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Petitioner: MUHAMMAD ASIF and another VS Respondent: THE STATE
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Iftikhar Hussain Butt Title: MUHAMMAD ASIF and another vs THE STATE Case No.: Criminal Appeals Nos.40 and 44 of 2005 Date of Judgment:2006-04-07 Reported As: 2006 P Cr. L J 2009 Result: Appeals dismissed
JUDGMENT
JUDGMENT ' IFTIKHAR HUSSAIN BUTT, J.--- Murder Appeal No,40 of 2005 has been taken up along with Criminal Appeal No,44 of 2005 as they arise from the common judgment, dated 28-2-2005 passed by District Criminal Court, Mirpur. Both the appellants i,e, Muhammad Asif and Shahid Anjum have been convicted under sections 302(b) and 364(A), A.P.C. And sentenced to life imprisonment with the benefit of section 382-B, Cr. P. C. ' The prosecution case as revealed from F.I.R. Exh.P.A. Recorded on written application of Mst. Zahida Parveen (P.W.1) is that her husband Haji Muhammad Latif has gone to Saudi Arabia to earn his livelihood. On 27-4-1997 at 10-00 a.m. Shoaib called out her son Muhammad Shafique aged nine years but he did not go out. Muhammad Shafique went out to play in the street at about 10-30 a.m. But did not come back for a long time due to which she felt Worried and tried to locate his whereabouts but of no avail. During the search at about 3-30 p.m. Muhammad Zaheer and Tariq Mehmood told her that they saw Muhammad Shafique along with Muhammad Asif, Shoaib and Shahid Anjum at about 11-00 p.m. Riding on a Car No,5674-IDD while going towards Bandral Toll Post. She strongly suspects that Asif, Shoaib and Shahid Anjum have kidnapped her son Muhammad Shafique for ransom and have taken away to some unknown place with the intention to do away with his life. Muhammad Shafique was wearing trousers and shirt of light brown colour, and "Chappal". ' The above mentioned report was recorded by Ghulam Akbar S.-I. Police, Incharge Police Post Thothal, (P.W.19) in Daily Roznama and sent to City Police Station Mirpur for registration of the case where a Case No,110 of 1997 was registered by Mirza Tufail Hussain, S.-I. Police (P.W.20) on 27-4-1997 at 1630 hours
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' On 28-4-1997, Ghulam Akbar, S.-I. (P.W.19) apprehended Muhammad Asif and Shahid Anjum, accused persons, at 1-00 a.m. And 2-30 a.m. Respectively. Thereafter, he proceeded at the spot. Muhammad Asif, accused, led to the recovery of dead body of Muhammad Shafique deceased, which was taken into possession vide recovery memo. Exh.P.G. Attested by Abdul Aziz (P.W.6) and Muhammad Khalil (P.W.7). On the same day one pair of "Chappal" of the deceased Exh.P.4 was recovered at the pointation of Muhammad Asif, accused, vide recovery memo. Exh.P.D. In presence of Muhammad Zaheer (P.W.3) and Muhammad Abdullah (P.W.8). Shahid Anjum accused person, led to the recovery of one plastic bag P.5, two used disposable syringes 10 cc P.6, two used Pentothal injections P.7, two used sterile water P.8, one pentothal injection P.9 and one sterile water P.10 vide recovery memo. Exh.P.E. In presence of above mentioned witnesses. A watch P.1 was recovered at the pointation of Shahid Anjum, accused person vide recovery memo. Exh.P.C. In presence of Tariq Mehmood (P.W.2) and Muhammad Zaheer (P.W.3). A Car No,5674-IDD Model 1982 hired by Shahid Anjum from Kh. Ishaq and used for kidnapping was taken into possession with its registration book vide recovery memo. Exh.P.J. Attested by Muhammad Ehsan Head Constable Police (P.W.12) and Muhammad Aslam Constable Police (P.W.13). The rent book P.13 along with receipt, the identification card of Shahid Anjum P.14, two currency notes of Rupees five hundred P.16 and P.17 were recovered from Kh. Muhammad Ishaq Proprietor, Mirpur Motors who stated that Car No,5674-IDD was hired out to Shahid Anjum, accused. ' On the same day Ghulam Akbar S.-I. Police (P.W.19) inquired about the cause of death of deceased vide letter Exh.P.A. (as F.I.R. Has already been marked as Exh.P.A., therefore, the aforesaid letter is marked at Exh.P.A./11). He also prepared injury form of the deceased Exh.P.H./3. On the same day inquest report Exh.P.H. Was prepared by Akram Hassan S.