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Petitioner: MUHAMMAD AKBAR and 6 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Zafar Yasin, Sheikh Abdur Razzak Title: MUHAMMAD AKBAR and 6 others vs THE STATE Case No.: Criminal Appeals Nos.62, 59, 70 and Murder Reference No,11 of 1999 Date of Judgment:2001-08-22 Reported As: 2002 P Cr. L J 870 Result: Order accordingly
JUDGMENT
JUDGMENT ' SHEIKH ABDUR RAZZAQ, J.---This judgment will dispose of Murder Reference No,11 of 1999 and Criminal Appeal No,59 of 1999 filed by Muhammad Aslam son of Ghulam Nabi and Muhammad Amjad son of Muhammad Aslam and Criminal Appeal No,62 of 1999 filed by Muhammad Akbar son of Muhammad Aslam, Muhammad Iqbal son of Abdul Ghafoor, Iftikhar son of Mushtaq, Abdul Haq son of Abdul Aziz Mehmood son of Muhammad Ashraf, Muhammad Javed son of Abdul Majeed and Muhammad Riaz son of Muhammad Sarwar who were convicted and sentenced by the learned Additional Sessions Judge, Chishtian vide judgment dated 2-4-1999 as under: ' Muhammad Aslam and Muhammad Amjad. (i) Both were convicted under section 302(b), P.P.C. And sentenced to death. They were also sentenced to pay Rs,50,000 each as compensation to the legal heirs of Muhammad Jamil deceased and in default thereof to suffer further S.I. For six months. (ii) Both the above named appellants were also convicted under sections 324/149, P.P.C. And sentenced under its first part for 10 years' R.I. Each and to pay a fine of Rs,30,000 each or in default thereof to further suffer S.I. For three months each. They were also convicted and sentenced under Part II of 324/149, P.P.C. And sentenced to undergo R.I. For 7 years and to pay Rs,30,000 each as fine or in default thereof to suffer S.I. For three months each. (iii) They were further convicted under sections 452/149 and sentenced 7 years' R.I. Each with a fine of Rs,30,000 each and in default thereof to undergo S.I. For three months each. (iv) They were further convicted under section 148, P.P.C. And sentenced to R.I. For three years each with a fine of Rs,20,000 or in default thereof to undergo S.I. For three months.
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' Muhammad Akbar, Muhammad Iqbal, Iftikhar, Abdul Haq. Mehmood, Muhammad Javed and Muhammad Riaz appellants. ' All the above named appellants were convicted under sections 302(b)/149, P.P.C. And sentenced to imprisonment for life. All of them were sentenced to pay Rs,50,000 each as compensation to the legal heirs of the deceased and in default thereof to suffer further S.I. For six months. (ii) Under sections 324 Part 1/149, P.P.C. For ten years R.I. Each and a fine of Rs,40,000 each or in default thereof S.I. For three months. (iii) Under sections 324 Part-II/149, P.P.C. ' Seven years' R.I. And a fine of Rs,30,000 each or in default thereof to further undergo S.I. For three months. (iv) Under sections 452/149, P.P.C. ' Seven years' R.I. Each and a fine of Rs,30,000 each or in default thereof S.I. For three months. (v) Under section 148, P.P.C. ' Three years' R.I. Each and a fine of Rs,20,000 each or in default thereof.S.I. For three months. ' All the appellants were extended the benefit of section 382-B, Cr.P.C. 2. Alongwith this, Criminal Appeal No,70 of 1999 has been filed by the complainant Bashir Ahmad against the acquittal of Maqbool Ahmad and Abdul Ghani. 3. In the instant case the occurrence took place on 20-4-1997 at 4-30 p.m. Whereas F.I.R. No,61 of 1997 was registered at 6-45 p.m. At Police Station Daharanwala on the statement of complainant Bashir Ahmad which was recorded by Muhammad Ramzan S.