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Petitioner: ABDUL GHAFOOR alias PUPPO VS Respondent: THE STATE
1988 M L D 506
1988 M L D 506
[Lahore]
Before Rustam S. Sidhwa and Muhammad Arif, J
ABDUL GHAFOOR alias PUPPO and 2 others‑‑Appellants
versus
THE STATE‑‑Respondent
Criminal Appeal No. 16 of 1988/BWP, decided on 5th April, 1988.
(a) Special Courts for Speedy Trials Act (XV of 1987)‑
‑‑‑S. 2, Cl. (c)‑‑Four persons were knifed with dagger of which one died‑‑All the accused allegedly used daggers against their victims and gave stab wounds on the vital parts of their bodies which were found dangerous to life‑‑Ex facie a "gruesome, brutal and sensational" murder, in terms of Cl. (c) of S. 2 of the Act, held, was committed, in circumstances.
(b) Special Courts for Speedy Trials Ordinance (XX of 1987)‑
‑‑‑S. 2 (4)‑‑[as re‑enacted by Special Courts for Speedy Trials Act (XV of 1987), S. 15 (3)]‑‑Word "appointment" used in S. 15 (3) of the Act, application of‑ Contention that since the Presiding Officer of the Speedy Trial Court, was not possessing the necessary qualifications for the appointment of Special Judge as notified under the Act, he was not eligible to be appointed as Special Judge or to act as such was misconceived and thus repelled‑‑Appointment of Special Judge made under the repealed Ordinance, held, was protected by the new Act, as envisaged by S. 15 (3) and shall be deemed to have been made under the new Act.
(c) Penal Code (XLV of 1860)‑‑ ‑‑‑S. 302‑‑Alibi, witness of‑‑Witness making statement for the first time in the Court supporting plea of alibi raised by accused would not be confidence inspiring and thus would be disbelieved.‑‑[Alibi].
(d) Penal Code (XLV of 1860)‑‑ ‑‑‑S. 307/34‑‑Evidence, appreciation of‑‑Accused earlier declaring to deal with their victim, coming armed with daggers to his house and making an attempt on his life, by giving serious stab wound on his chest, found dangerous to life‑ Conviction under S. 307/34, P.P.C. maintained, in circumstances.
(e) Penal Code (XLV of 1860)‑‑ ‑‑‑Ss. 302 & 304, Part I‑‑Offence, alteration of‑‑Possibility that some quarrel, grappling or exchange of filthy language and also use of physical force against accused by the inmates of the house, preceding the main occurrence, not ruled out‑‑Conviction and sentence under S. 302, P.P.C., altered to that under S. 304, Part 1, P.P.C. in circumstances.
(f) Penal Code (XLV of 1860)‑‑ ‑‑‑S. 302‑‑Witness‑‑Evidence, corroboration of‑‑Witnesses disinterested‑‑No corroboration of their statements strictly required‑‑[Witness].
Malik Muhammad Din for Appellants.
S.M. Razvi, AA.‑G. for the State.
MA. Chughtai for Complainant.
Dates of hearing: 28th and 29th March, 1988.
