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Petitioner: JAVED AHMAD and anothers VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Raja Muhammad Khurshid, Muhammad Zubair Title: JAVED AHMAD and anothers vs THE STATE Case No.: Criminal Appeal No,77 of 1991 and Murder Reference No,89 of 1992 Date of Judgment:1995-10-31 Reported As: 1996 P Cr. L J 1984 Result: Appeals dismissed
JUDGMENT
JUDGMENT ' RAJA MUHAMMAD KHURSHID, J.--- A case under section 302/ 307/34, P.P.C. Was registered against the appellants namely Khalid Mehmood (25 years), Khurshid Ahmad (34 years), Javed Ahmad (26 years) and Saeed Ahmad (22 years) for an occurrence which took place on 12-4-1989 at 10-30 a.m. In the area of Nishtar Road, Lalazar Colony, Police Station Wah Cantt, District Rawalpindi. 2. Brief facts are that Muhammad Shafique Khan made a statement Exh.P.T. Before Muhammad Yahya, Sub-Inspector, Incharge Police Post, Lalazar, Wah Cantt. At 12-15 p.m. On 12-4-1989. In which he deposed that he was residing with his parents in Lalazar Colony, Wah Cantt. His maternal-uncle Ghulam Kibriya was resident of the same colony and was suffering from some gastric trouble. His condition aggravated, whereupon he was taken to a doctor in Lalazar Colony by the complainant. Both of them were returning after fetching medicine that they were attacked near the under construction house of Khalid accused etc. At Nishtar Road at about 10-30 a.m. The appellant/accused, Khalid was armed with .12 bore gun, Khurshid appellant/accused was carrying a carbine, Javed appellant/accused was armed with hatchet and Saeed appellant/accused was armed with Taisha. All the four accused/appellants were sons of Muhammad Maskeen. All the accused started giving abuses to the complainant and his uncle Ghulam Kibriya, to which the latter also replied. Whereupon, Khalid accused fired with his gun at Ghulam Kibriya hitting him on his head and other parts of his body. The complainant raised noise, which attracted Khan Muhammad and Abdul Salam, P.Ws. It also attracted Mst. Chan Bibi i,e, mother of the complainant to the spot. On seeing them the accused Khurshid fired from his carbine at Khan Muhammad hitting him on his right leg and the abdomen. After receiving the fire injuries Ghulam Kibriya and Khan Muhammad fell down. Javed accused thereupon gave hatchet blow on the back of Ghulam
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Kibriya and Saeed accused injured his left leg by giving Taisha blow. The complainant went forward, whereupon Khalid accused made a straight fire at him. The complainant received injuries on his mouth, head and right scapula on account of that fire. In the meantime Saeed accused gave a Taisha blow on the head of complainant. Khurshid accused also fired from his carbine at Mst. Chan Bibi thereby injuring her head. The accused Javed gave hatchet blow on her left knee Ghulam Kibriya and Khan Muhammad aforementioned succumbed to their injuries at the spot. 3. Motive for the occurrence relates to an incident which took place 6/7 years prior to the pi esent occurrence. The servant of Ghulam Kibriya deceased namely Waseem was injured by the accused persons etc. And their father, for which a case under section 307, P.P.C. Was got registered at Police Station Wah Cann. The assailants of that case were challaned, but were acquitted by the Court. On account of that grievance, all the accused in pursuance of their common intention fatally injured Ghulam Kibriya and Khan Muhammad deceased. They also allegedly committed murderous assault upon the complainant and his mother Mst. Chan Bibi. 4. On the basis of aforesaid statement of Muhammad Shafique Khan, complainant, a formal F.I.R. Exh.P.T./1 was recorded on the same day at Police Station Wah Cantt. District Rawalpindi at 12-25 p.m. All the accused were challaned under section 302/307/34, P.P.C. And sent up for trial to the Court of Session, Rawalpindi. 5. The case came up for hearing before Ch. Zafar Hussain, learned Additional Sessions Judge, Rawalpindi, who vide his judgment, dated 11-5-1991 came to the conclusion that the prosecution had been successful to prove its case against all the accused persons. The accused Khalid Mehmood and Khurshid Ahmad were sentenced to death each on two counts subject to the confirmation by this Court for the murder of Ghulam Kibriya and Khan Muhammad under section 302/34, P.P.C. They were also sentenced to a fine of Rs,10,000 or in default to undergo R.I. For one year each on two counts. They were also directed to pay compensation of Rs,30,000 to the heirs of each of the deceased or in default to undergo six months' R.I. The accused Javed Ahmad and Saeed Ahmad were sentenced to imprisonment for life under section 302/34, P.P.C. For causing death of Ghulam Kibriya and Khan Muhammad in furtherance of their common intention with their co-accused Khalid Mehmood and Khurshid Ahmad. They were also sentenced to a fine of Rs,5,000 each or in default to undergo six months' R.I. Each. They were further directed to pay compensation in the sum of Rs,10,000 to the heirs of each of the deceased or to undergo six months' R.I. Each. In addition to that all the accused/appellants were convicted under section 307/34, P.P.C. For committing murderous assault upon injured P.Ws. Namely Muhammad Shafique and Mst. Chan Bibi and they were sentenced to four years' R.I. Each on two counts and a fine of Rs,1,000 each or in default to undergo R.I. For one month each. They were directed to pay compensation to the injured P.Ws. In the sum of Rs,1,000 each or in default to undergo R.I. For one month. The benefit of section 382-B, Cr.P.C. Was also given to all the accused/ appellants. 