-I. (P.W.10). 4. Briefly stated the prosecution story as unfolded by complainant Bashir Ahmad (P.W.2) in F.I.R. (Exh.P.A) is that he is resident of Chak No,112 Murad Azafi Basti and cultivates land acquired by him on lease. Ihata No,18 has been allotted in the name of Muhammad Sarwar and Majeed Ahmad sons of his brother Abdul Rashid who have constructed house in the said Ihata and are residing therein. Mukhtar Ahmad son of Fateh Muhammad and Ghulam Mustafa son of Imam Baldish are also co-sharers in the said Ihata. Muhammad Aslam son of Ghulam Nabi wanted to obtain that Ihata. However, the said Ihata was allotted to Muhammad Sarwar and Majeed Ahmad being in their possession. This caused grievance to Muhammad Aslam who issued threats of dire consequences to the complainant and others on that score. On 20-4-1997 on 4-30 p.m. The complainant alongwith his son Muhammad Jamil, brother Abdul Rasheed, nephew Abdul Hafeez and Muhammad Sharif son of Sher Muhammad alongwith Mumtaz Ahmad son of Fateh Muhammad was present in front of Kotha situated in the said Ihata. Suddenly Muhammad Aslam son of Ghulam Nabi armed with 7 MM rifle, Muhammad Sarwar, Muhammad Arshad, armed with iron bars whereas Maqbool Ahmad and Atta-ur-Rehman, Muhammad Iqbal, Muhammad Amjad, Muhammad Akbar, Abdul Haq, Mahmood, Javed, Abdul Ghani, Haji Noor Din, Muhammad Sabir, Shabbir Ahmad, Iftikhar and Muhammad Riaz armed with 12 bore guns appeared and Abdul Ghani as well as Haji Noor Din raised lalkara for teaching a lesson to them for getting that Ihata allotted in their favour. Apprehending danger at their hands, they ran out of Ihata upon which Muhammad Iqbal fired with his 122 bore gun which hit Muhammad Sharif P.W.5 on his back and he fell on the spot. The second fire was made by Muhammad Amjad accused with his gun which hit his son Muhammad Jamil since deceased on his legs and as a result thereof he ran towards the street. Muhammad Aslam accused then fired with 7 mm rifle upon his son Muhammad Jameel which hit him on the back of his head resulting into his fall on the ground. Iftikhar accused fired with his gun which hit Mukhtar Ahmad P.W.6 on his buttock. His brother Abdul Rasheed P.W.3 tried to escape from the assailants upon which he was given a blow with iron bar by Muhammad Sarwar on his head. He was given another similar injury by Muhammad Arshad upon his head. As a result of said injuries he (Abdul Rasheed P.W.7) fell and was given further blows by them on back. The other accused fired upon them. However, they saved themselves by lying on the ground and
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consequently the said fire hit the door as well as Kotha. As a result of firing of the assailant Abdul Hafeez also received fire-arm injury on his head. In the meanwhile, all the accused entered into the Ihata and accused Bashir Ahmad set the luggage lying in the Chapper on fire whereas Maqbool Ahmad .Set the outer gate of the said Kotha on fire. The accused Atta-ur-Rehman set the other Chapper on fire whereas the remaining accused went inside the Ihata of Muhammad Sadiq and set it on fire. On their hue and cry Bashir Ahmad alias Manga and Fazal Elahi son of Nawab were attracted. Seeing them coming the accused left the said place issuing threats of dire consequences to them. The complainant found that his son Muhammad Jameel had expired. Leaving Bashir Ahmad and Fazal Elahi on the spot to guard the dead body of Muhammad Jameel, he left for police station alongwith Ali Muhammad whereas Abdul Rashid, Muhammad Sharif, Mukhtar Ahmad and Abdul Hafeez were removed to Civil Hospital, Chishtian for treatment. 