-I. Police (P.W.21). ' After the post-mortem, on 28-4-1997 the blood-stained clothing trousers P.2 and Shirt P.3, were taken into possession by Ghulam Akbar, S.-I. Police (P.W.19) from Dr. Abdus Salam (P.W.18) vide recovery memo. Exh.P.B. In the presence of Tariq Mehmood (P.W.2) and Khalid Mahmood (P.W.9). ' On 2-5-1997, the site plan Exh.P.L. Was got prepared by Muhammad Rashid Patwari (P.W.17). ' On 5-8-1997 letter Exh.P.R. Was written to C.M.O. D.H.Q. Hospital, Mirpur and his opinion was obtained as to whether the death could be occurred to the Pentothal injection. ' It was reported by Chemical Examiner in the light of document Exh.P.Q. That poison was not detected from the body of deceased. ' The post-mortem of the body of Muhammad Shafique was performed on 28-4-1997 by Dr. Abdus Salam (P.W.18) Civil Medical Officer D.H.Q. Hospital, Mirpur vide post-mortem report Exh.P.N. He noticed the following injuries on the dead body of deceased. (1) Multiple scratch marks on face with leaves of bushes on face. (2) Multiple scratch marks on lower abdomen. (3) Multiple scratch marks on both legs with some leaves of bushes and th9rns on legs. (4) Abrasion on toes of Rt. Foot with clotted blood. (5) Two scratches on sole of Rt. Foot. (6) Post-mortem staining on face, chest, lower abdomen and both thighs. (7) Rigor mortis fully developed. (8) Three injection marks in view of left cubital fossa. ' According to doctor, "the cause of death is due to intravenous injections of sedative/hypnotic drug leading to cardio pulmonary arrest". ' During the investigation offences under sections 302 and 34, A.P.C. Were added and all the three accused persons were sent to face trial before the District Criminal Court, Mirpur on 18-8-1997. The accused persons during the examination under section 242, Cr.P.C. Pleaded not guilty and claimed the trial.
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' Mst. Zahida Parveen, complainant (P.W.1), Tariq Mahmood (P.W.2), Muhammad Zaheer-ud-Din (P.W.3), Qazi Abdul Latif (P.W.6), Muhammad Khalil (P.W.7), Muhammad Abdullah Qureshi (P.W.8), Khalid Mehmood (P.W.9), Asmat Ullah (P.W.10), Kh. Muhammad Ishaq (P.W.11), Muhammad Ehsan Head Constable (P.W.12), Muhammad Rashid Patwari (P.W.17), Mirza Tufail Hussain, S.-I. Police (P.W.20) and Akram Hussain S.-I. Police (P.W.21), were produced in support of the prosecution case whereas Muhammad Ishtiaq Record Keeper was produced instead of Dr. Abdul Salam (P. W.18) and Akram Hussain (P.W.21) also deposed instead of P. W.19. However, Muhammad Afsar Constable Police (P.W.13), Nadeem Iqbal, (P. W.14), Muhammad Hanif (P.W.15) and Muhammad Javaid (P.W.16) were abandoned by the prosecution. ' After completion of the prosecution evidence on 9-1-2003 an opportunity was provided to the accused persons to furnish explanation in respect of all evidence and circumstances adduced against them by the prosecution during the examination under section 342, Cr.P.C. All the accused persons pleaded that false evidence was produced against them and nothing was recovered at. Their pointation. Muhammad Ramzan (D.W.1) Zahid Hussain (D.W.2), Ghulam Farid (D.W.3), Aamir Hussain (D.W.4) and Muhammad Fardous Chaudhry (D.W.5) were produced in the defence. ' On conclusion of trial, Muhammad Asif and Shahid Anjum were convicted and awarded the sentence, of life imprisonment, however, the co-accused Muhammad Shoaib,.Who had also been sent up to face trial, was acquitted by extending him the benefit of doubt. ' The learned Advocates for the parties were heard pro and contra. ' In support of appeal, Ch. Ali Muhammad Chacha, the learned counsel for accused persons vigorously argued that the case of prosecution is based upon the circumstantial evidence but the links of the chain of prosecution story have not been proved in accordance with law, therefore, trial Court fell in grave error while passing an order of conviction and sentence. The learned counsel further contended that order of the registration of the case was not recorded on F.I.R. Similarly the signature of Mst. Zahid Parveen is also missing on Parcha Illat' Exh.P.AA./1, whereas Ghulam Akbar S.