JUDGMENT
RUSTAM S. SIDHWA, J.‑‑Abdul Ghafoor alias Puppo, Abdul Rahim and Muhammad Ayub, sons of Abdul Malik, were tried by Mr. M. Muhammad Sultan Alam, Judge, Punjab Special Court for Speedy Trials, Bahawalpur, under section 302/307/34, P.P.C. for the murder of Khurshid Ahmad, deceased, and attempt on the lives of Riaz Ahmad and Shabir Ahmad P.Ws. The learned Judge by his judgment dated 17‑2‑1988, convicted Abdul Ghafoor alias Puppo, accused, under section 302, P.P.C. for the murder of Khurshid Ahmad, deceased, Abdul Ghafoor alias Puppo, Abdul Rahim and Muhammad Ayub, accused, under section 307/34, P.P.C. for attempt to murder Riaz Ahmad P.W., Muhammad Ayub, accused, under section 307, P.P.C. for attempt to murder Shabir Ahmad P.W. and Abdul Ghafoor alias Puppo, accused, under section 324, P.P.C. for causing grievous injury to Muhammad Ali P.W. Abdul Ghafoor alias Puppo, accused, was sentenced under section 302, P.P.C. to death and to pay a fine of Rs.15,000 or in default thereof to undergo rigorous imprisonment for three years. Half of the fine, if recovered, was ordered to be paid to the heirs of Khushid Ahmad, deceased, as compensation. Abdul Ghafoor alias Puppo, Abdul Rahim and Muhammad Ayub, accused, were sentenced under section 307/34, P.P.C. to ten years' rigorous imprisonment each with a fine of Rs.7,000 each or in default thereof to undergo further rigorous imprisonment for two years each. Half of the fine, if recovered, was ordered to be paid to Raiz Ahmad P.W. as compensation. Muhammad Ayub, accused, was sentenced under section 307, P.P.C. to ten years rigorous imprisonment with a fine of Rs.7,000 or in default thereof to undergo further rigorous imprisonment for three years. Half of the fine. if recovered, was ordered to be paid to Shabbir Ahmad P.W. as compensation. Abdul Ghafoor alias Puppo accused, was sentenced under section 324, P.P.C. to three years' rigorous imprisonment with a fine of Rs.3,000 or in default thereof to undergo rigorous imprisonment for one year. Half of the fine, if recovered, was ordered to be paid to Muhammad Ali P.W. All the above sentences were ordered to run concurrently. The benefit of the provisions of Section 382‑B, Cr.P.C. was allowed to the three accused. The joint appeal (Cr. A. 16 of 1988) preferred by Ahdul Ghafoor alias Puppo, Abdul Rahim and Muhammad Ayub, convicts, is now before us for disposal.
2. The brief facts of the case are that Abdul Ghafoor alias Puppo, Abdul Rahim and Muhammad Ayub, accused, were real brothers and were maternal cousins of Riaz Ahmad complainant P.W. 6, whose sister Mst. Mukhtar Begum was engaged to the said Abdul Ghafoor, accused. On 16‑9‑1986, at noon tune, Abdul Ghafoor, accused, came to the house of Riaz Ahmad P.W. 6 for taking his mother and sisters to his house. Riaz Ahmad P.W. 6 objected that only the mother should go and not the sisters, as they were unmarried. Abdul Ghafoor, accused, took it ill and left the house after hurling threats. After a short while, Riaz Ahmad P.W. 6 came out of his house and found Abdul Rahim, accused, standing outside. He told him not to come to his house, whereupon Abdul Rahim, accused, replied that no one could stop him and if anybody did, he would be shot dead. Riaz Ahmad P.W. 6 went to the factory and told the above incident to his elder brother Khurshid Ahmad, deceased, who said that there was a question of relationship and so the matter should be settled peacefully. Shortly afterwards, Riaz Ahmad P.W. 6 returned to his house for taking his clothes, but was pursued by the three accused, but he managed to enter his house unharmed and told the incident to his father. The three accused also reached there and started quarrelling with him, on which the parents of Riaz Ahmad P.W. 6 intervened and got the matter settled. Riaz Ahmad P.W. 9 again went to the factory and told his brother Khurshid Ahmad, deceased, about the above quarrel. In the meantime, Fayyaz, the younger brother of Riaz P.W. 6, reached the factory and told that the three accused were quarrelling with his father Abdul Majeed (given up P.W.). Leaving Fayyaz in the factory, Riaz Ahmad P.W. 6 and Khurshid Ahmad, deceased, came to their house in Mohallah Nazam Sahab, with their employee Shabir Ahmad P.W. 8. Maghrab time had fallen by then and the electric lights were on. Khurshid, deceased, asked Abdul Rahim, accused, the cause of quarrel, whereupon Abdul Ghafoor and Muhammad Ayub, accused, came out of room, raising Lalkara that he would be finished that day. Abdul Rahim, accused, took out a dagger and stabbed Riaz Ahmad P.W. 6 in the back. Khurshid Ahmad, deceased, tried to rescue Riaz Ahmad P.W. 6, but he was stabbed in his abdomen by Abdul Ghafoor, accused, and he fell to the ground. Shabir Ahmad P.W. 8, the servant of Khurshid Ahmad, deceased, tried to intervene, but Ayub, accused, stabbed him too and he also fell down. On their hue and cry, Muhammad Ali P.W. 11, their neighbour, reached the spot and tried to separate them, but Abdul Ghafoor, accused, gave a dagger blow to him, injuring his hand. The parents of Riaz Ahmad P.W. 6 tried to intervene, but the accused threatened them with death. The accused decamped alongwith their respective weapons. Riaz Ahmad P.W. 6 and Muhammad Ali P.W. 11 started for the Police Station, but Riaz Ahmad P.W. fell in the way and then Muhammad Ali P.W. 11 carried him to Civil Hospital Khanpur in a wagon. Khurshid Ahmad, and Shabir Ahmad P.W. 8 were also brought to the hospital in the meantime, but in view of their precarious condition, the doctor despatched them to Rahimyar Khan hospital.
