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Petitioner: MUHAMMAD AFZAL AND ANOTHER VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Abaid Ullah Khan Title: MUHAMMAD AFZAL AND ANOTHER vs THE STATE Case No.: Criminal Appeal No, 40 and Murder Reference No, 51 of 1979 Date of Judgment:1980-03-01 Reported As: PLD 1980 Lahore 518 Result: Petition accepted
JUDGMENT
JUDGMENT ' ABAIDULLAH KHAN, J.-By his judgment dated the 4th of January 1979, the learned Additional Sessions Judge, Sargodha, convicted Muhammad Afzal, son of Sultan Ali, Deve by caste, aged 28 years, and his servant, Hamid, son of Inayat, Kashmiri by caste, aged 19 years, residents of Chak No, 37/SB, Tehsil and District Sargodha, under section 302/34 of the Pakistan Penal Code for committing murder of Tasneem Akhtar, son of Bashir Ahmad (P. W. 8), aged 23/24 years, and under section 307/34 of the Pakistan Penal Code for committing murderous assault upon Hamid Ahmad (P. W. 9) who is not related to the deceased. Muhammad Afzal was sentenced to death and a fine of Rs, 5,000 or in default of payment thereof to rigorous imprisonment for a year and Hamid was sentenced to imprisonment for life and a fine of Rs, 1,000 or on failure to pay the same to six month's rigorous imprisonment on the first count of their conviction. The aforesaid amount of fine, if realized, was directed to be paid to the father of the deceased as compensation. In respect of conviction under section 307/34 of the Pakistan Penal Code, Muhammad Afzal was sentenced to three year's rigorous imprisonment and a fine of Rs, 1,000 or in default of payment thereof to six month's rigorous imprisonment and Hamid was sentenced to three year's rigorous imprisonment and a fine of Rs, 500 or in default of payment of the same to three months' rigorous imprisonment. The sentences were directed to run concurrently. The convicts have come up in appeal to this Court. 2. Muhammad Ashraf, aged 50 years, brother of Muhammad Afzal, appellant, who was tried along with the appellants on the same charge, was, however, acquitted by the learned trial Judge. 3. Bashir Ahmad, complainant, has filed Revision Petition (No, 244 of 1979) for enhancement of fine imposed upon Muhammad Afzal appellant, and of the sentence of imprisonment for life awarded
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to Hamid appellant to death as well as against the acquittal of Muhammad Ashraf. Murder Reference (No, 51 of 1979) for confirmation of death sentence of Muhammad Afzal, appellant, is also before us. This judgment will dispose of the convicts' appeal, murder reference and the complainant's revision petition. 4. The motive behind the commission of murder of the deceased and murderous assault upon Hamid Ahmad was that six years before the present occurrence Tasneem Akhtar deceased had murdered Muhammad Aslam, brother of Muhammad Afzal appellant and Muhammad Ashraf acquitted accused. The complainant party in that case got a house and eight and a half acres of land as blood money and compromised the dispute. However, due to the grudge that they bore on account of murder of Muhammad Aslam, the appellants and their acquitted co-accused allegedly murdered Tasneem Akhtar and injured Hamid Ahmad. 5. The occurrence, as set out in the first information report Exh. P E which was lodged at 1-00 p.m., by Bashir Ahmad (P. W. 8), father of the deceased, on the 14th of March 1977, at Police Station Bhagtanwala, which is 11 miles away from the spat, and was recorded by Atta Ullah Khan, Sub- Inspector of Police and Station House Officer, P. W. 10, took place in the following manner. On the 14th of March 1977, at 11-00 a.m., Bashir Ahmad (P. W. 8), along with his son, Tahir Ahmad (P. W. 12), and one Manzoor, was at his dera situate in the area of Chak No, 37/SB and his deceased son, Tasneem Akhtar, was preparing grafts of lemon, when all of a sudden the appellants and Muhammad Ashraf acquitted co-accused armed with '12 bore guns came close to the deceased. Muhammad Ashraf raised a lalkara that he would not escape alive and fired at the deceased who started running. The appellants and Muhammad Ashraf began chasing him and kept on firing. Bashir Ahmad (P. W. 8), Tahir Ahmad (P. W. 12) and Manzoor ran after the assailants and implored them to desist. While running the deceased passed by the dera of Nazir Ahmad Langrial and turned towards the dera of Bashir Ahmad Langrial. Hamid Ahmad (P. W. 9) and Fazal Ahmad, who were present on the way near the dera, saw the deceased being chased and fired at by the assailants. At last the assailants practically overtook the deceased near the dera of Bashir Ahmad Langrial. Shot fired by Muhammad Ashraf hit the deceased in the "Mk and he fell down. Muhammad Ashraf placed his gun on the left temple of the deceased and fired a shot which of course injured him badly. The shot fired by Muhammad Afzal hit the deceased on the left elbow. Hamid fired a shot at the deceased and it hit him on the right wrist. Thereafter the three assailants fired many shots though no details are given. The deceased expired at the spot. The assailants then challenged the complainant, Tahir Ahmad and Hamid Ahmad. In a bid to save their lives Tahir Ahmad and Hamid Ahmad ran towards the village. The appellants pursued them and near the sugarcane field of Raja Hanif they fired upon them. Tahir Ahmad escaped unhurt but Hamid Ahmad was injured. Afzal, Aslam and other inhabitants of the village, who had come out of their houses, saw the occurrence. Seeing the people the assailants made good their escape. Hamid - Ahmad was removed to the District Headquarters Hospital, Sargodha. Bashir Ahmad went to Police Station, Bhagtanwala where he reported the matter two hours after the occurrence. 