo. (Exh. PF). Two empties of .32 bore (Exh. P6/1-2) were also taken into possession from the spot, vide memo. (Exh. PG). A live cartridge of .32 bore (Exh. P7) was taken into possession, vide memo. (Exh. PH). A brown pair of makeshan shoes (Exh. P8/1-2) belonging to the deceased, which was but at the spot when the dead body was taken into possession, vide memo.
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(Exh. PJ). On the same night, Tonga No. 2091, which was snatched from Ghulam Muhammad P. W. And was used in taking away the dead body, was found parked in the bus stand at Badami Bagh. The Tonga along with the mare was taken into possession, vide memo. (Exh. PM). Some hair, which were blood-stained, were clipped from the body of the mare and taken into possession, vide memo. (Exh. PK). A metallic piece (Exh. P9) inside the Tonga, which was blood--stained, was also removed and taken into possession, vide memo. (Exh. PL). A search was made for the accused persons during the night but they were not available. On the next day, i.e. 1st December 1967, Riaz appellant and Mumtaz accused surrendered before the Ilaqa Magistrate and requested for an identification parade, vide application (Exh. PV). They were sent to the judicial lock-up by the said Magistrate, for the purpose of identification. On 2nd December 1967, Ehsan, Hafiz, Naqi, Ghulam Muhammad, Shafi P. Ws. And Saleem were taken by the Investigating Officer to jail for participation in the identification parade which was to be held by the Duty Magistrate. Riaz appellant and Mumtaz accused, however, declined the identification parade. The record of proceedings, in this behalf, conducted by the Duty Magistrate in the jail on 2 December 1967, is Exh. P. W. 15/B. After their refusal in respect of identification parade, the police took Riaz appellant and Mumtaz accused in custody on the same day, i.e. 2nd December 1967. On their request, they were got medically examined, vide medico-legal reports (Exhs. P. W. 30/A and P. W. 30/B). The reports do not reveal anything significant. On interrogation, Riaz appellant offered to lead the police to the place where the dead body was lying and took the police to a place near Furrakhabad village on the bank of River-Ravi; and from a ditch which was full of water, he got recovered the dead body from inside a gunny bag (Exh. 1/A) lying in the ditch. Shalwar (Exh. P1), shirt (Exh. P2), bunian (Exh. P3) and coat (Exh. P4) belonging to the deceased were also found in the same gunny bag which was tied with the string (Exh. I/B) of the trousers. The place of recovery of the dead body, according to the Investigating Officer, is 200/300 yards from village Furrakhabad. The dead body was lying naked in the gunny bag. The inquest report (Exh. PV/2) and the injury statement (Exh. PV/t) were prepared and the dead body was sent for post-mortem examination. Ehsan P. W. Had reached the place of recovery before the gunny bag was opened There he identified the dead body as that of his maternal uncle Fateh Muhammad deceased. After the post---mortem examination, Hakim A.I, F. C. (P. W. 21) produced some sealed bottles, one containing three spent bullets which were recovered from the dead body, and the others containing the tips of the fingers of the two hands of the deceased (presumably for identification purposes) which were taken into possession, vide memo. (Exh. PN). On 5th December, licence of the Tonga (Exh. PC/1) was produced by its owner Zulfiqar A.I Shah (P. W. 26) which was taken into possession, vide memo. (Exh. PC/2). On 6th December 1967, Mumtaz accused led the police to his house wherefrom he produced from underneath a wooden box, toka (Exh. P10) wrapped in blood-stained clothes shirt (Exh. P12) and dhoti (Exh. P11) which were taken into possession, vide memo. (Exh. PU). On the same day, i.e. The 6th December Riaz appellant led the police to his house wherefrom under a cot, he produced .32 bore revolver (Exh. P13) with its eight live cartridges (Exh. P17/t-8) and blood-stained clothes shirt (Exh. P14) and dhoti (Exh. P15). They were taken into possession, vide memo. (Exh. PT/5). Mushtaq appellant surrendered before the City Magistrate on 11th December 1967 and requested for an identification parade, vide application (Exh. PX). He was sent to the judicial lock-up. The Investigation Officer made an application (Exh. P W 8/A) for identification by Ehsan, Naqi, Shafi, Hafiz and Ghulam Muhammad P. Ws. He made a note that Saleem (not produced) who, according to him, had joined hands with the accused party, should not be included in the identification parade. This parade was held on 15th December 1967 in the jail premises by a Magistrate 1st Class. The record of proceedings by the Magistrate is Exh. PX/2. Out of the aforesaid witnesses, only Ehsan and Ghulam Muhammad were able to identify Mushtaq appellant. Ehsan stated at thend