-I. Police (P.W.19), who allegedly recorded the report in the Register Roznamcha has also not been produced by the trial Court which shows that F.I.R. Was manipulated after the registration of the case, therefore, it cannot be relied upon. According to learned counsel, it is yet to be proved that who had written the F.I.R. The learned counsel pointed out that Tariq Mehmood (P.W.2) and Muhammad Zaheer (P.W.3) are closely related to the complainant party; therefore, their evidence cannot be relied upon. While criticizing the deposition of Tariq Mehmood (P.W.2), the learned counsel submitted that according to him if he had seen the victim accompanying the accused persons then why he went to the house of Nazir and Najeeb in search of the deceased. Similarly, if the fact of kidnapping was in the knowledge of Zaheer P.W. Then why he went to Bandral to find out the whereabouts of the deceased. The learned counsel maintained that the fact of proclamation is also not worthy of credence because if the P.Ws. Had seen the deceased with accused persons then question of proclamation would not arise. The learned counsel argued that the evidence of Qazi Abdul Latif (P.W.4), cannot be taken into consideration because according to the inquest report, the occurrence took place at 12-30 p.m. Therefore, the evidence of an unknown call to P.W. At 5-30 p.m. Is baseless. The learned counsel laid much stress upon the point that evidence of Abid Hussain (P.W.5) is also not reliable because he failed to explain as to why he did not appear before Investigating Officer till 10-5-1997 for 13 days. After reading numerous portions of the statements of Muhammad Abdullah Qureshi (P.W.8), and Mirza Abdul Aziz (P.W.6), the learned counsel argued with vehemence that their evidence is neither clear nor convincing, therefore, does not provide requisite links to the chain of prosecution story. The learned counsel craved that the evidence of Mirza Tufail S.-I. Police (P.W.20), also does not support the prosecution version because according to him Ghulam Akbar S.-I. Police (P.W.19) had informed him that at 10 p.m. The accused have been arrested and he has recovered the dead body. According to the learned counsel, if the recovery
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proceedings were completed on 27-4-1997 then why the recovery memos were prepared on 28-4- 1997, which casts heavy doubt upon the prosecution story. The learned counsel further maintained that the evidence of Khawaja Muhammad Ishaq (P.W.11), negates the prosecution tale because according to him, the car which was used for kidnapping had come back at 1-00 p.m. Whereas according to the prosecution the occurrence took place at 10-40 p.m., therefore, it was not possible for the accused to return the car at 1-00 p.m. Which proves that they are innocent and have been falsely roped in the case. The learned counsel vigorously contended that according to the prosecution, Pentothal injunctions were purchased from Muhammad Hanif P. W.15, the petrol was obtained from Nadeem Iqbal P. W.14 and the accused asked for water from Muhammad Javaid (P.W.16), but all the above P.Ws. Were abandoned by the prosecution which proves that the chain of prosecution story has been broken. The learned counsel laid great stress upon the point that post- mortem report is not reliable because according to the report all organs of the body of deceased were found healthy and according to medical report the poison could also not been detected from the body of the deceased, therefore, the death of the deceased was not possible by Pentothal injections. The learned counsel further submitted that Dr. Abdus Salam, who performed the post- mortem of the deceased, did not appear before the trial Court; therefore, it was not possible for the prosecution to seek the explanation of self-contradictory report of the post-mortem. On the contrary, Dr. Fardous (D.W.5) deposed that the traces of Pentothal injection remain alive in the dead body till the decays. The learned counsel maintained that the complainant has mentioned about the clothing of the deceased in F.I.R. But she did not point out about wearing of watch by the deceased. Furthermore none of the prosecution witnesses has testified that they ever saw the deceased