6. Atta Ullah Khan (P. W. 10) went to the spot, prepared injury statement of the deceased, Exh. P. F. Inquest report in respect of his death Exh. P. G. And despatched the dead body to mortuary for post-mortem examination. He collected from the place of occurrence blood-stained earth, made it into a sealed parcel and took in his possession vide memorandum, Exh. P. H. He picked up four pellets from the spot and took them in his possession after having covered them into a sealed packet vide memorandum, Exh. P. P. J. He also picked' up two crime empty cartridges, Exh. P. 9/1-2, from the place of occurrence, covered them into a sealed parcel and took them in his possession vide memorandum, Exh. P. K. Exhs. P. H., P. J. And P. K. Were attested by, besides Atta Ullah Khan (P. W. 10), Tahir Ahmad (P. W. 12) and Eazal Ahmad.
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7. Atta Ullah Khan (P. W. 10) arrested the appellants and the acquitted co-accused on the 21st of March 1977. The investigation of the Case was transferred tq Hamid Nawaz, Inspector of Police, P. W. 13, on the 24th of March 1977. While in police custody Muhammad Alm] appellant led to the recovery of 12 bore gun, Exh. P. 7, from inside his house on the 29th of March 1977. Haruki Nawaz (P. W. 13) made the gun Exh. P. 7, into a sealed parcel and took it in his possession vide memorandum, Exh. p.m. Whose attesting witnesses were Muhammad Siddique (P. W. 11) and Khan Muhammad. The same day Hamid appellant got recovered 12-bore gun, Exh. P. 8, from underneath the heap of cotton sticks lying in the courtyard of his house. Like the other gun it was also covered into a sealed packet and taken possession of by Hamid Nawaz (P. W. 13) ride memorandum, Exh. P.M. Which was attested by the same recovery witnesses. 8. There is nothing on the record as to what recovery was made from or at the instance of Muhammad Ashraf, the acquitted accused. As a matter of fact the Police on investigation found him to be innocent. 9. According to the report of the Government Examiner of Fire-arms, Exh. P. Q. (at page. 11 of the paper book), one of the crime empty cartridges picked up from the spot by Atta Ullah Khan (P. W. 10) was found to have been fired from the gun, Exh. P. 7, recovered at the instance of Muhammad Afzal appellant. 10. Earth collected from the spot was found by the Serologist, vide his report, Exh. P. 0. (at page 10 of the paper book), to be stained with human blood. 11. Doctor Inamul Haque, Medical Officer, District Headquarters Hospital, Sargodha, P. W. 7, performed autopsy on the dead body of Tasneem Akhtar deceased on the 15th of March 1977, at 8- 30 a.m., and found the following injuries thereon :- "(1) A gunshot wound of entrance 2" x 3/4" on the left jaw in front of left ear. Upper jaw, lower jaw and all the teeth were broken, lower jaw was broken on both the sides. Tongue was injured. Bone below the nose was also broken. ' There was charring and blackening in the ear and around the wound in the area of 3-1/2 x 3'. The card and some pieces of pellets were removed from this wound. (2) At the left angle of the mouth there was a wound of exit 1' x 1/2' of No, I and a small gun-shot fire-arm wound of exit on the left lower lip at the chin 1/4' x 1/2". (3) Wounds of exit of No, I on the right cheek at the right angle of the mouth 2-1/4" X 1/2', on the right cheek 3/4' x 1/2', on the outer side 1/4' x 1/2", at the lower lip on the chin 1/4" x 12". At the lower lip on the chin 1/4" x 1/2". (4) Wound of exit at the middle of the left upper arm, elbow-joint, and middle of left forearm 6-1/2" a 3k'. All the muscles, bone of the upper arm (Numerous) and ulna bone of the forearm (radious) were fractured. (5) Wound of entrance at the inner side of the left elbow-joint 4-1/2 a 2' of gun-shot fire-arm wound and gatta was removed from this wound. This was a wound of entrance of No, 4 (wound of exit). (6) Gunshot wound of entrance on the left side of back of chest below the shoulder blade 1-1/4' x 3/4' deep to the thorax cavity. (7) A gunshot wound on the inner side of the left arm just near the armpit at the front border 1/2' ar 1/4' deep to the chest cavity. (8) A gunshot wound on the left side of the chest 3-1/2 lateral side of the nipple towards the armpit x 1/2" deep to the muscle. (9) A wound of exit on the right shoulder below the clavical on the front side 1/2" x 1,2", this can be wound of exit No, I. . (10) A contused mark at the right upper arm 3" x 2'.
