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Petitioner: WAHEED AHMAD VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Khawaja Muhammad Sharif, Riaz Kayani Title: WAHEED AHMAD vs THE STATE Case No.:Criminals Appeals Nos.652, 653 and Murder Reference No,242 of 1995 Cr.A.
JUDGMENT
Reported As: 2000 YLR 1756 Result: Order accordingly Judgment JUDGMENT ' RIAZ KAYANI, J.---Muhammad Attique son of Haji Muhammad Saddique through Criminal Appeal No,653 of 1995 and Waheed Ahmad son of Bashir Ahmad through Criminal Appeal No,652 of 1995 have assailed the judgment of the Sessions Judge, Sialkot, dated 2-10-1995 whereby both of them were convicted under section 302 read with section 109, P.P.C. For the murder of Sh. Abdul Qadeer and each one of them was sentenced to death. Muhammad Attique was ordered to pay compensation in the sum of Rs, 1,00,000 under section 544-A, Cr.P.C. To the heirs of the deceased. Similarly Waheed Ahmad appellant was also ordered to pay compensation in the sum of Rs,25,000 to the heirs of the aforesaid deceased, in case of failure to pay compensation both of them were ordered to undergo R.I. For six months. Reference under section 374, Cr.P.C. Was also sent to this Court for confirmation of death sentence awarded to both appellants. 2. Jawad Qadeer complainant has filed Criminal Appeal No,691 of 1995 against Muhammad Attique appellant against his acquittal under section 449 read with section 109, P.P.C. And for ordering that the compensation be recovered as arrears of land revenue. Criminal Appeal No,692 of 1995 has also been filed by Jawad Qadeer complainant with a similar prayer against Waheed Ahmad appellant. 3. We intend to deal with all these matters through this single judgment. 4. The occurrence which resulted in the death of Abdul Qadeer took place on 4-9-1994 at 11-45 a.m. Within the premises of Sandal Surgico situated in Factory Area, Sialkot at a distance of 2 kms. From Police Station Hajipura. The complaint was made by Jawad Qadeer son of the deceased at the A.I.M. Hospital, Sialkot and was recorded by Baqir Hussain Inspector/S.14.0., Police Station Hajipura,
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Sialkot on the same day at 12-30. p.m. Where after it was sent to the police station where formal First Information Report was recorded at 1 p.m. 5. Prosecution version voiced in the complaint Exh.P.L. Authorized by Jawad Qadeer is that his father Abdul Qadeer was a partner in Sandal Surgico, Sialkot. On 4-94994 at 11-45 a.m. He alongwith Akhtar Majid son of Abdul Majid resident of Kapoor Building, Nekapura were sitting in the office of their father situated within the premises of Sandal Surgico and while his father was busy in typing a letter at that very moment one person whose name and description was unknown but was of darkish complexion, height about 5 -8/9" wearing Shalwar Qameez entered inside the office and without speaking a word fired straight at his father twice with his pistol. One of the bullet hit on the face and the other pierced the heart on the right side and immediately his father fell on the ground. The unknown person ran outside followed by the complainant whereas Akhtar Majeed tried to gather his father. In front of the gate of the factory Muhammad Amin son of Muhammad Ramzan who was coming from the Chowk told him that the person who just ran out of the factory sat on the rear seat of a motor-cycle Honda 125, without number, standing near the factory and the driver of the said motor-cycle drove him away. His father was taken by Shahid Latif Toni of Brothers Surgico, Muhammad Amin and Muhammad Attique appellant maternal uncle of his father accompanied by him to the hospital to be administered medical aid but in the way the injured succumbed to his injuries and his dead body was kept in the hospital. The son who came inside and shot his lath be identified by him and Akhtar Majeeu whereas Muhammad Amin can identify both the killer and the driver of the motor-cycle who it was stated in furtherance of their common intention murdered his father. 6. Baqar Hussain, Inspector after sending the complaint for registration of the formal First Information Report prepared the injury statement Exh.P.R. And the inquest report Exh.P.S. Pertaining to the deceased and handed over the dead body to Shaukat Ali, A.S.