wearing a watch. The learned counsel submitted that Pentothal injections and the syringes were not sent to the expert for examination, therefore, do not provide any support to the prosecution story. The learned counsel finally argued that the trial Court has committed an illegality while recording the order of conviction and sentence in both the offences under sections 302, A.P.C. And 364-A, A.P.C., therefore, impugned judgment be set aside. In support of his contentions, the learned counsel relied upon the following authorities:--- (1) AIR 1934 Cal. 458, (2) PLD 1963 SC 17, (3) 1969 SCM R 388, (4) PLD 1974 Kar. 397, (5) PLD 1976 Kar. 209, (6) 1994 SCR 275, (7) PLJ 2000 Cr.C. Lahore 123. 8. An unreported judgment of this Court in Criminal Appeal No,45 of 2004 titled Sardar Ali v. Muhammad Ibrahim and others decided on 17-9-2005. ' Raja Inamullah Khan, Advocate appearing on behalf of Shahid Anjum accused submitted that explanatory report Exh.P.R. Has not been included in the list of documents annexed with the challan Exh.P.ZZ./1, therefore, it cannot be taken into consideration. The learned counsel further argued that the Investigation Officer was not produced before the trial Court, therefore, a valuable right of cross-examination was denied to the accused which creates serious doubt upon the prosecution case. The learned counsel maintained that according to the prosecution version the intention of the accused persons was kidnapping for the sake of ransom and not to commit murder of the deceased, on this account, the trial Court fell in grave error while passing an order of conviction and sentence. In support of the arguments, reliance was placed upon NLR 1995 AC 477. ' While controverting the arguments raised by the learned counsel for the accused persons, Riaz Alam, Advocate, for the complainant submitted that prosecution, has proved its case through cogent and convincing evidence against accused persons beyond any reasonable doubt but the trial Court refrained to award the death sentence to both the accused Muhammad Asif and Shahid Anjum. Similarly it failed to appreciate the prosecution evidence to the extent of Muhammad Shoaib accused-respondent and acquitted him of the charge in an illegal fashion, therefore, the death sentence being normal penalty of murder be awarded to Muhammad Asif and Shahid Anjum accused-respondents and Muhammad Shoaib may also be convicted and sentenced in
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accordance with law. The learned counsel vehemently argued that Mirza Tufail, S.-I. Police is not a witness to prove the recoveries; therefore, his casual assertion cannot destroy the overall effect of the prosecution story. The learned counsel further contended that both the facts of calling out of Muhammad Shoaib and not coming out of Muhammad Shafique deceased from his house heard by Mst. Zahida Parveen are admitted on the part of defence. The learned counsel pointed out that in case the complainant believed that accused persons had kidnapped her son then she should have chased the accused persons instead of making efforts to find him out and asking for proclamation but at that time, she was not sure about the occurrence. The learned counsel while defending the objection about absence of signature of Zahida Parveen upon Exh.P.AA./1 Parcha Illat argued that the complainant not only signed the F.I.R. Exh.P.A. But she has also signed the Daily Register Exh.P.AA. Which proves that F.I.R. Was not recorded after the preliminary investigation. The learned counsel pointed out that Mst. Zahida Parveen deposed before the trial Court that when deceased left home he was wearing a watch which was later on recovered and got identified by her, therefore, non-mentioning of watch in the F.I.R. Does not create any doubt in the prosecution tale. The learned counsel further argued that complainant also testified that all three accused persons called out Muhammad Shafique, but no suggestion was put to the complainant by the defence about the absence of Shoaib accused. The learned counsel maintained that Qazi Abdul Latif P. W,4 has clearly stated that some unknown person had made a telephone call to him to ask the complainant