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Petitioner: MUMTAZ AHMAD alias TAJI AND ANOTHER VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Mazhar-ul-Haq Title: MUMTAZ AHMAD alias TAJI AND ANOTHER vs THE STATE Case No.: Criminal Appeal No. 391 of 1982 Date of Judgment:1983-03-15 Reported As: PLD 1984 Lahore 48 Result: Appeal accepted
JUDGMENT
JUDGMENT ' Mumtaz (25), Umer Hayat (24), Mst. Bashiran (24), Bashir (26), Asghar (26) and Faiz Ahmad were sent up for trial for the murder of Atta Muhammad. All accused were charged for the offences under section 148/ 302, P. P. C., read with section 149, P. P. C. 201/380, P. P. C. During the course of the trial Bashir and Asghar, accused, turned approvers, they were, therefore, examined as witnesses in this case. Since Faiz, accused who was on bail absconded, he was proceeded against under section 512, Cr. P. C. Ch. Inayat Ullah Cheema, Addl. Sessions Judge, Gujrat, convicted Mumtaz and Umar Hayat for the offences. They were sentenced to life imprisonment under section 302 read with section 149, P. P. C. And to a fine of Rs. 5,000 each in default to undergo six months R. I., under section 148 to one year R. I. Each, under section 380, P. P. C. Mumtaz was sentenced to 4 years' R. I. And to a fine of Rs. 2,000 in default to undergo six months' R. I. On this count Umar Hayat was also sentenced to six months R. I. And to a fine of Rs. 500 in default to undergo two months, R. I. Further, under section 201/34 P. P. C. They were sentenced to 7 years, R. I. Each and to a fine of Rs. 2,000 in default to undergo six months, R. I. Their sentences were ordered to run concurrently. Mst. Bashiran was acquitted of the charges. The appeal of the convicts and the revision for enhancement are before me. 2. Mumtaz, accused, suspected Atta Muhammad, deceased, of illicit relation with his sister Mst. Mukhtaran. He conspired with his co-accused to do away with Atta Muhammad who lived in Munshi Mohallah, Mandi Bahauddin near the house of Mumtaz. On or about 12th of August, 1978 in the afternoon on a false pretext Mumtaz, Umar Hayat, Bashir, Asghar and Faiz brought Atta Muhammad to the house of Mumtaz. Mst. Bashiran who was in the house of the deceased also came alongwith them. On reaching there, Mumtaz put a piece of cloth, around the neck of Atta
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Muhammad and stangulated him. The others gripped him. He enquired as to what were they up to. Mumtaz, accused, told him that since he had a liaison with his sister Mst. Mukhtaran, he was, therefore, going to avenge the insult. Mumtaz twisted the cloth around his neck till he was dead. Thereafter, they went to the house of the deceased, bolted the door from inside and told Mst. Bashiran if any should-come, she should give out that the deceased was not at home. They stayed there till late at night. They searched the house of the deceased. Mumtaz, removed a television set, a pistol and currency notes of the value of Rs. 9000. Umer Hayat removed a bed sheet and a radio 'set Faiz, took a blanket, Bashir and Asghar removed three bed sheets each. Mst. Bashiran took two lady suits and with these articles, they came back to the house of Mumtaz. Umar Hayat, Mumtaz, Faiz and Bashir put the dead body in deceased's car. ' Asghar and Mst. Bashiran stayed behind. Mumtaz paid Rs. 100 to Asghar and Rs. 300 to Mst. Bashiran, directing them to go home in the morning. The four accused took away the dead body in the car near Mano Chak. On reaching near a small bridge, they took out the dead body, cut it into pieces with a toka which they were carrying. Umar Hayat and Faiz threw the pieces of the dead body in the canal. Mumtaz had removed the golden ring of the deceased. Faiz, absconder, removed his wrist watch and pair of Chappal. The wraped a stone around the clothes of the deceased and threw them into the canal. After disposing of the dead body, they went to Lahore and stayed there for three days for selling the car which they could not. They took the car to the Dera of Ghuman in the area of Sukha Tah : Phalia, where it was parked for about 2/3 days. Mumtaz, Umar Hayat and Faiz then took away the car for leaving it at a deserted place. Two and a half months later, P. W. Raja Khan (informant) father of the deceased alongwith others came over to the house of his son and found him missing. He made inquiries and learnt from P. W. Noor Muhammad, who was deceased's neighbour, that on 12-8-1978 in the afternoon, he had last seen the deceased in his house in the company of the six accused and another woman whom he did not know but could identify her. After receiving this information, the lock of the outer door of the deceased's house was broken open. The house appeared to have been ransacked by the culprits and a large number of things were missing of which decased's wife prepared a list. On Raja Khan's queries, all accused confessed guilt and also gave the datails 1. c. The manner in which the deceased's articles were distributed by them among tlfemselves and that the