6. A reference under section 374, Cr.P.C. Was made to this Court for confirmation of death sentences awarded to Khalid Mehmood and Khurshid Ahmad accused/appellants, whereas Criminal Appeal No,76 of 1991 was filed by these convicts against their conviction. Another Criminal Appeal No,77 of 1991 was filed by Javed Ahmad and Saeed Ahmad against their conviction. 7. All the three aforesaid matters will be disposed by this judgment. ' It seems to be just and convenient to summarize the evidence examined at the trial to have a clear picture of the case before us. Muhammad Ishaq, Draftsman was examined as P.W.1. He has prepared the site plan Exh.P.A. And Exh.P.A.11. All the drawings points and notes in black ink were in his hand and signed by him. Dr. M. Shujaat Khan was examined as P.W.2. He had conducted post- mortem examination on the dead body of Ghulam Kibriya deceased at about. On 12-4-1989. He found the following injuries on the dead body:--
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(1) A large wound about 15 to 20 c.m. Long from the front of the head, edges black, (shape given in diagram). Brain is missing from the skull and opened. (2) A wound on the left side of the skull edges black and skull fractured. (3) A wound on left thigh 4 c.m. Below the iliac crest about 4 c.m. In diameter. On outer side tracing inwards. One pellet found about 15 c.m. And 1 c.m. In diameter. Tracing the wound further three small opening were found on the right side of pennia in the pubic region. Tracing further the wound three small pellets were found under the skin on right thigh on the front. (4) A sharp-edged wound about 5 c.m. Long on back at the level of first lumber vertebrae and also at second lumber vertebrae, 1 c.m. Wide from the middle 4 c.m. Deep on the left\ side. (5) A sharp-edged wound 1 c.m. Long on front of left thigh. 9. According to him the death of the deceased occurred on account of brain haemorrhage, which was considered sufficient to cause death in the ordinary course of nature. The duration between the injuries and death was few seconds and the post-mortem was conducted 5/6 hours after death. Injuries Nos.1, 2 and 3 were caused by fire-arm weapon, whereas injuries Nos.4 and 5 were result of sharp-edged weapon. 10. The same doctor had conducted autopsy on the dead body of Khan Muhammad, deceased, at 5-10 p.m. On the same day. He had found the following injuries:- (1) Two wounds in front of thigh just below the groin on right thigh edges black about 3/4 c.m. Diameter. (2) Two wounds on the outer and back of thigh. This is the exit wound of injury No, 1. (3) Two wounds on inner side of the thigh, 3/4 c.m. In diameter, edges black. (4) Two wounds on the back of the thigh corresponding to injury No,3. (5) A wound on the abdomen 3/4 c.m. In diameter below the umblicus, 8 c.m. And just lateral to the mid line. Tracing it on back 20 c.m. Deep. 11. The death was result of shock and haemorrhage which were sufficient to cause death in ordinary course of nature. Injuries Nos.1 to 4 on the right thigh were caused by fire-arm. The time between the injuries and death was 15 minutes to half hour and duration between death and postmortem examination was 6 to 8 hours. 12. The same doctor examined Mst. Chan Bibi, injured P.W. On the same day at 6-30 p.m. He found the following injuries on her person:-- (1) A wound on the top of skull on the middle edges black 1 c.m. In diameter and 12 c.m. From the eye. Bleeding and bone deep. (2) A wound on the left side of skull 9 c.m. Above the left ear, edges black and bleeding, bone deep. (3) A wound about 3 c.m. In diameter which is only ecchymosed (blood stained), three c.m. Below the left knee. 14. Injury No,3 was considered simple and was caused by blunt weapon. Whereas the injuries Nos.1 and 2 were caused by fire-arm weapon. 1 ' 15. Dr. Waseem Shahzad, P.W.8, was examined as he had conducted medico-legal examination of Muhammad Shafique, injured P.W. On 12-4-1989 at 12-45 p.m. He found the following injuries on the person of victim:- (1) A wound on right mandipural region which is 5 c.m. x 3 c.m., bone deep with black margins. (2) A wound on right shoulder adjacent to clavical 1-1/2 c.m. x 1-1/2 c.m. With black edges. (3) Five fire-arm wounds of entrance, each 1-1/2 c.m. x 1-1/2 c.m. With black edges on medial side of left thigh. Wounds are within interval of two to four c.m. (4) A wound on front of head directed before backward. Wound is 5 c.m. Long, edges clean cut, margins tampering and wound is skin deep.