to arrange Rupees 10 lac ransom for the liberty of the deceased. The learned counsel,. After referring to the certain portions of the prosecution evidence, submitted that all the recoveries have been proved by the prosecution through reliable and convincing evidence. The learned counsel craved that injuries Nos.1 to 8 mentioned in post-mortem report are by itself sufficient to prove the story of prosecution which shows multiple scratches and abrasion upon the body of the deceased. It also shows three injection marks in view of Lt. Cubital Fossa. The learned counsel further maintained that according to the opinion of Dr. Abdus Salam Exh.P.R. Death was possible due to Pentothal injections. The learned counsel pressed into service the submission that the report of Chemical Examiner does not negate the prosecution version because the Chemical Examiner has not reported that he could not find out the traces of Pentothal injections. The learned counsel while dealing with the statement of Dr. Fardous ,(D. W.5) argued that according to Dr. Muhammad Fardous Chaudhary, if Pentothal injection is injected without precautionary measures, death can occur, therefore, the prosecution version stands proved by the defence evidence. The learned counsel finally submitted that the accused persons have committed two offences, one kidnapping for ransom and the other murder of the deceased, therefore, taking into consideration the intention of the accused persons and having knowledge of the act committed, the accused persons are to be sentenced to death on two counts which is normal penalty of murder. In support of his contentions, the learned counsel cited the following authorities:-- (1) 1969 SCM R 558, (2) 1973 PCr.LJ 722, (3) PLD 1975 (AJ&K) 12, (4) PLD 1979 SC (AJ&K) 130, (5) 1985 PCr.LJ 391, (6) 1996 SCR 197-225, (7) 1996 PCr.LJ 1144, (8) 1997 PCr.LJ 331, (9) PLJ 2001 SC (AJ&K) 301, (10) 2001 PCr.LJ 524. ' Mr. Tayyab Gillani, the learned Assistant, Advocate-General, appearing on behalf of the State, has fully owned and supported the arguments advanced by the learned counsel for the complainant. ' I have given my dispassionate thought to the arguments addressed at 'Bar and very carefully examined the record. The prosecution case rests wholly on circumstantial evidence, therefore, the prosecution evidence has to be appraised in detail so that it may be ascertained as to whether the evidence is of such nature from which an inference of guilt can be drawn and the circumstances form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused persons and none else.
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' In support the prosecution examined Mst. Zahida Parveen (P.W.1), who testified that on 27-4-1997 at 10-00 a.m. Shoaib accused called out her son Muhammad Shafique but he did not go out. Thereafter, at 10-30 a.m. Muhammad Shafique went out but did not come back, therefore, she started locating him. Meanwhile, at about 3-00 p.m. Tariq Mehmood (P.W.2) and Muhammad Zaheer-ud-Din (P.W.3) told her that they saw Muhammad Shafique riding in a red Car No,5674-IDD with the accused persons going towards Bandral Toll Post. She strongly suspects that accused persons have kidnapped her son for ransom and have taken him away to some unknown place. She also testified that a written F.I.R. Exh.P.A. Lodged by her at Police Post Thothal, Mirpur, was duly signed by her. The aforesaid report Exh.P.AA. Was registered at Serial No,23 of Daily Register of Police Post at 1610 hours, which was also signed by her. The aforesaid report No,23 was sent by Ghulam Akbar S.-I. Police (P.W.19) to City Police Station Mirpur where a Case No,110 of 1997 was registered by Mirza Tufail Hussain S.-I./S.H.O. Police (P.W.20). ' The learned counsel for the accused-appellants laid great stress upon the point that Parcha Illat, Exh.P.AA./1 was not signed by Mst. Zahida Parveen, therefore, it loses its importance. The learned counsel further contended that the case was not registered on the basis of F.I.R. Exh.P.A. And furthermore Ghulam Akbar, S.