car was abandoned on a payment near Kharian. Raja Khan went to Kharian and found his son's car in the Police Station Kharian. After having satisfied himself that the accused were the real culprits, he got application Exh. P. A. Drafted on 2-11-1978 through P. W. 1 Ch. Abdur Rahim, Advocate, Mandi Bahauddin on the basis of which formal F. I. R. Exh. P. A./1 was registered at the Police Station the same, day in the afternoon at 12-15. P. W. Ch. Manzoor Hussain, S. I., P. S. Mandi Bahauddin after registering the case went to the house of Atta Muhammad, deceased. He recorded the statements of the P. Ws. And then went to the house of Mumtaz, accused, inspected the place of occurrence and searched for the accused. Except Mst. Bashiran, he arrested the other accused on 7-11-1978. Mst. Bashiran was arrested on 20-11-1978. On 18-11-1978 P. W. Raja Khan, produced before the S. I. a copy of the registration of Car No. PRV 548 P. 18, it was taken into possession through memo. Exh. P. L. On 19-11- 1978 Faiz (now absconder), led the S. I. To the recovery of wrist watch P. 14, a pair of Chappal\ P. 15/1-2, a bed sheet, P. 16 and a blanket P. 17 from the house of P. W. 12 Ahmad Khan, a resident of village Bhiki. These articles were taken into possession vide memo Exh. P. G. Attested by P. W. 12 Ahmad Khan, P. W. 10 All Ahmad and Nadir Khan (not produced). On the same day P. W. Bashir, (approver) got recovered three bed sheets P. 8 to P. 10 from his house which he had hidden them in a Bharoli. They were taken into possession vide memo Exh. P. H. Attested by P. W. 10 Ali Ahmad, P. W. 14 Noor Muhammad and Nadir and Shana (not produced). Same day P. W. Asghar, (approver) also
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got recovered three bed sheets P. 11 to P. 13 from his house which he had hidden in a Bharoli, these were taken into possession vide memo. Exh. P. 3. Attested by the same aforesaid witnesses. The same day, Umar Hayat in custody got recovered radio set P. 5, a bed sheet P. 6 from underneath the heap of wood lying in his house. These were taken into possession vide memo. Exh. P. C. Attested by P. W. Karam Ali, Ali Akbar, Nadir: and Manik (not produced). On 20-11-1978, Mst. Bashiran in custody got recovered shirt P. 3, Shilwar P. 4 and lady suits P. 2/1-2 which were taken into possession vide memo. Ex. P. K. Attested by Ghulam Haider (P. W. 13) and Ahmad Yar (given up). On 21-11-1978 Mumtaz, accused, in custody led to the recovery of pistol P. 21, golden ring P. 1, and currency notes of the value of Rs. 9,000 P. 22/1-90 from a heap of wood lying in his house. These ankles were taken into possession vide memo. Exh. P. 0. Attested by Mutalli P. W. 16 and Yara (given up). The same day Mumtaz, accused, led to the house of P. W. Muhammad Fazil in village Mangat, Teh. Phalia from where he got recovered television Exh. P. 7 which was taken into possession vide memo. Exh. P. E. Attested by P. W. 7 Muhammad Fazil, P. W. 16 Mutalli, Yara, Mukbtar Ahmad and Muhammad Roshan (not produced). P. W. Muhammad Fazil also produced its receipt P. D. Through which he had purchased the television set from Mumtaz, accused, it was also taken into possession through memo. Exh. P. F. Attested by the same aforesaid witnesses. On 21-11-1978 Mumtaz and Faiz, accused, pointed out the place where they had deserted deceased's Car No. PRV 548. The S. I. Looked around that place and in a nearby cluster of trees, he found the number plates P. 20/1-2. These were taken into possession vide memo. Exh. P. N. Attested by P. W. Raja Khan and Muhammad Anwar. P. W. Raja Khan produced licence P. 19 of pistol of Atta Muhammad, deceased which was taken into possession vide memo. Exh. P. M. Attested by P. W. Raja Khan and Manzoor Hussain, S. H. 0. On 4-12-1978 P. W. 18 Muhammad Safdar, S. H. O.; who had also investigated the case got the recovered articles identified by P. W. Raja Khan, MusarratBibi the daughter of the deceased and his wife Mst. Sughtan through memo. Of identification Exh. P. U. Attested by the aforesaid persons. P. W. 4 Abdul Aziz, Goldsmith, identified the golden ring which he had prepared for the deceased. P. W. 5 Muhammad Sadiq, Tailor master, identified the clothes of the deceased. After completing the investigation, the accused were sent up for trial., 3. In this case during the course of the trial, on 14-3-1981 Bashir and Asghar, accused appeared before the Sessions Judge, Gujrat for the tender of pardon to become approvers. On .16-3-1981 learned Sessions Judge ordered that since the case was being tried by Ch. Inayatullah Cheema, Addl. Sessions Judge, therefore, the trial Court was competent under section 338, Cr. P. C. To tender pardon. By order dated 19-3-1981, the applications were sent to the trial Court. Allowing the applications, trial Court directed the District Magistrate to tender pardon to both the petitioners on the conditions as required by law. The accused-petitioners who were already on bail, were directed to appear before the District Magistrate, on 21-3-1981. On 22-3-1981, the District Magistrate directed the duty Magistrate to record their statements under section 164, Cr. P. C. On the same day, their statements were recorded. Bashir and Asghar thus turned approvers and later on 17-6-1981 they were examined as witnesses in this case when the trial had already commenced and by then seven prosecution witnesses had already been examined. From this stage, only three accused namely Mumtaz, Umar Hayat and Mst. Bashiran faced the trial and at the close of the prosecution evidence in their examination under section 342, Cr. P. C. The three accused denied guilt and ascribed the case to enmity. 