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identification parade that the accused picked up by him in the parade had fired pistol shots at the deceased. Ghulam Muhammad, while identifying Mushtaq appellant, stated that he had dragged the dead body from inside. In respect of Ehsan, Mushtaq appellant objected that the witness was his close relation and that Ghulam Muhammad knew him before the occurrence. Altaf accused was arrested on 17th December 1967, from near Haveli Mian Khan. The site plan of the place of occurrence was prepared by Inam A.I Shah (P. W. 11) and is Exh. PS. On an application by the Sub- Inspector, the statements of Ghulam Muhammad, Naqi, Hafiz and Muhammad Bashir P. Ws. Were recorded under section 164, Cr. P. C. By a Magistrate 1st Class on 15th December 1967. 4. At the trial the reports of the Chemical Examiner and the Serologist were tendered in evidence. The following articles were found to have been stained with human blood:- The clothes shirt (Exh. P 11) and dhoti (Exh. P 15) recovered from Riaz appellant; Toka (Exh. P10) and clothes dhoti (Exh. P 11) and shirt (Exh. P 12) recovered from Mumtaz accused. The metallic piece from the Tonga and the hair of the mare. The pebbles and spent bullet found at the spot. The medical evidence is contained in the statement of Dr. Nusrat Ullah (P. W. 16) before the committing Magistrate, who performed the autopsy on 3rd December 1967 at 3 p.m. The dead body was identified as that of Fateh Muhammad deceased, by his son Zulfiqar A.I and Ehsan P. W. He found the following injuries:- "(1) Whole face and front of neck was crushed. (2) Lacerated wound --" x 4--" left temporal region 2" above the ear. (3) Lacerated wound --" x --" left temporal region 1" in front of injury No. 2. "(4) Lacerated wound --" x --" in front of injury No. 3, it was in front and --" above injury No. 3. (5) Lacerated wound 1" x --" occipital region --" to the left of mid line. Edges of injury Nos. 2, 3, 4 and 5 were charred, blacked and inverted. (6) Laceration 3" x 2" left shoulder in front. On opening the skull there was haematoma underneath the injuries Nos. 2 and 5. Haematoma had infiltrated the surrounding area. Skull under the injuries Nos. 3 and 4 was absent (destroyed and crushed). Corresponding to injury No. 2, there was hole in the temporal bone --" x --". The margins on outer aspect were fine but in the inner aspect were irregular. There was corresponding hole in the duramater, temporal lobe of the left hemisphere, flax ceretri, temporal lobe of right hemisphere, duramater on right side and had fractured the temporal bone on the right side 1" x --". The bullet bad deflected back on the posterior side after hitting and fracturing the right temporal bone and was found in the parietal lobe (right) of the lobe. Corresponding to injury No. 3, there was hole occipital bone 1" x --" on the left side. The bullet had pierced the duramaters, tentorium cerebelli after piercing the posterior lobe of left hemisphere. There were two bullets lying in the left parietal lobe having the same track as stated which indicated there were two fires keeping the fire-arms at the same position of injury No. 5. There was subdural haemorrhage over the surface of both the hemisphere of brain." The face was crushed. Lower jaw, upper jaw, maxilla, and frontal bone were broken into pieces. The skin of the face and neck, front part was absent. The edges of the skin over the forehead and lateral sides of head and neck were sharply cut at various places and at some places it was crushed. The edges of the upper part of chest were also cut. Mud was present all over the body. The palmer aspect of feet and both palms and dorsal aspects of hands were wrinkled. Both the sides of heart were empty. The stomach was empty. Large intestines contained faeces and bladder was empty. The cause of death was cardio-respiratory failure due to extensive and sudden damage to the brain caused by injuries Nos. 2 and 5, which were individually sufficient to cause death in the ordinary course of nature. Injuries Nos. 2, 3, 4 and 5 were ante-mortem and were caused by firearms. Injury No. 1 was post-mortem and was caused by a blunt and heavy
