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Petitioner: THE STATE VS Respondent: MUHAMMAD AKBAR and others
Court Name: Lahore High Court Judge(s): Tanvir Bashir Ansari, Muhammad Akhtar Shabbir Title: THE STATE vs MUHAMMAD AKBAR and others Case No.: Criminal Appeal Special. Court Terrorist No,50 of 1991 Date of Judgment:2002-04-19 Reported As: 2002 YLR 1987 Result: Appeal accepted
JUDGMENT
JUDGMENT ' MUHAMMAD AKHTAR SHABBIR, J.---The respondents, namely, Muhammad Akbar, Muhammad Rafiq, Nazir Ahmad, Muhammad Tufail, Abdul Haq, Muhammad Riaz, Irshad alias Shada, Ghulam Yasin and Sardar Muhammad were tried by the learned Judge, Special Court constituted under the Suppression of Terrorist Activities Act, 1975, Bahawalpur Division, Bahawalpur; on a charge under sections 302/382/148/149/ 109/411, P.P.C. Vide judgment, dated 23-11-101. The learned trial Court acquitted all the accused/respondents from the charge. 2. Aggrieved by the aforesaid acquittal of the accused/respondents, the State has filed the instant appeal. During the pendency .Of this appeal, respondents Nos. 8 and 9 died, therefore, the appeal qua them stands abated: 3. Briefly stated- the facts of the prosecution case as narrated in the F.I.R. Exh. P.A. Lodged by . Munir Husain/ complainant P: W.1, are that on 4-9-1989 at about 8-00 a.m. The complainant P.W.1 alongwith his brothers. Nazir Ahmad P.W.2, Muhammad Jamil, his paternal uncle Muhammad Sadiq, maternal. Nephew Muhammad Arshad alias Ali- Sher and paternal cousin Ghafoor P.W.3 was going to Rahimyar Khan to see their relatives detained in District Jail Rahimyar Khan through Bus No,4777/LEV, owned by the complainant. Master Bashir Ahmad/school teacher (brother of the complainant) his son Amjad Ali and Akhtar Ali/both students were also going to High School Bismillahpur by the same bus. The passengers also used to board and alight the bus. When at about 8-30 a.m. The bus reached about two squares ahead Bismillahpur Dispensary, Akbar son of Rafiq armed with Kalashnikov, Rafiq sonof Barkat Ali armed with 7-mm rifle, Abdul Haq son of Nazir Ahmad armed with rifle, Muhammad Tufail son of Nazir armed with rifle. Riaz son of Nazir armed with rifle. Nazir Ahmad son of Abdul Haq armed with. 12 bore gun, alongwith two sons of Allah Ditta,
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Lambardar Chak No,4, Police Station , Duniyapur, District Multan, of whom one armed with Kalashnikov and the other armed with rifle emerged from sugarcane crop raising Lalkaras. Akbar the complainant party that as they had murdered his paternal uncle, therefore, they would not be spared. Akbar and-one son of Allah Ditta aforesaid came in front of the bus. -fired from their respective Kalashnikoves, hittint Chaudhry Muhammad Sadiq and Master Bashir Ahmad, who were ,sitting on the front seat of the bus. The other accused/assailants also started firing, whereupon the complainant along with Nazir Ahmad, Akhar Ali and Ghafoor Ahmad alighted. From the bus and embushed themselves in the nearby cotton crop field. . Jamil also alighted from the bus and rushed towards cotton crop field to save his life. He was armed with 32 bore licensed revolver, followed by. Akbar accused, who was firing upon him with his Kalashnikov, upon which Jamil took out his licensed revolver and turned towards Akbar for firing on him, Akbar tired at him. Nazir Ahmad/accused also, fired at Jamil, who fell down. The other accused entered the bus. All the accused continued firing and raising Lalkaras. The driver as well as the conductor and other passengers deboarded the bus at the very first fire shot by the accused and ran towards, western side. After having felt satisfied that Sadiq Ali, Master Bashir Ahmad, Amjad Ali, Muhammad Arshad alias Ali Sher and Muhammad Jamil 'had died, all the accused proceeded towards northern side. While leaving the accused also took the licensed revolver of Muhammad Jamil deceased with them. After departure of the accused, the complainant entered the bus and found the four injured to have expired. The accused persons also took the licensed revolvers of Master Bashir Ahmad (deceased) with them. As to the motive', it was alleged in the F.I.R. That a brother of Muhammad Rafiq/accused was murdered and a case in that respect was registered and in order to take revenge thereof, the accused had committed the murder of the complainant's brothers Bashir Ahmad and Muhammad Jamil and his other close relatives. It was also alleged that the accused persons had passed the night with Sardar Patwari of Chak No,42/P. While leaving the P.Ws. At the spot, the complainant went to report the matter. 