-I. Accompanied by two constables to be taken to the mortuary for performance of the post-mortem examination. On the day he left for the scene of occurrence where he prepared rough site plan Exh.P.U, and secured the blood-stained earth from the site with the help of cotton and secured the same vide memo. Exh.P.C. Two crime empties were also recovered from the scene of occurrence which he took in custody vide memo. Exh.P.D. A piece of bullet lead was also recovered and taken in possession vide memo. Exh.P.E. On 4-9-1994 he recorded statements of the witnesses under section 161, Cr.P.C. However, statement of Maqsood P.W. Was recorded on 5-9-1994. On 10-9-1994 and 11-9-1994 he raided the house of Attique to arrest him but failed to take him in custody and finally on 18-9-1994 he arrested him, after having been produced by Rafique in the factory known as Tonny Brothers Factory. After interrogating Attique he arrested Waheed appellant from his house on 19-9-1994. On the same day Waheed was produced before the Court and was sent to Jail for getting him identification in an identification parade. Applications in this behalf marked as Exh.P.V. And Exh.P.W. Were made respectively. It is stated by the Investigating Officer that he informed Waheed at the time of his arrest that he will be put to identification parade, therefore, he may conceal his face if he so desired. After the identification parade was held, physical remand of Waheed was obtained and on 23-9-1994 he led to the recovery of pistol P.4 from the place near Aik Nallah which was taken in possession vide memo. Exh.P.K. 7. On 4-9-1994 Dr. Zafar Iqbal Baig, Medical Officer, Allama Iqbal Memorial Hospital, Sialkot performed the post-mortem examination on the dead body of Sh. Abdul Qadeer aged 50/55 years and found a fire-arm entry wound on the front of right chest with blackening and burning around the wound. There was a fire-arm exit wound of injury No,1 on the back of right chest just below the lower margin of scapula and margins were averted. The other fire-arm entry wound was 3/4 c.m. In diameter on the left side of upper lip of mouth. Blackening and burning around the wound were present having inverted margins but there was no exit wound.
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8. In the opinion of the doctor injuries Nos.1 and 3 caused hemorrhage and shock individually and collectively which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by fire-arm and were fatal to life. Probable time that elapsed between injuries and death was immediate and between death and post-mortem was within two hours. 9. Appellants were indicted, during the trial they denied the charge and pleaded not guilty. Prosecution examined as many as 18 witnesses. The ocular testimony account was furnished only by complainant Jawad Qadeer P. W.13 who reiterated the prosecution version disclosed in the F.I.R. 10. The Public Prosecutor tendered in evidence report of the Chemical Examiner Exh.P.X where the blood collected through cotton was opined to be stained with blood and the report of the Serologist Exh.P.Y. Confirmed it to be of human origin. However, report of the Forensic Expert Exh.P.L. Was in the negative and the two crime empties C/1 and C/2 were found not to have been fired by the pistol recovered at the instance of Waheed Ahmad appellant. 11. Muhammad Attique appellant when examined under section 342, Cr.P.C. Admitted that the deceased was son of his elder step-sister but denied that there was any embitterment between him and the deceased immediately prior to the occurrence by making the following statement:- "It is incorrect that Sh. Abdul Qadeer deceased was ever a party in the dispute about the houses between the sons of Mst. Badshah Sultana and children of Mst. Zainab Bibi, wives of Sh. Muhammad Siddique Sandal (late). However, after the death of my' father Sh. Muhammad Siddique Sandal, Farooq and Naseer etc., my step-brothers and sisters started demanding the shares from the houses gifted in the name of the children from his wife Mst. Badshah Sultana i,e, my real mother. False motive has been attributed which is factually incorrect." ' As regards the alleged disclosure made by him to Maqsood Aslam Spaul P,W.8 that Sh. Qadeer deceased was hurdle in his way and was to be removed, he stated as under:- "It is incorrect. Maqsood Aslam P.W. Is patronized by Sh. Muhammad Iqbal P.W. Who is a rich influential person of that Ward of Municipal Committee from where Maqsood Aslam P.W. Had been contesting elections of Local Bodies. Sh, Muhammad lqbal P.W, is having the strength of more than 100 votes being head of Sandal Families. Residing in Sandal Colony, Maqsood Aslant P.W. Deposed falsely at the behest of Sh. Muhammad Iqbal P.W. And I have nothing common with Maqsood Aslam P.W. Maqsood Aslam P.W. Never contacted me for any reason." 12. Appellant Attique denied even acquaintance with Waheed appellant and stated that he was neither a relative nor a friend of him. Date of his arrest was given by him as 11-9-1994 and it was denied that he made any extra-judicial confession to Muhammad Rafiq P.W. On 18-9-1994. In reply to the question as to why the case was brought by the prosecution against him he made somewhat a detailed reply which is reproduced below:-- "The witnesses are interest see related and rest are their employees. I am victim of natural hatred possessed by my step-brothers who were never happy on the second marriage of my deceased father, Sh. Muhammad Siddique. Keeping in view the hostile attitude of step-brothers, my, father in his lifetime settled all the sons from his first wife and also got them independent houses in different areas of the city, whereas we being very much left behind financially, my father transferred