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weapon after removing the skin by sharp-edged weapon. Injury No. 6 was ante-mortem and was caused by a blunt weapon. On a Court question, the doctor opined that this injury could be caused by the body sliding over hard and rough surface. Under cross-examination, the doctor stated that from injury No. 5, two bullets went into brain substance and that it was on occipital region. He further stated that this injury was possible if the victim was lying "face ward" and the assailant was holding the firearm over the occipital region within a distance of three feet. At one stage, the doctor said that "injury No. 6 was not possible by a fall on the floor from the chair after receipt of the bullet injury". But that statement, it appears, was modified on Court question as mentioned above. The duration between injuries and death was a few minutes and that between death and post-mortem was about 67 hours. If calculated backward from the time of post-mortem examination, the time of occurrence would be about 8 p.m. On 30th November 1967. Exh. PR is the post---mortem report. Muhammad Nazir, Washerman (P. W. 3), Muhammad Amin, Tailor (P. W. 4) and Haider A.I Siddiqui (P. W. 1) were produced to prove that the dead body recovered was that of Fateh Muhammad deceased; though Ehsan P. W. Also deposed to the identification of the dead body at the time of recovery as well as at the time of the post-mortem examination. Ashfaq Hussain, A. S. I. And Muhammad Nazir, F. C. (P. Ws. 7 and 9 respectively) deposed about the custody of the parcels which were given to P. W. 7 by the Investigating Officer. No link in this behalf is missing. Muhammad Yaqub and Muhammad Akram P. Ws. 12 and 13 respectively) reposed about the sale of the house by the deceased; while Iqbal, another Yaqub and Ghulam Rasool (P. Ws. 14, 16 and 17 respectively) appeared to prove the incident in which the deceased and Riaz appellant exchanged abuses and the said appellant thereupon threatened the deceased at about midday on the day of occurrence. Muhammad Hanif (P. W. 25) is the witness of the recoveries from the houses and at the instance of Riaz appellant and Mumtaz accused. The Investi--gating Officer (P. W. 30) has also proved these recoveries. Muhammad Sarwar and Saeed Gul Khan (P. Ws. 24 and 32 respectively) are Fire-arms Experts who stated that two crime empties (Exh. P-6/1-2) recovered from the spot were fired from the revolver (Exh. P. 13) recovered from Riaz appellant. Muhammad Hussain and Muhammad Nawaz (P. Ws. 18 and 20 respectively) were produced to prove the recovery of the dead body of Fateh Muhammad from near the bank of River-Ravi at the instance of Riaz appellant; but they did not support the prosecution arid, therefore, they were allowed to be cross-examined by the Public Prosecutor and their statements made before the committing Magistrate were also transferred to the Sessions file under section 288, Cr. P. C. In those statements before the committing Magistrate the witnesses fully supported the prosecution. However, Ehsan P. W. And the Investigating Officer have also proved the aforesaid recovery of the dead body. Four Magistrates appeared as prosecution witnesses. The evidence of two of them (P. Ws. 8 and 15) is in connection with the identification parades; while P. W. 19 stated about the surrender of Riaz appellant and Mumtaz accused on 1st December 1967 and Mushtaq appellant on 11th December 1967. They all requested for their identification by the P. Ws. According to the witness, they had muffled their faces at the time that they appeared before him and he further directed them to keep their faces concealed till the identification parade was over. As to what happened: on the identification parades subsequently held, has already been noted in paragraph 3 above. P. W. 31 only recorded the statements of some of the witnesses under section 164, Cr. P. C. The site plan (Exh. PS) was prepared by Inam A.I Shah (P. W. 11). The Investigating Officer had also prepared an inspection note immediately on his arrival at the spot which has been proved by the defence in the cross- examination of that witness and is Exh. DF. It is pertinent to note that according to this inspection note, there were two electric bulbs at the shop of Muhammad Naqi P. W. And in the Verandah (at the place of occurrence). It is also noted therein that there was sufficient light from these two bulbs. The various points about the place of occurrence, particularly those from where the witnesses saw the occurrence and from where the Tonga was snatched from Ghulam Muhammad P. W., are