4. After having recorded the F.I.R. Exh.P.A. At the instance of complainant, the Inspector/S.H.O. Muhammad Hussain P.W.17 proceeded to the place of occurrence, prepared the inquest reports and injury statements of Muhammad Sadiq, Amjad Ali, Muhammad Jamil, Muhammad Arshad Ali and Bashir Ahmad, the deceased persons. He took the blood P-7 from the place where the dead body of Arshad Ali was lying in the bus, sealed the same into a parcel and took the same into possession vide memo. Exh.P.E. He also obtained blood P-8 from the bus, where the dead body of Amjad Ali was lying, made the same into a sealed parcel and took the same into possession vide memo. Exh. P.F. He secured blood-stained earth from the cotton field, where the dead body of Muhammad Jamil was lying, made the same into a sealed parcel and took the same into possession vide memo. Exh.P.G. He also secured blood-stained earth from the bus where the dead body of Muhammad Sadiq was lying, made the same into a sealed parcel and took it into possession vide, memo. Exh.P.C. Blood was also taken from the bus where the dead body of Bashir Ahmad was lying, made the same into a sealed parcel , and took it into possession vide memo. Exh.P.D. He also secured 10 empties 'of Kalashnikov P-2/1-10 from the bus, 3 empties cartridges P- 3/1-3 of .12 bore .Near the Canal Patri and 3 other empties of .12 bore from the bus P-4/1-3, made the same into a sealed parcel and took the same into possessions vide memo. Exh. P.B. Bus No,4777 was also taken into possession from the spot vide memo. Exh.P.J. The pieces of glasses of the bus were also taken into possession from the place of occurrence vide memo. Exh: P.H. The dead bodies of the deceased were sent to the hospital for post-" mortem examination. The Investigating Officer recorded the statements of the P.Ws. He took the last wain clothes of Muhammad Jamil deceased consisting of blood-stairied Qameez P-19, Shalwar P-20, blood-stained Saluka P-21 into possession from' Fazal Hussain " Constable P.W.5 vide memo. Exh.P.N. He also took into possession the last worn clothes of Amjad All deceased, consisting' of bloqd-stained Qameez P.15, blood-stained Shalwar
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p.16, and Banyan P.17 with a .Sealed parcel of bullets from the aforesaid constable vide memo. Exh.P.M. Blood-stained Qameez P.11, blood-stained Shawlar P.12 Banyan P....13 and one sealed parcel P.14 were also taken into possession vide memo. Exh. P.L. On 5-9-1989, bloodstained clothes of Muhammad Sadiq, i,e, Qanieez P-22, Chaddar P-23 and Saluka P-24 with a sealed parcel containing bullets (P-25) were taken into possession vide memo. Exh.P.O..On the same day, the Investigating Officer took into possession from aforesaid constable 'the last worn clothes of Bashir Ahmad consisting of blood-stained QaMeez P.L.26, blood-stained Shalwar P-27, blood-stained Saluka P-28 and a sealed parcel containing pellets P-29, vide memo. Exh. P.Q. The complainant also produced Licence No,144/89 of Jamil deceased and that of Bahsir deceased bearing No,268/85 before the witness investigating Officer, which were taken into possession by him. He arrested the accused persons/respondents. Muhammad Akbar accused, while under custody, led to the recovery of Klashnikov P-31 alongwith 20 live rounds P-31/1-20 from his house, which were made into a sealed parcel and taken into possession through memo. Exh.P.R. The Investigating Officer then prepared site plan of the place of occurrence Exh.P.R./1 with his drawings and notes thereon with his own handwriting. He also prepared the Khaka vide Exh.P.R./2. On the same day, accused Irshad alias Shada led to the recovery of Klashnikov P-32 alongwith 40 live rounds P-33/1- 40, which were taken into possession vide memo. Exh.P.S. And sealed into a parcel. The Investigating Officer also prepared the site plan of the place of recovery Exh. P.S./1 and recorded all the drawing and notes thereon. He also prepared the sketch plan of Klashnikov Exh.P.S/2. On 23-9- 1989, Abdul Haq accused got recovered revolver P-34 alongwith 14 live rounds P35/1-14, which were taken into possession vide memo. Exh.P.T. Rough site plan Exh.P.T./1 in this respect was also prepared. On the same day, revolver P-38 alongwith 2 live rounds and 3 missed P-39/1-5 were also recovered at the instance of Riaz Ahmad accused and taken into possessiOn through