3. On receipt of a telephonic message, Imam Bakhsh SI P.W. 12 reached the Civil Hospital Khanpur and recorded statement Exh. PB of Riaz Ahmad P.W. 6 at 7‑45 p.m. On the basis of the said statement, formal FIR Exh. PB/1 was recorded by Muhammad Safdar A.S.I. P.W. 4 at Police Station City Khanpur at 8 00 P.M.
4. Imam Bakhsh S.I. P.W. 12 then proceeded to the spot and took into possession a cycle of the accused Exh. P 1 and the sheath P. 2 of a dagger longing to the accused vide memos Exhs. P.1 and P. 2 respectively.
5. On 16‑9‑1986 at 7‑25 p.m., Dr. Ahmad Nawaz Khan Bhatti P.W. 7 examined Riaz Ahmad P.W. 6 and found a stab wound 2 cm x 1/2 cm x chest cavity deep with blood and air coming out of the wound on the coughing of the said patient. There was positive crepitation sound around the wound. The sharp edged injury was declared to be dangerous to life and to have been inflicted within five to twenty‑five minutes of the examination. At 7‑35 p.m. Dr. Ahmad Nawaz Khan Bhatti P.W. 7 examined Muhammad Ali P.W. 11 and found a sharp cut 2 cm x 1/2 cm x skin deep on the left middle finger and a superficial abrasion 2 cm x 1 cm on the right knee joint on skin, both of which simple injuries were found to have been inflicted within fifteen to thirty minutes. The first injury was declared to be by sharp‑edged weapon, whereas the second by blunt weapon. At 7‑30 p.m., the same doctor examined Shabbir Ahmad P.W. 8 and found a stab wound 4 cm circular in the middle and centre of the abdomen above umbilicus. The wound was deep and almost the whole of the small intestines were protruding out. The intestines were punctured and injured and food was coming out from it. The patient was in shock, severe pain and semi‑unconscious. The sharp‑edged injury, which was declared to be dangerous to life, was held to have been inflicted within a duration of about thirty to sixty minutes. At 8‑25 p.m., the same doctor examined Khurshid Ahmad and found a stab wound 3 cm circular x abdominal cavity deep in the centre of the abdomen. A small portion of the mysentry was protruding out. The patient was in great pain and agony. The sharp edged weapon injury, which was found to be dangerous to life, was held to have been inflicted within thirty to sixty minutes.
6. On 17‑9‑1985, Khurshid Ahmad, deceased, died in Rahimyar Khan hospital. Imam Bakhsh S.I. P.W. 12, after preparing the necessary papers, sent the dead body for post‑mortem examination.
7. On 18‑8‑1986, Dr. Ahmad Nawaz Khan Bhatti P.W. 7 performed the post‑mortem examination on the dead body of Khurshid Ahmad, deceased, and found the same injury on the body, as had been found earlier. The death was found to be due to severe haemorrhage and pain leading to shock and death. Probable duration between injury and death was within twenty‑four to thirty hours and between death and post‑mortem examination within twelve' hours. On 18‑9‑1986, the blood‑stained clothes of Khurshid Ahmad, deceased, Shabir Ahmad P.W. 8 and Riaz Ahmad P.W. 6 were taken into custody by Imam Bakhsh S.I. P.W. 12.