5. Muhammad Ramzan, Inspector (P.W.10) recorded F.I.R. (Exh.P.A), inspected the place of occurrence, prepared its rough site plan (Exh.P.M), secured blood-stained earth from the place of occurrence, took into possession after making into a sealed parcel vide memo. Exh.P.B. Secured empty cartridge P.1 of 12 bore gun and 2 empties of 7 mm rifle Exh.P.2/1-2, made them into sealed parcels and took them into possession vide memo. Exh.P.C., took the ashes of burnt Chhaper P3 and half-burnt pieces of wood P.4/1 to 7 and took them into possession vide memo. Exh.P.D. He further prepared inquest report Exh.P.L./3 and dispatched the dead body through Nazir Ahmad, Constable (P.W.16) for post-mortem examination. After spot inspection he visited hospital and recorded injury statements of Abdul Rashid Exh.P.G./1, Muhammad Sharif Exh.P.H/6, Mukhtar Ahmad Exh.P.J./3 and of Abdul Hafeez Exh.P.K./2. On 21-4-1997 Nazir Ahmad, constable produced before him last worn clothes of deceased P.7, 8 and 9 which he secured vide memo. Exh.P.N. On 27-4-1997 he arrested accused Bashir Ahmad, Muhammad Iqbal, Muhammad Sabir, Muhammad Maqbool, Muhammad Sarwar, Atta-ur-Rehman and Muhammad Arshad. On 28-4-1997 he arrested accused Mehmood, Muhammad Javed and Abdul Ghani. On 2-5-1997 accused Muhammad Iqbal led to the recovery of .12 bore gun P.10 and licence P.11 which he secured vide memo. Exh.P.P. On the same day Muhammad Sarwar and Muhammad Arshad led to the recovery of iron bars P.12 and P.13 which he secured vide memo. Exhs.P.Q. And PR respectively. On the same day the complainant also produced documentary evidence regarding the allotment of Ihata No,18 which he secured vide memo. Exh.P.T. On 12-5-1997 he arrested accused Abdul Haq and on 19-5-1997 he got the site plans prepared through Khalil Ahmad Draftsman P.W.12. After completing investigation the accused were sent up for trial. 6. A charge under sections 302/324/452/436/148/149, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial. 7. In order to bring home guilt to the accused prosecution examined P.W.1 Mehmood-ul-Hassan constable who was entrusted the warrants for execution upon absconders. The prosecution also examined Bashir Ahmad complainant P.W.2 who reiterated his version as given in the F.I.R. Exh.P.A. Abdul Rashid P.W.3, Muhammad Sharif P.W.5 and Mukhtar Ahmad P.W.6 are injured eye-witnesses and they have corroborated the prosecution version. Fazal Elahi P.W.4 is also an eyewitness of the occurrence as well as marginal witness of memo. Exhs.P.C. And P.D. Abdul Hafeez P.W.7 identified the dead body of Muhammad Jamil whereas Ali Muhammad P.W.8 is a marginal witness of memo. Of recovery of rifle 7 mm P.5 of accused Muhammad Aslam which was secured vide memo. Exh.P.E. He is also marginal witness of memo. Of recovery Exh.P.F, whereby .12 bore gun P.6 belonging to Muhammad Amjad was secured. Dr. Hafiz Muhammad Tariq Javed, Medical Officer P.W.9 examined Abdul Rashid injured on 20-4-1997 and found the following injuries on his person:- (1) A lacerated wound over the right temporal region above the right ear oblique in direction measuring 2 x 1 c.m. x skin deep. The wound is present over the selling which is measuring 4 x 3 c.m. Advise X-ray skull.