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16. Injuries Nos.1, 2 and 3 were result of fire-arm weapon, whereas injury No,4 being simple was caused with a sharp-edged weapon. 17. Apart from the medical evidence the prosecution had examined formal witnesses such as Muhammad Aslam, Constable (P.W.3), Zulfiqar Ali, Constable (P.W.4), Muhammad Akbar, Head Constable (P.W.5), Rab Nawaz (P.W.6) Muhammad Amin, Constable (P.W.7). 18. The recovery witness Abdul Rehman was examined as P.W.9 as Taisha P.10, Hatchet P.11, shotgun P.12 and carbine P.13 were got recovered by Saeed Ahmad, Javed Ahmad, Khalid Mehmood and Khurshid Ahmad, accused/ appellants respectively while in police custody. These were taken into possession in the presence of aforesaid witness. Kala Khan, P.W.10, was examined as he was a witness to the memo. Regarding possession of blood-stained earth and empty cartridges from the spot. 19. The next set of witnesses consisted of the statements of complainant, Muhammad Shafique (P.W.11) and his mother Mst. Chan Bibi (P.W.12). Both of them were cited as eye-witnesses and they were also injured during the occurrence. The motive regarding the occurrence was also supported by the complainant P.W. The Investigating Officer, Muhammad Yahya, S.-I. Was examined as P.W.13. 20. The accused were examined under section 342, Cr.P.C. But they denied to have committed the occurrence. They came up with a defence version that they were neighbours of the deceased at Allama Iqbal Road and Ghulam Kibriya had quarrel with them seven years back. As result of which they sold their houses and shifted to Lalarukh Colony in a rented house as they were unable to face the complainant's side who were in the police department. They had started construction of shops and a house at Nisht Road, Lalazar Colony, whereupon Ghulam Kibriya and his brother resented' their return to the colony. On the fateful day, the accused Khalid Mehmood and Saeed Ahmad were busy with the construction that Ghulam Kibriya alongwith Khan Muhammad deceased arrived at the spot. They took an exception to the construction material lying on the road and started abusing both the accused, who also returned the abuses, thereupon both the deceased started hurling brick-bats upon aforementioned accused, who allegedly took shelter behind the construction. Many people gathered at the spot and dissuaded the complainant's side of high handedness. In the meantime, both the accused heard the fire-shots and when they came out of shelter they found both the deceased lying dead close to the north-western corner of the accused's house. They were allegedly armed with carbines at that time. Mst. Chan Bibi and Muhammad Shafique P. Ws. Had allegedly arrived after the expiry of deceased persons and were not in position to see the occurrence resulting into their death. Their co-accused namely Javed Ahmad and Khurshid Ahmad were allegedly not present, but were falsely involved alongwith the aforesaid accused by the complainant side. It was also added that Muhammad Shafique etc. Did not reside at Nishtar Road nor there was any shop or clinic of any doctor on that road. 21. Other two accused, namely Javed Ahmad and Khurshid Ahmad had also appeared in defence, under section 340(2), Cr.P.C. To disprove the allegations against them. They also repeated the same defence story, which was put by other co-accused, namely Khalid Mehmood and Saeed Ahmad. 22. We have heard the learned defence counsel at some length, who has also taken us through entire evidence recorded during the trial. It is contended by the learned counsel for defence that the prosecution was never fair to the appellants. In this respect it was contended that a false motive was put up regarding an incident, which took place 6/7 years back and even according to that incident the complainant side was supposed to be aggrieved as their servant was beaten up and the accused side was acquitted. According to the learned counsel the prosecution realizing it a weak motive had introduced another false motive by saying that Ghulam Kibriya, deceased, his servant and friend had put off the clothes of Javed accused, for which a case was registered against the deceased and his accomplice, but they were discharged. The learned counsel added