-I. Police, who registered the F.I.R. In Daily Register, was also not produced before the trial Court, therefore, it has been proved that F.I.R. Was filed after the registration of case. I do not find much substance in this plea of the learned counsel because the F.I.R. Exh.P.A. Was lodged at Police Post Thothal, which was duly registered in Daily Register Exh.P.AA. Both the F.I.R. Exh.P.A. And Daily Register Exh.P.AA. Were signed by Mst. Zahid Parveen. The copy of Report No,23 Exh.P.AA./4 was sent to City Police Station for registration of case whereat a Case No,110 of 1997 was registered in the light of endorsement Exh.P.AA./5, which was duly proved by Mirza Tufail Hussain (P.W.20) S.H.O. City Police Station Mirpur, who has explained the reason during his statement before the trial Court that Parcha Illat Exh.P.AA./1 does not bear the signature of Mst. Zahida Parveen, complainant, because she did not appear before him. In this view of the matter, it cannot be said that the F.I.R. Was registered after commencing the investigation. ' At this stage, it will not be out of place to mention that a mere defect in recording the F.I.R. Or even recording of F.I.R. After the investigation, does not make the whole trial illegal. In this regard reference can be made to case titled as Ali Asghar Khan v. The State 1973 PCr.LJ (AJ&K) 722, wherein it has been opined at page 727 of the report in the following manner: "It is no doubt correct that when the F.I.R. Is entered after the police had started the investigation, the first information report is not admissible into evidence but this cannot mean that we can throw out the prosecution case on the score of the first information report having been entered after the start of the investigation by the police." ' The same view was affirmed in a case titled as Sajawal Khan v. The State PLD 1979 SC (AJ&K) 1301, wherein it has been laid down at page 136 of the report as under:-- "It is further contended that F.I.R. Was lodged after, start of the investigation and as such it loses its evidentiary value. According to the information given to the A.S.-I. Muhammad Akram, this argument is a fallacious one and cannot be accepted. F.I.R. Is never considered as A substantive piece of evidence and carries small evidence in it. Nevertheless, whatever was said to Muhammad Akram was exactly reproduced in F.I.R. In extenso by Faqir Muhammad P.W.1. Apart from it even if the F.I.R. Is excluded from consideration, it makes little difference as it is otherwise proved beyond, doubt that the accused had committed the offence exactly in the fashion in which the prosecution alleges." ' The above mentioned principles were reaffirmed in the case of Khalid Hussain and another v. The State and another PLD 1984 Sh.C. (AJ&K) 1, wherein it was held at page 8 of the report as under:- "The F.I.R. Was always used as corroborative piece of evidence. In this view of-the matter, even if it was accepted for the sake of argument that the F.I.R. Which was not a substantive piece of
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evidence, was prepared after the preliminaries, it would not affect the case of the prosecution so much so to record acquittal of the convict." ' The same view was also affirmed in a case titled as Mst. Rehmat Bibi v. Muhammad Najib and another 1997 PCr.LJ 331 (AJ&K), wherein it was observed at page 336 of the report that:-- "Even if an F.I.R. Is not proved the sentence and conviction of an accused person cannot be set aside, if the case is otherwise proved." ' The above mentioned authorities lay down the rule that the F.I.R is not a substantive piece of evidence and even if an F.I.R. Is recorded after commencing of formal investigation, it does not destroy the whole trial and it will not materially affect the main case of the prosecution. ' It was also agitated by the learned counsel for the accused-appellants that the writer of the F.I.R. Is not known according to the prosecution evidence, therefore, it cannot be considered as a genuine report. In support Debendra Chandra Sarkar and others' case AIR 1934 Cal. 458 was cited, wherein it was recorded by the learned Judge that if the writer of F.I.R. Is not examined it cannot be ascertained as to whether the writing represented a genuine version given by the…
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