8. On 21‑9‑1986, Imam Bakhsh S.I. P.W. 12 recorded the statement of Shabir Ahmad P.W. 8.
9. On 28‑9‑1986, all the three accused were arrested.
10. On 30‑9‑1986, Abdul Ghafoor alias Puppo, Muhammad Ayub and Abdul Rahim, accused led to the recoveries of blood‑stained daggers P. 9, P. 10 and P. 11 respectively from their homes. which were taken into possession by the police vide memos PM, PN and PO. The said recoveries were witnessed by Irshad Ahmad P.W. 10, Imam Bakhsh S.I., P.W. 12 and Abdul Majid (given up P.W.). All the three weapons were found to be stained with human blood.
11. After completing the necessary investigation, the challan against the accused was first sent up for trial before the ordinary criminal Court. Thereafter, by Notification, issued under section 5 (2) of the Special Courts for Speedy Trials Act, 1987, the case was sent to the Punjab Special Court for Speedy Trials, Bahawalpur, for trial.
12. At the trial, the prosecution produced Riaz Ahmad P.W. 6 to prove the motive, the said witness and Shabir Ahmad P.W: 8 and Muhammad Ali P.W. 11 in proof of the ocular account, Irshad Ahmad P.W. 10 and Imam Bakhsh P.W. 12 in support of the recoveries and Dr. Ahmad Nawaz Khan Bhatti PW 7 in corroboration of the medical testimony.
13. All the accused denied all the accusations that were levelled against them, including the recoveries alleged to have been effected at their instance. Abdul Ghafoor alias Puppo, accused, admitted the occurrence, though in different circumstances. His version of the case, as given by him in his statement under section 342, Cr.P.C., may be reproduced here with advantage:
"Riaz Ahmad P.W. is a bad character. Muhammad Ali P.W. is his friend and his companion to all misdeeds. Riaz Ahmad used to quarrel with his parents and Khurshid Ahmad, deceased, used to side with the parents and admonish Riaz Ahmad. Riaz Ahmad wanted that his sister Mst. Mukhtar Bibi be married with Muhammad Ali P.W., but Khurshid Ahmad and other members of family engaged her with me. On the day of occurrence it was 10th of Muharram. Khurshid deceased, Mukhtar Bibi, his other sisters went to see Tazia alongwith me. Some half an hour before Maghrib, when we were coming back after seeing Tazia and had reached near Civil Hospital, Riaz, Shabir and Muhammad Ali came there. Riaz started quarrelling with Khurshid Ahmad saying that why the sisters had been brought to see Tazia with me. They started abusing each other. Riaz took out a dagger from his pocket and inflicted a blow with it in the abdomen of Khurshid. Muhammad Ali took out dagger and tried to injure me, but I snatched the same from him and in the exercise of right of my private defence and that of Khurshid Ahmad, injured Riaz Ahmad and Shabir P.Ws. with that dagger. Muhammad Ali was injured during the snatching of dagger."
Abdul Rahim and Muhammad Ayub accused, denied their participation and alleged that they were in Bahawalpur with their maternal‑uncle Karim Bakhsh. They also produced Ghulam Dastgir D.W. 1 and Karim Bakhsh D.W. 2 in their defence.
14. The learned trial Judge, relying upon the motive, the ocular account, the recoveries and the medical testimony, convicted and sentenced the three accused, as stated in para I above.
15. We have heard the arguments on behalf of ' the appellants, the complainant and State and have perused the record.
16. On behalf of the appellants two legal submissions have been made, which we would like to dispose of first. It is submitted that the offence which has been sent up to the Special Court for trial is not one as defined in clause (c) of section 2 of the Special Courts for Speedy Trials Act, XV of 1987. In this connection it is submitted that the offence was neither gruesome, brutal and sensational in character, or shocking to public morality, or had led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or any section thereof and that since the is no finding in that respect, the learned Special Judge had no jurisdiction to try the case. Second that Mr. M. Muhammad Sultan Alam, Special Judge, who tried the case, did not have the special qualification required as notified m subsection (2) of section 4 of the said Act. In this respect, it submitted that a person to be a Special Judge must be one who is or has been a Judge of a High Court, or is a Sessions Judge who is qualified for appointment as a Judge of a High Court and since he is neither, he had no jurisdiction to be appointed as a Special Judge or to act as such.