4. Explaining the case against him, Mumtaz, accused said that the deceased was dealing in Travelling Agency .Business. He was a bad haracter, had kept several concubines. Many persons were suspected for his murder who were joined during the investigation. Some were let off by the police. His opposite group in the meanwhile cooked up the case on account of enmity and party faction. Further, explaining the enmity, he made the following statement :-
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"Ch. Jehan Khan, my father who was the member of the Legislature Assembly of Punjab had contested election against Saee Muhammad and Wali Muhammad of village Chimmon Teh. Phalia. They are the relatives of the deceased. Baqari real brother of Atta Muhammad was murdered after the election. My father, my brother and other family members were challaned for the said murder and were ultimately acquitted. Since then there had been criminal litigation between us and the party of Saee Muhammad mentioned above who is related to the deceased. Sultan Muhammad the son of Saee Muhammad who was a D. S. P. In those days had manoeuvred to get the case concocted against me, because in those days Anara son of Saee Muhammad was murdered. My uncle Nur Muhammad was challaned for the said murder." ' Umar Hayat accused gave the following explanation :- "My maternal uncle namely Hyder son of Ziada appeared against Manik and Karam Ali P. Ws. In a case under section 307, P. P. C. Manik and Karam Ali, P. Ws. Are both related to Rajey Khan complainant. My father supported Jehan Khan, the father of Mumtaz accused in the general election and opposed the relative of the complainant-party. The instant case has been brought against me falsely on account of the aforesaid grievance and grudge." ' According to Mst. Bashiran she was falsely roped in because of the .Enmity with the witnesses. 5. No accused led evidence in defence except Umar Hayat who produced a copy of the F. I. R. Exh. D. 1 to prove enmity. Relying on the evidence of the two approvers, evidence of the witnesses who last saw the deceased with them, and the evidence of the recoveries effected from Mumtaz and Umar Hayat, trial Court found the prosecution case satisfactorily proved against the two accused. Insofar as the motive for the crime was concerned trial Court came to the conclusion that prosecution did not satisfactorily prove it, therefore, it remained shrouded in mystery. It gave the benefit of doubt to Mst. Bashiran because the approvers statements insofar as she was concerned was corroborated by interested witnesses whose evidence was not considered safe to be relied upon. 6. Criticizing trial Court's finding, learned counsel for the appellants contended that the evidence of P. W. 8 Bashir and P. W. 9 Asghar, the two approvers, was Inadmissible in evidence because the Magistrate who recorded their statements under section 164, Cr. P. C. Was not examined at the trial. However, it has not been proved by the prosecution that a pardon was granted to them after complying with the legal formalities. He further argued that the trial had commenced and some of the evidence had been recorded when the two approvers were accused in this case and in the amidst of the trial, they were allowed to turn approvers without observing the legal formalities. I have considered this aspect of the case. The provision of section 338 'Cr. P. C. Would meet the defence objection because at any time before judgment is passed, the High Court or the Court of Sessions trying the case may with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in or privy to any such offence, tender, order the District Magistrate to tender, a pardon on the same condition to such person. I, therefore, do not see anything wrong with the proceedings concerning the tender of pardon during the trial. 7. The sole question for determination to my mind in this case would be whether the evidence of the approvers was reliable evidence and was there sufficient corroboration of their testimony. F. I. R. Was got recorded nearly three months after the occurrence by P.W. Raja Khan, father of the deceased who had come over to Mandi Bahauddin from Rawalpindi to know the whereabouts of his son. After having learnt from P. W. 14 Nur Muhammad a neighbour of the deceased, who last saw the deceased in the company of the accused. P. W. Raja Khan did not make a report, instead on his own, interrogated the accused before whom they allegedly made a confession. It appears that thereafter, he consulted a lawyer namely P. W. 1 Ch. Abdur Rahim, Advocate who drafted the complaint Exh. P. A., on 2-11-1978 which is the basis of the F. I. R. In this case. There is no explanation