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that every possible effort was being made to embellish the case by diverting from the original story. It was, therefore, submitted that even if the motive was considered on its face value then too the grievance would be with the complainant's side rather than the appellant side. It was argued that since there was an enmity between both the sides, therefore, the improvement made in setting up altogether a new motive destroyed the prosecution's case. 23. Similarly it was urged that the eye-witnesses were not only inimical but were also interested besides being chance witnesses. In fact they had never seen the occurrence. In this respect it was submitted that they might have been present, but had not seen the main occurrence as they had reached the spot later on from a different locality. The learned defence counsel was of the view that though the eye-witnesses were injured, but their statements should not be treated as gospel truth because they have been improving upon their statements in order to bring them in accord with medical evidence which was allegedly inconsistent with the ocular account of occurrence. The story that the complainant had accompanied his maternal-uncle namely Ghulam Kibriya, deceased, as the latter was ill allegedly does not ring true because no medical prescription was recovered nor any doctor was examined by the prosecution to show that in fact the deceased had been ill or had gone out for treatment. It was alleged that there was no shop of chemist or of any doctor in the locality. Nor any such shop or doctor was ever mentioned during the trial by the complainant side. It was, therefore, urged that the prosecution witnesses were telling lies out and out. In the event they will not be considered trustworthy and reliable to sustain the charges against the appellant/accused. The learned counsel also assaulted the manner of investigation and the attitude of the Investigating Officer, when he was in witness-box as P.W.13. The accused party had allegedly taken a defence version before the police, but the case diaries were shut down to them and the Investigating Officer refused to peruse them when asked to do so during his statement as P.W.13. This allegedly led to gross injustice to the accused persons, who were highly prejudiced as their earliest defence version could not come on record. In this respect it was contended that the learned trial Judge had also failed in his duty to direct the witness to look up the relevant diary and to bring on record first defence version. The reliance was placed on 1968 PCr.LJ 176 (Supreme Court) and PLD 1969 Lah. 548. The learned defence counsel had summed up his contentions by arguing that the ocular account of occurrence was highly discrepant and inconsistent with the medical evidence. The recoveries were not even relied upon by the learned trial Court, therefore, there was no other corroboration of the eye-witnesses so as to believe them. 24. The learned public prosecutor, however, stated that the F.I.R. In this case was lodged promptly. Injured P.Ws. Were medically examined on the same day and there was nothing to suggest that they had suffered the injuries with friendly hand. On the contrary the nature of injuries was such that it could not be suffered except through an enemy. The ocular account of occurrence though carries minor improvements, but their intrinsic value could not be doubted because they had actually seen the occurrence and were also natural being resident of the same locality. The ocular evidence was stated to be in accord with the medical evidence, which further strengthened the prosecution case. The defence story was stated to be highly improbable as the injuries were not explained on the persons of P.Ws. In any probable manner nor any convincing reasons were given regarding the killing of the deceased persons near the house of the accused party. Finally it was contended that there was no merit in the appeals filed by the appellants. 25. We have considered the arguments addressed at Bar. Firstly we have to follow the golden principle that the prosecution has to prove its own case against the accused beyond any reasonable doubt. It is to be seen if the prosecution has been successful to prove the indictment against the appellants. First of all in this respect it will be mentioned that the occurrence in this case was rc.2orted to the police promptly and without any loss of time. The occurrence took place
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at 10-30 a.m. On 12-4-1989 and the statement of the complainant was recorded at the police post on the same day at 12-15 p.m. Formal F.I.R. Was also recorded on the same day at 12-25 p.m. The intervening distance between the place of occurrence and the police station was 2-1/2 miles. It is thus obvious that the F.I.R. Was lodged with the police with promptitude. This speaks for its genuineness as there was no time either to embellish the story or to introduce factors alien to the occurrence. This seems to be a straight forward and honest version of the occurrence given by a person who being the relative of the deceased Ghulam Kibriya was accompanying him while he had gone out for his treatment regarding his gastric trouble. There is nothing unusual to presume nor it was improbable on the part of the complainant to accompany his maternal-uncle Ghulam Kibriya on such occasion. Rather it seems usual according to the norms of our social set up that he would accompany his ailing maternal-uncle in the given situation. Likewise arrival of Mst. Chan Bibi at the spot is also very natural as she was living in the same locality and near to the place of occurrence. An attempt has been made to show that Nishtar Road was a different