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(11) A gunshot fire-arm wound of entrance 21' x 1 r on the outer side of the middle of the right forearm. (12) A guhshot fire-arm wound on the inner side of the right forearm w x 2*. (13) two circular scars of wounds 1/2' X 1/2' at a distance of one inch from each other on the left side of the abdomen. A piece of pellet was removed from the 2 inches medial side of the abdomen." ' All the visceras of the scalp, skull, vertebra, membrane, brain and spinal cord were healthy. The pleura was injured. All the visceras of abdomen were healthy. Mouth and tongue were injured. There was semi-digested food material present in the stomach. Small intestines were empty and healthy. Large intestines contained some faecal matter, Urinal bladder was empty. All the injuries were ante-mortem. In the opinion of the Medical Officer death had occurred due to shock and haemorrhage as a result of multiple injuries caused by gunshot. Each of the injuries Nos, 1 and 6 was sufficient to cause death in the ordinary course of nature. Probable time between causing of injuries and death was assessed by the Medical Officer to be immediate or within half an hour and between death and post-mortem examination within 24 hours. Exh. P. D. Is the copy of the post- mortem examination report and Exhs. PD/1 and PD/2 are diagrammatic sketches indicating location of injuries. 12. Doctor Muhammad Firdos. Medical Officer, District Headquarters Hospital, Sargodha, P. W. 5, examined Hamid Ahmad (P. W. 9) on the 14th of March 1977, at 3-00 p.m., and found the following injuries on his person :- AI) A contused circular wound of entrance 3/8' x 3/8' going deep on the back of right buttock. Mark was present on dhoti and was signed. (2) A contused circular lacerated wound of entrance 1/2' x 1/8' x muscle deep on the back of right leg in its middle 1/3rd. (3) A circular wound of exit 1/2' x 1/4' muscle deep x on the outer side of back of right leg with margins of laceration." All the injuries were caused within 4 to 5 hours as a result of fire-arm shots. Exh. P. B. Is the copy of the medical examination report. 13. The appellants and their acquitted co-accused denied their participation in the commission of alleged crime. The appellants disowned recoveries of guns, Exhs. P. 7 and P. 8, at their instance. Muhammad Afzal said that the recovery of gun, Exh. P. 7, had been planted on him and that the crime empty was fabricated by the police from the gun supplied by the complainant party. Muhammad Afzal and Muhammad Ashraf said that they had been falsely implicated due to enmity. Hamid appellant's defence was that he had been falsely involved due to party faction in the village. Muhammad Ashraf, the acquitted accused, examined in defence Iftikhar Ahmad, Head Constable, Police Station, Bhagtanwala, who produced the register of the Police Station for the year 1945 and a copy of First Information Report No, 46, dated the 6th of June 1945, Exh. DD, indicating registration of case at the instance of one Mirza Khan, but the case on investigation turned out to be false. Evidence adduced in defence by Muhammad Ashraf is of little use to the appellants. 14. The learned trial Judge believed the ocular evidence produced by the prosecution against the appellants and found corroboration as against Muhammad Ashraf appellant in the matching of the crime empty cartridge found at the spot with the gun, Exh. P. 7, recovered at his instance. He formed the view that Muhammad Afzal must have a grudge against the deceased for the latter having murdered the former's brother. The result of Police Investigation declaring Muhammad Ashraf to be innocent and absence of any recovery from him influenced the mind of the learned trial Judge for acquitting him. He thought that the eye-witnesses viz-a-viz Hamid appellant were independent and on that score their testimony in respect of him needed no corroboration. Any way he considered the recovery of gun, P. 8, at his behest to be sufficient corroboration of the evidence of the eye-witnesses. Therefore, he convicted the appellants.