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as to why the matter was not reported to the police earlier about the disappearance of the deceased. 8. As to the last seen evidence, it was given by P. W. 14, Nur Muhammad, a tenant of the deceased. He was employed as a clerk in the Post Office, Mandi Bahauddin. According to him in August, 1978, he left his office at 10 a. m. To purchase vegetables which he delivered at his house. Since he had to pay Rs. 60 as rent of his house to Atta Muhammad, deceased, he went to his house and called on him. Atta Muhammad, deceased opened the door and the witness saw the five accused in his house and a woman. Thereafter, he returned and never saw the deceased again. He claimed to have disclosed for the first time this fact to P. W. Raja Khan and his companions Ziada and Bahadar, relations of the deceased. At this stage, it may be mentioned that in the F. I. R. P. W. Raja Khan.Had said that he alongwith Bahadar, Ghulam Rasool, Sardar Khan, Lala, Ziada, his brother Muhammad searched for the deceased and on their enquiry P. W. Nur Muhammad, a neighbour of the deceased informed them that, on 12-8-1978 he had seen the accused in the house of the deceased. It is noteworthy that P. W. Nur Muhammad in his statement did not specify the date when he last saw the deceased but the informant has mentioned the date in the F. I. R. However, besides the statement of P. W. Nur Muhammad, there is no other evidence of the deceased having been last seen. The other witnesses mentioned in the F. I. R. By P. W. Raja Khan who were with him when the enquire was made from Nur Muhammad were not produced except Bahadar P.W. 11 who was admittedly a relation of P. W. Raja Khan. He however, puentirely a different story.. According to him, after receiving information from P. W. Nur Muhammad, they went to the house of Mumtaz to enquire about the deceased and they called Bashir, accused (now approver) first who confessed the guilt and in their presence stated the manner in which the deceased was strangulated to death and how his dead body as disposed of. This witness, however, did not mention whether any enquiry was made from any of the other accused. Under cross-examination, he admited that he came to know in November, 1978 that Atta Muhammad (deceased) was missing but on the 2nd or 3rd day of getting the information, he alongwith P. W. Raja Khan lodged the report at Police Station Mandi Bahauddin. He admitted that he did not accompany P. W. Raja Khan to the police station but went there on a meassage sent to him. He further stated that he appeared before the police 5/7 days after meeting Nur Muhammad P. W. According to him, it took 3 hours to enquire from the accused and during this time someone from the complainant-party went to inform the police that the accused had confessed their guilt. Insofar as P. W. Nur Muhammad's story is concerned, on the face of it, it appears to be a made up one. It is not normal for an employee to go out for shopping during office hours and make rent payments. He was examined by the police 31. Months after he last saw the deceased. Although, he was a neighbour and a tenant of the deceased but never became suspicious about his disappearance. He is admittedly a class fellow of the deceased. Although, P. W. Raja Khan had come to Mandi Bahauddin in September, 1978, he started making enquiries but he contacted P. W. Nur Muhammad in the end of October, 1978. It follows that for 2 months, he did not contact him at all. As to how P. W. Nur Muhammad came to know the names of the accused is again F an exaggerated statement made by him. Under cross-examination he stated that he could not say if the accused had told him their names or he had asked them or it was Atta Muhammad who told their names to him. He finally said that during the conversation that he had, when he went to the house of the deceased, he came to know the names of the accused, although, he did not mention what conversation he had and for how long. He admitted that he had not come to know whether Atta Muhammad (deceased) was missing till P. W. Raja Khan asked him. He further admitted that he had made his statement to the police 8/10 days after he met P. W. Raja Khan. He admitted that he did not mention to the police that he left his house for purchasing vegetables and he went to the house of Atta Muhammad for the payment of rent. When questioned about his relationship with P. W. Raja Khan, the witness showed his ignorance by saying