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(2) A lacerated wound on the right side of fore-head measuring 1 x 3 c.m. X skin deep. Advise X-ray skull. (3) A swelling present over the right eye measuring 6 x 3 c.m., colourable on eye back swelling is bluesh black. Vide X-ray No,323 dated 20-4-1997 a fracture was seen in the skiagram of skull. He deposed that duration of injuries was within six hours and were caused by blunt weapon. He produced carbon copy of medico-legal report Exh.P.G. Which bears his signatures. He also signed injury statement Exh.P.G/1, Skingram Exh.P.G/2, X-ray film Exh.P.G/3 and Exh.P.G/4. ' On the same day he also examined Muhammad Sharif injured and found following injuries on his person:-- (1) Multiple lacerated wounds with inverted margins rounded in shape measuring 1/4 c.m. Diameter in an area of about 32 x 34 c.m. Over the back of chest and upper abdomen. Corresponding holes present over the Kameez. No burning, blackening present over the clothes and also over the body. Advised X-ray chest AP view and X-ray upper abdomen AP view. Depth not ascertained. Wounds are deep going. (2) A small abrasion over the left side of chin. 1 x 1/4 x skin deep. (3) Six lacerated wounds with inverted margins rounded in shape measuring 1/4 c.m. Diameter over the back of left upper arm corresponding holes present over the Qameez. No blackening or burning present. Advice X-Ray left upper arm. The wounds are muscle deep and are crushed. (4) Three lacerated wounds with inverted margins rounded in shape measuring 1/4 c.m. Diameter over the back of right upper arm. Corresponding holes present over the Kameez. No burning or blackening present. Wounds are muscle deep and are crushed. ' On the same day he also examined Mukhtar Ahmad injured and found two injuries on his person which are as follows:-- (1) A lacerated wound just above the right buttock oval in shape with inverted margins measuring 1 x 1/2 deep going. No burning, blackening present. Advised X-ray Sacral spine AP view. Corresponding holes present in the Qameez. (2) A lacerated wound on the front of the leg measuring 1-1/2 x 1/2 c.m. x skin deep vertical in direction. ' He issued M.L.C. Exh.P.J which bears his signature. He also examined Abdul Hafeez on the same day and found following injury on his person:-- ' A lacerated wound on the left side of head at the middle part of head with inverted margins measuring 1/2 x 1/4 c.m. x skin deep. The entrance and exit wound both fuses each other, making a groove. Nothing burning or blackening present at the site of injury. ' He issued M.L.C. Exh.P.K . Sketch of injuries Exh.P.K .1 and also signed statement of injuries Exh.P.K.2. ' On 21-4-1997 he conducted the post-mortem examination of Muhammad Jamil and found the following injuries on his person:-- (1) A lacerated wound with inverted margine rounded in shape measuring 1 c.m. Diameter on the right side of back of neck. No burning or blackening present. This was the entrance wound. On exploration Atlas vertebra fractured. Spinal cord damaged. (2) Lower part of occipital bone fractured. On following the tract membranes of brain ruptured. Brain matter damaged. Blood present in the crave cavity. Left orbit fractured. The superior wall or orbit damaged alongwith whole left eye ball damaged. This was the exit wound which is injury No,2. Advised X-ray skull AP view. (3) Two lacerated wounds with inverted margins rounded in shape measuring 1/4 c.m. Diameter on the anterior aspect of right leg. No blackening or burning present. Advise X-ray right leg. AP/lot. (4) Three lacerated wounds with inverted margins rounded in shape measuring 1/4 c.m. Diameter on the inner aspect of left foot. No burning or blackening present. Advise X-ray left foot AP. Lot.
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(5) A lacerated wound at the outer aspect of left elbow oblique in direction measuring 2 x 1/2 c.m. x skin deep. ' In his opinion injury No,1 was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem in nature and caused by fire-arm except injury No,5 which was of blunt weapon. Time between injuries and death was instantaneous whereas between death and post- mortem was within 15 hours. He produced carbon copy of post-mortem examination report Exh.P.L diagram Exh.P.L/1 and 2 and also inquest report Exh.P.L.3 which all bear his signatures Muhammad Ramzan, Inspector P.W.10 is the Investigating Officer whose evidence has already been discussed above. Muhammad Rafique H.C. P.W.11, was given parcels containing blood-stained earth and empties by S.