17. Section 2 (c) of the Special Courts for Speedy Trials Act, 1987, defines the word `offence'. It means an offence specified in the Schedule which, in the opinion of the Government is gruesome, brutal and sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof. In the instant case four persons were knifed with daggers, of which one died. Riaz Ahmad P.W. 6 received a stab wound in the chest, which was found to be dangerous to life. Shabir Ahmad P.W. 8 received a stab wound in the middle of the abdomen as a result of which the whole of the small intestines, which were cut, protruded out, which injury was also found to be dangerous to life. Khurshid Ahmad, deceased, also received a stab wound in the middle of the abdomen, which was found to be dangerous to life and as a result of which he died. Muhammad Ali P.W. 11 also received a minor sharp‑edged weapon injury on his fingers, apart from an abrasion on his right knee. All three appellants allegedly used daggers. Ex‑facie this is a gruesome, brutal and sensational murder. It is a case of res ipso loquitur. We do not think anything further was required in the opinion of anybody to place this case in the category of a gruesome, brutal and sensational murder. Nothing, therefore, turns on the objection of the learned counsel for the appellants, which is rejected.
18. As regards the second objection, it is true that under subsection (2) of section 4 of the earlier Special Courts for Speedy Trials Ordinance XX of 1987, a person who was or had been or was qualified for appointment as a Judge of High, Court could be appointed as a Special Judge, but that with the passing of the Special Courts for Speedy Trials Act, 1987, only that person who is or has been a Judge of High Court or is a Sessions Judge who is qualified for appointment as a Judge of a High Court can be appointed, in consultation with the Chief Justice of the High Court, but the earlier appointments made under the old Ordinance have been protected by the Act. Subsection (3) of section 15 of the present Act provides that notwithstanding the repeal of the earlier Ordinance, any, appointment, notification, order, rule made or issued under the earlier Ordinance shall be deemed to have been made or issued under this Act. The word "appointment" used here is in relation to an appointment to office and means the designation of a person, by a person or persons having authority to appoint, under or by virtue of the power given to him or them to designate under the terms and conditions laid down with regard to the character or qualification of the person to be so designated, to discharge the duties of an office or trust. In this view of the matter, the earlier appointment of Mr. Muhammad Sultan Alam as Special Judge shall be deemed to have been made under the present Act and, as a necessary corollary, be deemed to be on the basis of the necessary qualifications as required under the said Act. This objection of the learned counsel for the appellants is, therefore, rejected.
The evidence of motive is furnished by Riaz Ahmad P.W. 6. According to his testimony, all the three appellants came to his house on the date of occurrence at about 1‑00 p.m. and asked his mother that she and her daughters should go to their house. He advised his mother that she could go alone, but that the sisters should not go, as they were unmarried. Abdul Ghafoor, appellant, took it ill and observed that he was nobody to stop them and that he would murder him. The appellants left the house. Riaz Ahmad P.W. 6 then proceeded to his factory. Outside his house he met Abdul Rahim, appellant, to whom he told not to visit his house, on which Abdul Rahim, appellant, replied that if they were stopped, they would fire at him. Riaz Ahmad P.W. 6, when he reached the factory, told this whole matter to his brother Khurshid Ahmad, deceased, who replied that as this was a matter of relationship, he would settle the matter himself. At about 4‑00 p.m., Riaz Ahmad P.W. 6 returned to his house for picking up his clothes, when on the way, the three appellants pursued him, but he managed to enter his house unharmed. He told this fact to his mother Mst. Irshad Bibi. In the meantime the three appellants also reached his house and started quarrelling, but his father pacified the parties. Riaz Ahmad P.W. 6 then left for the factory, where he told as to what had transpired to his brother Khurshid Ahmad, deceased, when just at that time his younger brother Fayyaz Ahmad came and told them that the appellants were at their home fighting and that they should go there. Hearing this, Riaz Ahmad P.W. 6, Khurshid Ahmad, deceased, and Shabir Ahmad P.W. 8 went to their house, where the incident occurred. In cross‑examination Riaz Ahmad P.W. 6 admitted that in the F.I.R. Exh. PB it was not mentioned that Abdul Rahim and Muhammad Ayub, appellants, had also come alongwith Abdul Ghafoor, appellant, on the first occasion, or that the said Abdul Ghafoor, appellant, had threatened to kill him on that occasion. Despite this slight variation, nothing has come on the record to suggest that the motive as set up by Riaz Ahmad P.W. 6 is untrue or cannot be accepted with any degree of safety. We have, therefore, no hesitation in holding that the motive in this case stands established.