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that he did not' know whether P. W. Raja Khan's wife was the maternal-aunt of the witness's wife. As it is the statement of P. W. Nur Muhammad did not inspire confidence, it even lacked corroboration from the statements of the two approvers. They did not mention that P. W. Nur Muhammad' had come at the house of Atta Muhammad (deceased) for paying rent and had any conversation with them. In fact they did not mention this incident at all. Keeping in view the above analysis of evidence of P. W. Nur Muhammad and the lack of corrboration of his evidence with that of the approvers, his evidence is, therefore, of no value. 9. The next piece of evidence on which the prosecution has relied was the extra-judicial confession made by all the accused before P. W Raja Khan and others before the matter was reported to the police. P. W. 8 Bashir and P. W. 7 Asghar (approvers) deposed that 2/1-2 months after the occurrence, P. W. Raja Khan accompanied by some others, approached them and each accused separately confessed their guilt before them. When confronted with his statement Exh. D. A. Recorded by the Magistrate on 27-3-1981 Bashir (approver) had not stated therein that the confession was made turn by turn. Similarly in his statement Exh. D. B. Asghar (approver) did not state so. The narration in their statements Exh. D. A. And Exh. D. B. Clearly indicates that it was a joint confession, although P. W. Raja Khan only took up the position at the trial that each accused made confession of their guilt separately but he did not mention this detail in the F. I. R Suffice it to say, that it was a joint confession which would not be admissible. 10. The next corroborative evidence of the approvers' statements in this case was the recoveries from each accused. It may be mentioned at the outset that the dead body or any part of it was not recovered in this case. Prosecution has relied on the recoveries of articles of the deceased"' Mumtaz was said to have removed his pistol P. 21, golden ring P. 1 and currency notes of the value of Rs. 9,000 Exn. P. 22/190. These were got recovered by him from a heap of wood lying in his house on 27-11-1978. This recovery was attested by P. W. 16 Mutalli and another witness Yara (given up as having been won over). The same day, he got recovered television set P. 7 from the house of P. W. 7 Muhammad Fazil to whom he was said to have sold it for Rs. 3,000 through receipt Exh. P. D. P. W. 16 Mutalli is a witness of both the recoveries from Mumtaz. This witness claimed to have gone to the police station on his own to find out about his relation Ahmad who had been hauled up in a theft case. According to him, before he could make any enquiry about his relation, the investigating officer asked him to join the recovery proceedings in this case. He admitted that the investigating officer did not ask any one from the neighbouring houses of Mumtaz to join the recovery proceedings. This witness when questioned about his relationship with the deceased, he showed his ignorance about it. Admittedly he is not a witness of the locality and appears to be concealing his relationship with the deceased. The recovered articles from Mumtaz were not put for identification before two approvers. Strangely enough, P. W. 7 Muhammad Fazil who claimed to have purchased the television set from Mumtaz admitted that he was a shofar of the deceased and was on visiting terms with him. But it was further strange that being so close connected with the deceased, did suspicion did not arise in his mind when he purchased the television set from Mumtaz. The manner in which he struck the bargain for purchasing the television set from Mumtaz was also not free from doubt. As according to him, he per chance met Mumtaz in the bazar who enquired from him the purpose of his visit to the bazar. The witness told him that he had come to buy a television set and Mumtaz made the offer to sell his television set to him. The witness for the first time went to the house of Mumtaz with Nazir and Ashraf and purchased the set. He admitted that he did not enquire from the market the price of the set. According to him it cost about Rs. 4,000. It is noteworthy that he did not enquire from Mumtaz as to from where he bad purchased the set. He explained that he did not enquire about it because he had confidence in him. He neither asked for the T. V. Licence from him nor he applied for one. Nazir the scribe of receipt Exh. P. D. And its attesting witness Ashraf were given up to the prosecution as having been won over. On the other
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hand, explaining the execution of receipt Exh. P. D., Mumtaz said that police obtained his thumb- impression on a blank piece of paper and fabricated it. He claimed to have studied up to the intermediate and always signed and never affixed his thumb impression. I am inclined to accept his statement because the thumb impression on the receipt is with pad ink whereas the rest of the document is written with pen ink. This leads me to the conclusion that the receipt was a highly suspicious document which reflected adversely on the investigation in this case. It may also be mentioned here that Mukhtar and Muhammad…
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