some of shares of business in my name in Sandal Trading Corporation. Similarly Sh. Abdul Qadeer deceased who was a good natured person also adopted me as his partner in Sandal Surgico, being a skilled person in manufacturing of surgical goods in the year 1978, through a registered partnership. My father also gifted two houses in the name of children from Mst. Badhshah Sultana my mother. On the day of occurrence, I was present in my production section in Sandal Surgico, where I was occupying an independent office. I was busy in work when I heard fire reports and was told about the occurrence by the workers of the factory. I rushed to the place of occurrence and found Sh, Abdul Qadeer lying injured in his office and I immediately got him removed with the help
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of the employees in a car driven by me and took him in the hospital but unluckily on reaching the hospital he expired. P.Ws. Jawad Qadeer, Akhtar Majid , Muhammad min etc were not present at the relevant time in the factory nor they had seen the occurrence. They had not accompanied me and the injured to the hospital, Jawad Qadeer and other relations were informed on telephone. The F.I.R. Was lodged by the family of the deceased after due consultation and after the preliminary investigation at late hours of night. Unfortunately, after the arrival of Sh. Muhammad Iqbal P.W., father-in-law of Jawad Qadeer P.W. On 8-9-1994 from abroad, my step-brothers played devil's role, and got implicated me in this case through fabricated evidence. ' Deceased Abdul Qadeer had no differences with me nor I had ever felt aggrieved of him. Otherwise I was at liberty to get the partnership dissolved which was my legal right. It was never a forced partnership. The partnership was voluntary. Sh. Abdul Qadeer, deceased was managing the office and. I was the in-charge of Production Section and had the equal right to operate the bank accounts being a Managing Partner and to look after the matters relating to the Firm. It is out of greed that both the families had common designs to take the property and business i,e, my step- brothers and Sh. Muhammad Iqbal father-in-law of Jawad Qadeer and real uncle of Tanveer Afzal, brother of Abdul Qadeer deceased and they by putting me behind the bar, have done so. My step- brothers also have filed civil suit to dispossess me from the houses gifted to my mother and her children by my deceased father. I am innocent and have been victimized only to usurp the property and business." 13. Waheed Ahmad appellant in his statement under section 342, Cr.P.C. Denied his participation in the occurrence and regarding his identification by the witnesses in the identification parade his answer was as under- ' The fact of the matter is that the identification parade was a sham one. False date of my arrest has been shown by the police. I was shown to the witnesses in the police station. Sh. Muhammad Safdar son of Sh. Allah Ditta, brother of Sh. Muhammad Iqbal P.W., Sh. Imranul Haq and Sh. Abdul Qadir son of Sh. Abdul Majid Puri were also summoned to the police station alongwith other witnesses and I was seen by all of them. Sh. Imranul Haque is a prosecution witness in this case he was joining the investigation from the very beginning. All the P. Ws. Are either close relatives of deceased, his employees or his friends. They have been set up as false witnesses in the case. All the under trials mixed with the parade were not dressed alike. My height is 6'-2", I have a permanent old scar mark of blackish colour on my forehead, black mole on my right cheek and a dimple on the front of my chin. None of the participants of the parade had such identification marks. Their heights were 5'-4", 5'-5", 5'-6", 5'-7" and one or two were 5'-8" and their features complexions, physique ages were not identical with me. Their color was also different than my color. At the time of identification parade I had raised an objection before Magistrate that I had already been shown and got identified at the police station by the police. In the identification memo. Only my name has been written. Neither my particulars, nor my identification marks nor color, age, physique and height have been mentioned. They were belonging to different villages, having different complexions and features and contours. I was produced before the Court of a Magistrate on 19-9-1994 and the witnesses were also present at that time and from there I was taken to Jail by Shaukat Ali Shah, A.S.-I. Throughout the period I remained in police station, my face or other identification marks were never covered by the police. So, the witnesses were provided many opportunities to see me. 14. In reply to the question as to why the prosecution has brought the case against him he replied as under:- "All the P.Ws. Are not only closely related inter se but also to the deceased. As regards other witnesses they have business relations with the complainant side and also have longstanding friendship. Since the police was under pressure they maneuvered this false story as they were