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15. In appeal the learned counsel for the appellants contended that the ocular evidence of the occurrence was not worth placing reliance upon as it was of highly interested nature and it was not corroborated by any independent evidence. In these circumstances, the learned counsel submitted, the appellants could not be held guilty on the basis of biased testimony of the prosecution witnesses. It is true that the eye-witnesses in this case are not disnterested persons. Bashir Ahmad (P. W. 8) is the father and Tahir Ahmad (P. W. 12) is the elder brother of Tasneem Akhtar deceased. Hamid Ahmad (P: W. 9) is their partyman. Their evidence implicating Muhammad Ashraf, the acquitted accused, has not been found true. Therefore, the rule of caution requiring corroboration from an independent and unimpeachable score will have to be applied before accepting their testimony at face value. 16. The occurrence took place in broad daylight. The appellants were the residents of the same village where the eye-witnesses lived. Therefore, the appellants' identity could not have been mistaken by the eye-witnesses. The learned counsel tried to make much capital out of the absence of any independent witness. He maintained that the occurrence took place in the fields during day time and it was inconceivable that no other unconnected person was present in the fields to witness the assault carried out by the appellants. It is possible that some other persons might have seen the appellants launching the fatal attack upon the deceased. However, in view of the previous blood feed between the parties none would have loved to come forward, for obvious fear of cultivating life long enmity with the appellants and their family, to speak the truth at the bar. It is not uncommon in the rural society for people to shun giving evidence against an accused for quite often a courageous truthful witness has to pay heavily afterwards in the sense that the party against whom he appears retaliates sometimes in most undesirable and unpleasant manner. In these circumstances to sum up courage to appear as witness in the Court against an accused is by no means an easy task. So reason for non-appearance of any disinterested person to bear testimony to the eye-witness account of the occurrence in this case is understandable. 17. Learned counsel for the appellants argued that a period of no fewer than six years had elapsed since murder of Muhammad Aslam brother of Muhammad Afzal appellant, at the hands of the deceased had taken place, the parties had compromised the dispute and had lived peacefully during all this period and consequently any grievance on account of murder of Muhammad Aslam, if there had been any, had vanished and, therefore, the appellants could not be said to have any motive to murder the deceased. He submitted that in such a situation the alleged motive set up by the prosecution having found to be false the evidence of the prosecution witnesses should be scrutinised with utmost care. He referred to the rule enunciated by the Supreme Court in Ilabibullah v. State (1) in support of his contention. It. Is difficult to concede the contention of the learned counsel that commission of murder by the deceased of the brother of Muhammad Afzal appellant would not have furnished a motive for the murder of the deceased. The ill-feelings developed by Muhammad Afzal might have subsided for some time but cannot be said to have been completely extinguished. Therefore, we would like to proceed to examine the evidence on the premises that the acrimonious feelings generated by the murder of Muhammad Aslam by the deceased motivated the appellants do away with the deceased and injure Tahir Ahmad (P. W. 12) who was involved with them in litigious affairs. 18. Quoting the observations made by this Court in Muhammad Munir v. State (2) the learned counsel urged us to insist upon independent and strong corroboration of the testimony of the interested eye-witnesses for recording finding of guilt against Muhammad Ashraf who has earned acquittal. We are in agreement with the learned counsel that for holding the acquitted accused as guilty, who had been implicated by the same eye-witnesses who gave evidence against the appellants, a strong independent corroboration of the ocular evidence will be necessary.