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vividly described. P. Ws. 5, 6 and 7 have deposed about the licensed Tonga of Zulfiqar A.I Shah P. W. Who himself appeared as P. W. 26. They have proved that the Tonga and the mare in question belonged to Zulfiqar A.I and that on the day of occurrence, Ghulam Muhammad P. W. Was plying the Tonga as servant of Zulfiqar A.I Shah. According to Zulfiqar A.I Shah, the Tonga was missing from 30th November to 5th December 1967. The defence plea was that of denial and false implication due to a previous quarrel by Riaz and Mushtaq appellants with Ehsan P. W. On account of which the witness is said to have had a grudge against all the four brothers. Riaz appellant further stated that Ehsan wanted to marry the daughter of Fateh Muhammad deceased who was engaged to one of her relations in Kucha Kundigran; and that the deceased was not willing to marry her to Ehsan; and further that Ehsan married her after the death of Fateh Muhammad. The vague innuendo in this statement is that Ehsan might have killed the deceased. Riaz appellant has denied the recovery of the dead body at his instance. Riaz appellant and Mumtaz accused have denied the recoveries from their houses at their instance; nor have they admitted the ownership of the recovered articles. Mushtaq appellant also pleaded alibi; in that on the day of occurrence, he had gone to Khewra in connection with his business and was not present in Lahore. No evidence in defence was produced. 5. The learned trial Judge disbelieved the statement made by Naqi P. W. At the trial. He did not rely on the statement made by Ghulam Muhammad because the witness could not identify the accused. He also disbelieved the statements made by Muhammad Shafi and Muhammad Hafiz, the Vajaker witnesses, on account of relationship as well as for the reason of their being chance witnesses. The evidence of the Expert and a trainee from the Forensic Science Laboratory was also discarded as the learned trial Judge thought that it was a weak type of evidence; and further that in the manner the empties were tested by the trainee and Muhammad Sarwir Expert, he was unable to rely upon their opinion. It may be mentioned that while discarding the statement of Naqi P. W. Made at the trial, the learned Judge preferred, and believed not only the statement made by that witness before the committing Magistrate but also, strange enough, the other statement made by him under section 164, Cr. P. C. The evidence which has not been disbelieved and which has been relied upon by the learned trial Judge is, therefore, contained in the ocular account given by Naqi P, W. In his two earlier statements, Ehsan P. W. In his before the committing Magistrate read as evidence under section 33, Evidence Act, the recovery of the dead body at the instance of Riaz appellant and the recoveries of the blood-stained clothes from Riaz appellant and Mumtaz accused from their houses and the statements made by various witnesses about motive. The other circumstances have also been taken note of by the learned trial Judge which provide the res gestae in the case. He did not discuss the specific effect of the main items of evidence on which he relied and gave his finding in the following generalised form:- "My above discussion would show that it stands proved beyond reasonable doubt that Mushtaq and Riaz alias Rajoo committed the murder of Fateh Muhammad by firing. It also stands proved that they took away the dead body in Tonga of Ghulam Muhammad which they snatched by extortion. It also stands proved that they having committed the murder concealed the dead body in River Ravi." On the basis of the above finding, he convicted the two appellants, as stated in the opening part of this judgment. He acquitted Mumtaz and Altaf accused because, as he put it, "Ghulam Muhammad tonga driver was not made to identify Mumtaz alias Mehr whom alone of all the accused he had seen from a close quarter. As regards the part played by Altaf accused the P. Ws. Have not attributed any role to him. I would, therefore, acquit them of all the charges." 6. The use of the Tonga, which was being driven by Ghulam Muhammad P. W., by the culprits has been proved by sufficient material on the file which has been mentioned above and need not be discussed here. The name of Ghulam Muhammad as the Tonga driver is mentioned in the F. I. R.
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And he is also an attesting witness of the recovery memos. Which were prepared on the arrival of the police soon after the occurrence. Ghulam Muhammad has not been otherwise proved to be inimical towards or, in any way, interested against any of the accused persons. There is no doubt about that part of his statement in which he stated to be present near the place of occurrence. The learned trial Judge has not relied on the statement of this witness, for the reason that he could not identify even that culprit (said to be Mumtaz accused) who snatched his Tonga from him and who must have been seen by him from very close quarters. Though the witness, on a direct question by the Public Prosecutor, pointed towards all the accused persons sitting in Court to be the culprits, yet the fact remains that immediately before that he was unable to point out Mumtaz accused and twice picked up a wrong man in the person…
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