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afflicted with a fit of activity and efficiency. Since this was an un-witnessed occurrence the complainant and Muhammad Iqbal P.W. With the help of their own witnesses and party men prepared this fictitious tale of occurrence in collaboration with the police as by doing so, the complainant and relatives of Muhammad Iqbal could be able to gain advantage to the tune of crores of rupees. I have absolutely no reasons to commit the crime in question. I belong to a well- known respectable family of Sialkot. I alongwith, my brother have three shops in Main Bazar, Sialkot where we have flourishing business. My education is F.A. And after doing F.A. I did electrical course and served for 16 years in Kuwait and came back in the year 1988. I am doing business of currency and money changing in the Main Bazar, Sialkot. Sh. Muhammad Idrees's shop is close to my shop. I have sound business and father of two sons and two daughters. I did not have the slightest motive to commit murder of Abdul Qadeer deceased. The story has been prepared in absolutely false premises and all that has been said is a patent falsehood. I proclaim my absolute innocence in the case." 15. Defence also examined Hamid Ali Khan, a Press Reporter of Daily Nawa-i-Waqt who stated news item Mark-B, was despatched by him on 11-9-1994 and was accordingly published on the next day. News item relates to the death of Abdul Qadeer of Sandal Surgico and the protest of the general public regarding failure of the police to arrest the culprits. However, the news item further goes to state that one of the partners has been taken in custody by the police in connection with the murder case on 11-9-1994 and the process of questioning has commenced. 16. Learned counsel for the appellants bitterly criticized the pieces of evidence produced by the prosecution and stated that it was the brain child of Muhammad Iqbal P.W.1 the father of the complainant who is connivance with Baqar Hussain, Inspector manipulated the same. It was further stated that there was absolutely no motive in the case for appellant Attique to cause murder of the deceased. As regards Waheed Ahmad appellant it was contended that the identification parade was a total force as the appellant had three distinctive marks on his face and anyone having a slight glimpse would enumerate them in describing assailant. However, at the time of the parade the Magistrate supervising the same did not take any step to get the said marks covered or to fix dummies with similar identification marks. On the other hand complainant's counsel acclaimed the conviction and sentence recorded by the trial Judge and vehemently refuted the arguments advanced by the defence by stating that the prosecution produced enough material to successfully prove the culpability of both the appellants. 17. We have considered the arguments of the respective counsel and have also gone through the record. In our considered view the prosecution has failed to establish the guilt and involvement of the appellants for reasons given in the ensuing paragraphs. 18. Jawad Qadeer complainant appeared as P.W.13. In his examination-in-chief he increased the height of the assassin from 5'8/9" to 6' as by then he had seen him. However, he reiterated the statement in the complaint that he followed the killer of his father till the gate when Muhammad. Amin Chughtai who was entering the gate of Sandal Surgico noticed the killer with a mouser sitting on the rear seat of the motor-cycle driven by another person. The witness informed the Court that on 21-9-1994 he identified the assailant as Waheed having picked him up in the identification parade held inside the premises of the jail at Sialkot from amongst 10/11 persons. He was also confronted with the statement recorded by the police regarding the height and complexion of Waheed which was changed from black to brownish in the examination-in-chief. He admitted that Attique and his mother Mst. Badshah Sultana owned 12-1/2 shares in Sandal Surgico. However, after the arrest of Attique application for dissolution of partnership of Sandal Surgico was moved before the Givil Court on 2-5-1995 producing plaint as Exh.P.N. And another plaint Exh.P.M. Being a suit for rendition of accounts. It was admitted that the said suits were filed by Attique when he was in jail through his attorney: The witness admitted that Muhammad Iqbal was his father-in-law. Akhtar