The ocular account in this case is furnished by Riaz Ahmad P.W. 6, Shabir Ahmad P.W. 8 and Muhammad Ali P.W. 11. Riaz Ahmad P.W. 6 is the real brother of the deceased, Shabir Ahmad P.W. 8 happens to be the servant, who was working in the factory of Khurshid Ahmad, deceased, and Muhammad Ali P.W. 11 appears to be the neighbour of the complainant party. All three are injured, Their account of the occurrence already stands reproduced in para 2 above and need not be repeated. The occurrence is admitted by Abdul Ghafoor, appellant, though in different circumstances. His version of the occurrence already stands reproduced in para 13 above and need not be repeated. The only question that arises is, whether, after placing in juxtaposition the case of the prosecution and that of the defence, the evidence on the record and the surrounding circumstances prove the case of the prosecution or lead to the reasonable inference that the defence story is true or reasonably probable.
19. We will first take up the defence of Abdul Ghafoor, appellant, and the alibi of the other two appellants. According to Ghulam Dastgir D.W. 1, when he reached near the Civil Hospital, Khanpur, he saw the people gathered on the road‑side, where Khurshid Ahmad, deceased, Riaz Ahmad P.W. 6, Shabir Ahmad P.W. 8 and Muhammad Ali P.W. 11 were present in injured condition and he came to know from people there that a young man of Twenty/twenty‑five years had run away after injuring Riaz Ahmad P.W. 6 and Shabir Ahmad P.W. 8. His statement as regards the actual occurrence is inadmissible. He did not state that he had seen the actual occurrence. He admitted that he appeared only once in defence of the appellants at the Police Station after five/six days of the occurrence, but never thereafter. Had the occurrence taken place near Civil Hospital, as stated, many witnesses would have appeared before the police officer to affirm the said fact. This was not so. Even otherwise it does not appeal to reason that Riaz Ahmad P.W. 6 began injuring his brother Khurshid Ahmad, deceased, with a dagger, instead of Abdul Ghafoor, appellant, against whom he had a grouse. The defence version of Abdul Ghafoor, appellant, cannot, therefore, be accepted. The evidence of Karim Bakhsh D.W. 2 as regards the alibi of Abdul Rahim and Muhammad Ayub, appellants, does not inspire confidence. He admitted that he did not complain either to the Superintendent of Police, or the Deputy Superintendent of Police, or to any other authority that Abdul Rahim and Muhammad Ayub, appellants, had been falsely involved. He admitted that he did not inform any respectables of the area, or move an application in favour of Abdul Rahim and Muhammad Ayub, appellants, before any authority in this regard. He stated he was making the statement for the first time before the Special Judge. The plea of alibi of Abdul Rahim and Muhammad Ayub, appellants, does not stand made out and must be rejected.
20. We are now left with the ocular account furnished by Aziz Ahmad P.W. 6, Shabir Ahmad P.W. 8 and Muhammad Ali P.W. 11. As stated earlier, all three are injured. Their participation therefore, cannot be disputed. Shabir Ahmad P.W. 8 and Muhammad Ali P.W. 11 admittedly have no enmity with any of the appellants. On behalf of the appellants, the following submission have been made as regards the ocular account. First, though the prosecution case is that the occurrence took place at Maghrab Waila but it appears that the incident took place much later. In this connection it is submitted that Muhammad Ali P.W. 11 in his evidence stated that when the incident occurred, the sun had already set, which means that the incident took place after sunset. Second, that the place of…
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