memoo. Exh.P.V, and Exh. P.V./1 was rough site plan of the place of recovery thereof. On the same day, Abdul Haq accused led to the recovery of gun P-36 alongwith 2 cartridges P-37/1-2 from his house, which were sealed into a parcel and taken into possession through memo. Exh.P.U. And Exh. P.U./1 was the site plan of the place of recovery thereof, while Exh.P.U./2 was the sketch of gun. On 27-9-1989, Muhammad Rafiq accused led to the recovery of rifle P-44 alongwith its licence Exh.P-46 and four rounds, one of which was missed (P-45/1-4), which articles were sealed into parcel and taken into possession vide memo. Exh.P.Y Exh.P.Y./1 was the site plan of the place of recovery thereof, while Exh.P.Y/2 was the sketch of rifle. On 27-9-1989, Nazir Ahmad accused led to the recovery of gun P- 42 alongwith two missed cartridges P-43/1-2 and Licence No,187, P-43/1 from his house, which were sealed into a parcel and taken into possession through memo. Exh. P.H. Site plan of the place of recovery thereof was also prepared, with all the drawings and notes thereon with the handwriting of the Investigating Officer. The witness also prepared the sketch of the gun Exh.P.H.72. On the same day, Muhammad Tufail accused led to the recovery of rifle P-40 alongwith 10 missed rounds P-41/1- 10 from his house, which were taken into possession vide memo. Exh.P.W. Rough site plan Exh. P.W./1 with respect to the place of recovery was also prepared and Exh.P.W./2 was the sketch of P-40. On 3-10-1989, Ghulam Yasin accused got recovered rifle P-47 alongwith two rounds P-48/1-2, of which one was live and the other was missed, from the Ihata of Muhammad Akbar accused. All these articles were made into a sealed parcel and taken into possession vide memo. Exh.P.Z. Exh. P.Z/1 was the site plan of the place of recovery thereof, while Exh.P.Z/2 was the sketch of P47. On 12-9- 1989, the Patwari Halqa produced before the witness/Investigating Officer site plan Exh.P.K. And P.K./1 of the place of occurrence. Notes with red ink were made by the witness. After completing of investigation, he (the Investigating Officer) challaned the accused and submitted repait under section 173, Cr.P.C. Before the Court. 5. On 5-9-1989, Dr. Muhammad Arif Nadeem, M.0./P.W.11 conducted postmortem examination on the dead body of Bashir Ahmad deceased and found eleven fire-arm injuries on his person. In the
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opinion ofsthe Doctor, injuries Nos. 2, 3, 4, 5, 7 and 9 individually and all the injuries collectively were sufficient to cause death in the ordinary course of nature due to haemorrhage and shock and injuries vital organs (both lungs, liver spleen, both kidneys, descending abdominal aorta. All the injuries were ante-mortem caused by fire-arm weapon. Probable duration between injuries and death was within minutes, while duration between death and post-mortem was within 36 hours. 6. On 4-9-1989, Dr: Muhammad Tariq Javed Akhtar, M.0./P.W.12 conducted autopsy on the dead body of Arshad Ali and found nine injuries on his person. In the opinion of the Doctor, injuries Nos. 1 and 5 were sufficient to cause death in the ordinary course of nature due to haemorrhage and shock and also the vital organ (brain). All the injuries were ante-mortem caused by fire-arm weapon. Probable duration between injuries and death was within minutes and between death and post-mortem about 12 bours. 7. On 4-9-1989, Dr. Muhammad Sajid, M.O. /P. W.13 conducted post-mortem examination on the dead body of Bashir Ahmad deceased and found seven injuries on his person. In the opinion of the Doctor, injury No,1 individually and all the injuries collectively were sufficient to cause death in the ordinary course of nature due to injury to brain matter, haemorrhage and shock. All the injuries were ante-mortem caused by fire-arm weapon. The probable duration between injuries and death was within minutes and between death and post-mortem was within twelve hours. 8. On 4-9-1989, Dr. Razi-ud-Din Siddiqui, M.0./P.W.14, conducted postmortem examination on the dead body of Muhammad Jamil deceased and found two injuries on his person. In the opinion of the Doctor, both the injuries were sufficient to cause death in ordinary course of nature due to shock and haemorrhage (crush enury hearth). Both the injuries were ante-mortem caused by .Fire-arm. Probable time between injuries and death was immediate and between death and post- mortem within eight hours. 