-I. Muhammad Ramzan on 21-4-1997 for keeping the same Malkhana. On 7-5-1997 he handed over said parcels to Muhammad Nawaz constable P.W.13 for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory respectively. Khalil Ahmad, Draftsman P.W.12 visited the spot and on 19-5-1997 prepared the site plan Exhs.P.S./P.S./1 and handed over the same to the Investigating Officer on 19-5-1997. Muhammad Nawaz, constable P.W.13 corroborated the version of P.W.11 Muhammad Rafique, Muhammad Abbas, constable P.W.14 was given two parcels containing rifle and .12 bore gun on 20-80-1998 for onward transmission to the office of Forensic Science Laboratory. Muhammad Rashid constable P.W.15 is a marginal witness of memo. Exh.P.0 whereby 12 bore gun p.14 was taken into possession which was produced by Rashid alias Bagga. Nazir Ahmad, Constable P.W.16 escort the dead body of Muhammad Jamil on 20-4-1997 for postmortem examination. Thereafter, he handed over last worn clothes of deceased P.7 and P.8 which were secured by the Investigating Officer vide memo. Exh.P.N. Which bears his signatures. Muhammad Ashraf P.W.17 effected recovery at the instance of Riaz accused who let to the recovery of 7 mm rifle P.15 and licence P.16 which were secured vide memo. Exh.P.B on 12-9-1997. On 16-9-1997 he secured .12 bore gun P.14 produced by Iftikhar accused and prepare memo. Exh.P.U. Kafayat Hussain Shah S.H.O. P.W.18 arrested accused Muhammad Aslam and Muhammad Amjad and Muhammad Akbar on 27-7-1998. On the same day the accused Muhammad Aslam led to the recovery of 7 mm rifle P.5 which he secured vide memo. Exh.P.E. On the same day the accused Muhammad Amjad led to the recovery of .12 bore gun P.6 which he secured vide memo. Exh.P.F. The learned D.D.A., produced report of Chemical Examiner Exh.P.W., report of Serologist Exhs.P.X and N of Forensic Science Laboratory Exh.P.Y and closed the prosecution case vide his statement dated 23-2-1999. 8. When examined under section 342, Cr.P.C. The accused Muhammad Aslam denied the prosecution version and in reply to Question No,12 as to why he had been involved in this case he stated as follows:-- "Yes, I, my co-accused present in Court and Haji Noor Din since dead are innocent. I have no dispute with Abdur Rasheed P.W. Or with his sons. I also have no dispute or enmity with Jamil since deceased or his father Bashir Ahmad P.W. Messrs Abdul Majeed, Nazir Ahmad, Latif, Khushi Muhammad son of Eida my co-villagers had dispute with Amir Sajjad son of Akram and Sardar son of Rasheed over Ihata No,18. The complainant of this case and Abdur Rasheed P.W. Are landless, labourers. They have .No right of allotment of any Ihata measuring 1 Kanal or 2 Kanals. Akram Jat is head of Jat clan and is an influential person. He had many Ihatas of the village in his illegal possession through his brother Sadiq, his son Amir and Abdur Rasheed P.W. And his son. In a such- like incident Iqbal son of Rehmat Ullah Jat his relative illegally occupied one Ihata and began to construct it. When this fact came in public notice, a dispute occurred as the Ihata belonged to one Abdul Hameed son of Haji Ali Muhammad Arain. A Punchayat was convened. Abdul Hameed paid Rs,28,000 as a price of structure to Iqbal and got back possession of the Ihata. A writing about receipt of the money and surrendering of possession was made. Akram Jat and Iqbal signed it. I
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produce photocopy of the writing and copies of three 'Robkars' from Commissioner Office, Bahawalpur relating to an Ihata in Chak Nos.112 and 113 Murad. ' Originally I had been residing in Chak No,112/Murad and since long have shifted to Lahore. Akram Jat brought me from Lahore particularly so that I should prove against Noor Din a snake in grass. But when his real intention revealed upon me, I refused to dance on his tune. Akram misappropriated money that I had brought from Lahore after selling my plot over there. As I refused to play in the hands of Akram Jat he turned hostile to me 4/5 days before the occurrence I intercepted Akram Jat while he was riding his motor-bike and harshly demanded of him my money. This accelerated his fume and fury against me. ' On the fateful day Khushi Muhammad son of Eida and his companions on one hand and my co- accused already acquitted namely Atta-ur-Rehman, Sarwar, Sabir, Arshad and Bashir on the other hand had fight because of their dispute over Ihatas. Jamil lost his life in that dispute and the injured P.W.5 sustained injuries. I, Haji Noor Din or my co-accused now present in the Court took no part in this fight. But after the occurrence, Akram Jat maneuvered present case against me and my co-accused present in Court because of his influence over the complainant party and his clout in local police. They even before registration of the F.I.R. Received heavy amount from Khushi Muhammad etc. The real assailants and let them off. During trial the complainant party and injured P. Ws. Including heirs of Jamil deceased received Diyat money, Arsh, Daman and compensation for the damage to their property from Sarwar, Atta-ur-Rehman, Bashir, Sabir and Arshad and effected a compromise with them and now want us to be punished though we are innocent. If we had been involved in the