locality than Lalazar Colony, but without any tangible effect. A look at the site plan Exh.P.A. Will show that Nisthar Road leads to Lalazar Colony and that the place of occurrence falls thereon and that the under construction shops and house of the accused also fall thereon. It cannot he, therefore, fairly said that in fact P. Ws. Had come to see the occurrence from different locality than Lalazar Colony. In fact, they were neither chance witnesses nor stranger to the locality. Under the given circumstances they were rather natural witnesses to the occurrence. Having come to this conclusion, it is to be seen whether their evidence can be discarded on account of minor improvements made by them during the trial. In this respect, it may be pointed out that there were no major contradictions in their statements neither there were any crucial improvements so as to destroy the prosecution version. The complainant had mentioned about the motive and also regarding following incident in which the clothes of Javed accused were stripped off for which the accused lodged a case against Ghulam Kibriya and his accomplices, but they were discharged in that case. This seems to be an incident of the same series because previous to that the accused were acquitted in a case in which they had beaten the servant of the aforesaid deceased. Even the accused had admitted this incident, but had denied that the clothes of Javed accused were taken off. However, the incident of quarrel was admitted. It was not something new as it had been admitted halfheartedly. The prosecution story, therefore, remains unaffected even with the introduction of this second motive which also gets support from the defence version. 26. The argument that since the servant of Ghulam Kibriya, deceased was beaten by the accused party and the latter were acquitted, therefore, in fact Ghulam Kibriya deceased and his party should have been aggrieved rather than the accused. But no hard and fast rule can be laid down in this respect because the motive remains hidden in one's mind and cannot be translated except through action. It may be said that the accused might have taken to their hearts that only a servant of the deceased Ghulam Kibriya was beaten for which they were involved in a criminal case under section 307, P.P.C. To involve them in such a case for a servant may have hurt them keeping in view false ego prevalent in our society. It can, therefore, be safely said that the motive initially set up by the prosecution was proved against the accused persons. They must have felt small and insulted, when one of them was allegedly undressed. This must have added fuel to fire. It is perhaps for that reason that the accused had decided to give up their residence in the locality as it is clear from their evidence. It can be, therefore, reasonably concluded that the accused party was an aggrieved party. 27. Now it is to be seen if the eye-witnesses in this case can be believed in the background of the aforesaid enmity. It is on record that the incident of motive had taken place about 6/7 years prior to this occurrence i,e, when the accused wanted to return to their old locality by constructing the shops and a house. All the accused persons present at the place of occurrence on seeing the
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deceased Ghulam Kibriya had started abusing him upon which the latter also returned the abuses. The said Ghulam Kibriya and the complainant were empty-handed, whereas the accused were armed with different weapons as stated above. They attacked upon the deceased Ghulam Kibriya and when Khan Muhammad came out on hearing the noise he was also gunned down. P. Ws. Muhammad Shafique and Mst. Chan Bibi were also injured by the accused, which will show that they were full of venom and they attacked them as soon as they came within their sight. It is a matter of common observation that such like events do not long last and end up in a flash of moment. In such a situation it is very difficult to expect from an eye-witness to give photographic account of the happenings. The power of observation varies from person to person and therefore, an allowance is to be given for minor discrepancies occurring in the evidence given by them. It seems to be rather unnatural that a parrot like statements should be given by all the witnesses. If it so happens then it would be rather unnatural. A little bit of variation is therefore, to be ignored, which may occur due to varied power of observation possessed by different persons, who may slightly differ in diction while rendering description of an occurrence. It is but natural that a person may be gifted with a keen memory and forceful power of expression, but another may be less talented and still another one may have lesser potential than the other two. But all of them will be credible, if none of them miss the main objection. For example there will be no discrepancy regarding time, if a witness…
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