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Majeed not produced before the Court was admitted to be the brother of Tahir son-in-law of Muhammad Sarwar, elder brother of Sh. Muhammad Iqbal P.W.1. 19. Sh. Muhammad Iqbal father-in-law of the complainant appeared as P.W.1 and in the examination-in-chief merely tendered a copy of the gift deed Exh.P.G where in Haji Muhammad Siddique gifted the property in favour of his second wife Mst. Badshah Sultana and her three sons Muhammad Attique one of the appellants, Muhammad Rafique and Muhammad Naeem. At this juncture it may be mentioned that Haji Muhammad Siddique had earlier married Zainab Bibi and after her death he took Badshah Sultana as his second wife from whose womb Muhammad Attique was born. Muhammad Usman, Muhammad Ilyas and others were sons from Zainab Bibi whereas a daughter by the name of Amt-ul-Hafeez sister of Muhammad Usman and others was married to Sh. Anwar brother of Sh. Muhammad lqbal and Qadeer deceased was his son. Sh. Muhammad Iqbal P.W.1 also produced partnership deeds Exh.P.H. And Exh.P.J. For the year 1994. In the partnership deed Exh.P.H. Muhammad Attique and her mother were also partners in Sandal Surgico. This witness was abroad when the occurrence took place and reached the country on 9- 9-1994. He admitted that Abdul Qadeer deceased did not control the affairs of the business and that he told the police that Muhammad Usman and other step-brothers of Attique appellant were unhappy as their late Mather Haji Muhammad Siddique had gifted the houses in favour of Attique and his Mother and, therefore, no share in the factory would be given to Attique unless equivalent shares were given in the houses. Muhammad Iqbal stated that he was appointed Arbitrator by the parties to settle their dispute, obviously referring to a dispute between Usman and others on one hand and appellant Attique on the other hand. However, there is nothing on record to show that Attique in writing appointed him an Arbitrator rather Muhammad Rafique brother of appellant Attique had given two stamp papers Exh.D.B./1 and Exh.D.B./2 for preparation of an agreement of arbitration but the same could not be completed. Although Muhammad Rafiq is shown to have purchased the stamp papers but the same were in favour of Sh. Iqbal Sandal and Zafar Iqbal Anand. It was admitted by the witnesses that he did not prepare any written proceedings, of arbitration. 20. Mansoor Alam Spaul has been produced as P.W.8. He stated that appellant Attique was his friend and he also knew the deceased Sh. Qadeer. Attique appellant met him about 20/22 days before the murder of the deceased and he informed him that he and his brothers have no position in the property because of Sh. Qadeer and he had contemplated that the hurdle had to be removed upon which the witness advised the appellant not to do any such act which may amount to destruction of whole family. It is stated that the appellant was so distressed and thought that he had no position in Sandal Surgico. The witness volunteered that he asked Sh. Muhammad Iqbal P.W.1 to get the differences settled immediately as he was an Arbitrator in the dispute and the reply which he got from Sh. Muhammad Iqbal was in the affirmative, however, the settlement was postponed till Iqbal returned from abroad. Maqsood Aslam P.W.8 admitted that Muhammad Iqbal P.W.1 resided in the same vicinity where he resided i,e, Mohallah Pindi Arainan and 5/7 families of Sandal caste related to Sh. Iqbal also resided together in an area which has common boundary wall. He admitted that he did not know the real nature of difference of disputes between Sh. Qadeer and Attique and only knew that Sh. Iqbal P.W. Was an Arbitrator regarding some property between them about which Qadeer had appointed Sh. Iqbal as an Arbitrator. No such confirmation has come on record that Qadeer in his lifetime appointed Sh. Muhammad Iqbal as an Arbitrator. To the contrary Muhammad Rafiq purchased stamp papers in the name of Sh. Muhammad Iqbal and one Zafar. The witness even did not know about the differences or disputes between the deceased and the appellant Attique. He admitted that, he only visited the house of Attique only once and that too he had no specific job and is unable to name the year of his visit. The witness who is merely an acquaintance of the appellant would not be approached to get the differences resolved with
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another partner of the same concern.. If there was any difference Sh. Iqbal could have been the appropriate person to be acting as an Arbitrator. Services of a middle man would be totally superficial. Testimony of this witness has been provided in an futile attempt to prove the motive on the part of the prosecution. This witness admittedly has been connections with Sh. Muhammad Iqbal P.W.1 as not only both of them resided in the same Mohallah but the witness has been contesting election and Sh. Iqbal has helped him in these ventures. His evidence could have assumed importance if corroborated by Sh. Iqbal P.W.1. The prosecution only produced him to prove two documents and even in cross-examination embarked upon by defence, though risky, about motive, P.W.1 did not at all revert to have confirmed about a request to act as an arbitrator, made by this witness. The prosecution, therefore, has failed to prove the motive suggesting that there was a long standing dispute between the deceased and Attique appellant regarding management of Sandal Surgico. The…
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