incident, they would have received compensation from us. But we refused to make any payment as we are innocent. We refused to play in the hands of Akram Jat. So far as delay in my appearance before police I say that from the day of registration of this case, Akram Jat had been encouraging me and inducing me, not to appear before police. He had been giving me an assurance that he would manage for my let off as he did in case of Khushi Muhammad and Eida etc. As his conditions for this were very harsh so I refused to accept them and appeared before police of my own. Nothing was recovered from us." ' The other accused Muhammad Amjad, Muhammad Akbar, Muhammad Iqbal, Maqbool Ahmad, Iftikhar alias Nikka, Abdul Hach Abdul Ghani, Mehmood Ahmad, Javed and Riaz-ul-Haq have also denied the prosecution version and adopted the statement of Muhammad Aslam accused given in reply to Question No,12 referred above. 9. None of the accused except Muhammad Aslam recorded his own statement under section 340(2), Cr.P.C. Or produced any evidence. The accused also examined Muhammad Azam as D.W.2, and Muhammad Akram D.W.3. The accused Muhammad Aslam also produced attested copies of documents Exhs.D.E., D.F. And D.G. 10. After going through the evidence referred above and hearing the learned counsel for the parties the learned trial Court convicted and sentenced the accused as referred above. 11. The appellants have felt aggrieved of the said judgment and filed the instant Criminal Appeal No,59 of 1999 and Criminal Appeal No,62 of 1999. The learned trial Court has also forwarded Murder Reference No,11 of 1999 as contemRlated under section 374, Cr.P.C. Complainant Bashir Ahmad has felt aggrieved of acquittal of Abdul Ghani and Maqbool Ahmad and filed Criminal Appeal No,70 of 1999. 12. As the aforesaid criminal appeals and Murder Reference arise out of the same judgment, so these are being disposed of by this single judgment. 13. We have heard the learned counsel for the appellants as well as the learned counsel for the complainant assisted by the learned counsel for the State and have also gone through the record minutely.
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14. At the very outset Mr. Khurram Mehmood Sadiq Malik, Advocate, learned counsel for the appellants challenged the very jurisdiction of the learned trial Court to hold trial. He contended that one of the offences charged against the accused/appellants falls under section 436, P.P.C. Which falls within the purview of Schedule annexed to the offences triable by the Court constituted under Suppression of Terrorist Activities Act so the trial should have been conducted by the said Court and the learned trial Court had no jurisdiction to try this case. He next contended that prosecution versi6n becomes highly doubtful as the report of Forensic Science Laboratory creates doubt regarding the weapon alleged to have been used in the commission of this offence. To elaborate his second contention, he submitted that the empties sent to Forensic Science Laboratory have not been found wedded with the weapons used in the commission of this offence. He next argued that the presence of the complainant on the spot is highly doubtful. He contended that as many as 17 persons are said to have participated in this occurrence, as a result of which as many as four persons are said to have received injuries and one died. However, the complainant did not receive even a scratch on his person. He argued that had the complainant been present on the spot he must either have been injured or at least must have received some scratch on his body. Non- presence of either of the any injury or scratch on his person makes his presence highly doubtful. He next argued that as per contents of F.I.R. Exh.P.A. The complainant removed the injured to Tehsil Headquarters Hospital, Chishtian for treatment and proceeded himself to the police station for lodging the F.I.R. This contention of the complainant, it is submitted, stands falsified from the Medico-Legal Certificates of the injured which reveal that they had been sent to the said hospital in the company of Abdul Rashid, Constable. He next argued that there are contradictions in the oral evidence regarding the place of firing by Muhammad Aslam accused on the person of Muhammad Jamil deceased. He contended that according to site plan Muhammad Aslam accused is said to have fired upon Muhammad Jamil from Point No,8 which is situated about 280 feet away from Point No,1 where the dead body of Muhammad Jamil was lying. He further argued that as per contents of F.I.R. The accused are said to have entered the Ihata and then started firing culminating into the death of Muhammad Jamil and causing injuries on the persons of injured Abdul Rasheed, Muhammad Sharif, Mukhtar Ahmad and one Abdul Hafeez (not produced). However, Muhammad Jamil deceased…
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