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19. Bashir Ahmad (P. W. 8), Hamid Ahmad (P. W. 9) and Tahir Ahmad (P. W. 12) substantially described the occurrence and what the appellants and their co-accused did in the terms mentioned in the First Information Report and referred to above. Hamid. Ahmad (P. W. 9) received gunshot wound and was injured at the hands of the appellants. His presence is well-marked at the time and scene of occurrence. These eye-witnesses attributed causing of fatal injuries to the deceased to Muhammad Ashraf the acquitted accused. Muhammad Afzal appellant was ascribed the specific part of firing at and injuring the left elbow of the deceased. Specific shot fired by Hamid appellant was said to have hit the right wrist of the deceased.. Injury No, o found on the body of the deceased was not specifically attributed to any one of the appellants or their acquitted co- accused. (1) PLD 1969 SC 127 (2) PLD 1978 Lab. 938 20. The most important piece of evidence lending corroboration to the testimony of the eye- witnesses in the case,of Muhammad Afzal appellant is the recovery of the crime empty cartridges from the spot, of the gun, Exh. P. 7, at his instance and matching of one of the aforesaid crime empty cartridges with Exh. P. 7. None of the crime empties was found to have been fired from the gun, Exh. P. 8, which Hamid appellant got recovered. Therefore, corroboration in his case is not forthcoming. Corroboration was also found lacking in respect of Muhammad Ashraf, the acquitted accused, from whom no recovery of any incriminating article was effected. 21. By comparison of the facts of the cases Saee v. State (1), Pehlwan v. State (2), Mumtaz Ahmad v. State (3) and Talib Hussain v. Fazal Hussain (4) with those of the instant Case the learned counsel for the appellants tried to show that the recoveries of the crime empties and the gun, P. 7, could not be treated as genuine. He pointed out that as in Saee v. State the place where the crime empties were found lying was not shown by Muhammad Shard pat wart (P. W. 4) in the site plan prepared by him and further the attesting witness of the recovery memorandum, Exh. P. K. Was no other than the eye-witness to the occurrence, namely, Tahir Ahmad (P. W. 12). In Pehlwan v. State the recovery of the weapon of offence, a hatchet, sought to be proved by the complainant and the Investigating Officer was brushed aside as ingenuine. In Mumtaz Ahmad's case compliance with the provisions of section 103 of the Code of Criminal Procedure was not found to have been secured inasmuch as instead of procuring attestation of respectable inhabitants of the locality where the recovery took place residents of distant places were imported to witness and attest the recovery proceedings and, therefore, the recovery of the weapon of offence and of the blood-stained clothes at the instance of the accused was not believed. In Talib Hussain v. Fazal Hussain the First Information Report contained' elaborate details of the occurrence and, therefore, absence of any reference to crime empties ' therein was considered as one of the factors to reach the conclusion for not accepting their recovery as set up by the prosecution. The First Information Report in the instant case does not give meticulous details covering every facet of the occurrence. Muhammad Sharifpatwari (P. W. 4) prepared the site elan, Exh. P. A. a week after the occurrence had taken place. He was to indicate various locations in the plan as told by the witnesses. It is possible that some one might not have pointed out to him the place where the crime empties were found lying before they were picked up by the police. Nevertheless such place was indicated by the Investigating Officer in the plan and explained in his Note No, 4. The presence of the crime empty cartridges at the spot finds mention in the inquest report prepared by the Investigating Officer soon after the occurrence. As would be presently' noticed these crime empties were deposited in the malkhana of the Police Station from where they were despatched to the Forensic Science Laboratory, Lahore, before Muhammad Afzal appellant was arrested. 22. Apart from questioning the authenticity of the recovery of the empty cartridges from the place of occurrence and of the gun, Exh. P. 7, at the behest of Muhammad Afzal appellant' the learned
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counsel maintained that as the recovery witnesses produced by the prosecution were no other (I) PLD 1974 Lah. 184 (2) 1975 P Cr. L J 1096 . (3) 1974 P Cr. L 137 (4) PLD 1976 SC 518 than close relatives of the deceased the so-called corroboration could not be described as independent. The recovery of the crime empties. Exh. P. 9/1-2, was attested by Tahir Ahmad (P. W. 12), an eye-witness of the occurrence, and Ata Ullah Khan (P. W. 10), the Investigating Officer. Haji Muhammad Siddiq (P. W. 11), maternal uncle of the deceased, and Hamid Nawaz (P. W. 13), the other Investigating Officer, have borne testimony to the recovery of the gun, Exh. P. 7, effected at the instance of Muhammad Afzal appellant. No doubt Tahir Ahmad (P. W. 12) and Muhammad Siddiq (P. W. 11) are not disinterested witnesses and the proof of recoveries on the basis of their evidence alone cannot be accepted as requisite corroboration yet the evidence of the Investigating Officers in this behalf cannot be easily brushed aside. They were quite fair in conducting investigation of this case. They declared Muhammad Ashraf, acquitted co-accused of the appellants, to be innocent. They did not plant a gun matching with a crime empty picked up from the spot upon Hamid appellant. It has not been shown that they were inimically disposed towards the appellants or that they had any motive falsely to involve them in the case. There is no proof of their manipulating the investigation in a partial manner. Hence it would be legitimate to bank up their testimony for proving the recovery of the Crime empties, Exh. P. 9/1-2 from the place of occurrence as also of the gun, Exh. P. 7, from the house of Muhammad Afzal appellant at his instance. The proposition that recovery can be proved by evidence of Investigating Officer alone has been endorsed by this court as also by the Supreme Court in, among others? Islamul Haq v. State (1), Khaqan v. State (2) and Mumtazuddin v. State (3). Therefore, in the circumstances of the case the recovery of the crime empties from the spot and of the gun, Exh. P. 7, at the instance. Of Muhammad Afzal…
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