9. On 5-9-1989,- Dr. Abdul Shakoor Anjum, M.0./P.W.15 conducted autopsy on the dead body of Muhammad Sadiq and found eleven injuries on his person. In' the opinion of the Doctor, injuries Nos. 1, 2, 3, 4, 5, and 7 were caused by fire-arm associate ith other injuries, caused shc and haemorrhage, which were suffiyent to cause death in ordinary course of nature. These injuries were -ante-morteni. Probable time between injuries and death was about one hour and betWeen death and post-mortem was about 23 hours. , 10. In or to substantiate its version at the trial, the prosecution examined as many as eleven P. Ws. Munir Hussain, complainant P.W.1, Nazir Ahmad, brother of the complainant P.W.2, Ghafoor Hussain P.W.3, Ihsanullah, Patwari P.W.4, Fazal Hussain, Constable P.W.5, Nazir Ahmad son of Faqir Muhammad P.W.6, 'Muhammad Aslam P.W.7, Abdul Hameed. P.W.8 (Constable), Abdul Hameed, S.I./P.W.9, who also investigated the case and arrested Sardar Muhammad accused and recovered 7 mm rifle from him, Zahid Hussain constable P.W.10, Dr. Muhammad Arif Nadeem, M.0./P.W.11, Dr. Muhammad Tariq Javed Akhtar, M.O./P.W.12, Dr. Muhammad Sajid, M.0./P.W.13, Dr. Razi-ud-Din, M.0./P.W.14, Dr. Abdul Shakoor Anjum, M.O./P.W.15, Nabi Ahmad P.W.16 and. Muhammad Hussain, Inspector/S.H.O. P.W.17. The prosecution also tendered in evidence the report of Serologist Exh. P.H.H., report of Technical Services Exh. P.K.K., certified copies of orders of the High Court Exh. P.L.L., Exh. P.M.M., Exh. P.N.N. And Exh." P.0.0. 11. All the accused respondents in their statements under section 342, Cr.P.C. Denied the allegations levelled by the prosecution and regarded their involvement.As false one by the police in connivance with Munir Hussain/ complainant and as to the depositions of the P.Ws., the accused/respondents stated that as the complainant party had committed the murder of Nawaz, a close relative of the accused/respondents, so the P.Ws. Deposed against them. All the accused/respondents made their somewhat similar statements under section 340(2), Cr.P.C. In their defence, stating that the complainant party had committed the murder of Muhammad Nawaz, their close relative and on their refusal to have a compromise with them,. The instant false
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case had been planted against them. Sardar Muhammad accused/respondent stated as he helped Muhammad Rafiq etc. In Natvaz's murder case, therefore, he had been falsely. Involved in this case. The accused/respondents also produced 12 D. Ws. In their defence, including their own statements on oath. Zia Ahmad Bukhari, D.S.P./D.W. I partly investigated the case and during his investigation, he found Yasin (since dead) and Sardar Muhammad (since dead), accused respondents as innocent. Jamal Din D.W.2 stated that five persons who came %across the bus in question came on a jeep and . Stopped the bus and looted the bus and the persons who resisted them were done to death by the dacoits and that after looting the bus, all the five persons went away in their jeep from the place of incident. He, however, admitted in cross-examination that he had relations with Muhammad Nawaz (brother of Rafiq accused) who was murdered and that the said case was still pending against the complainant party in the Court. Noor Muhammad D.W.3, while making somewhat similar statement added that the accused/respondents were not there at the spot nor they had murdered any person. He, however, admitted his conviction and death sentence in a murder case and his release by the Supreme Court on account of composition of offence with the complainant party. He further admitted that he had not seen Jamal Din D.W. Mushtaq Ahmad, D.W.6 stated that he appeared before Zia Ahmad Bukhari, D.S.P. And upon his statement, Yasin (since dead)/accused was declared innocent by the said D.S.P. Umar Hayat, D.W.7 stated that Irshad accused/respondent remained present in Chak No,233/WBH alongwith him whole the day long and also passed his night with him and that he appeared before Inspector Police in his defence. ,42, The 'trial Court: after assessing the ' of both the sides, acquitted the accused/respondents giving them benefit of doubt. This judgment of the trial Court has been challenged by the Public Prosecutor through the instant appeal. 13. The learned Law Officer and the learned counsel for the complainant contended that the prosecution has produced ocular, medical and recovery evidence to establish the guilt of accused/respondents and that the motive is admitted by the accused persons. There was no treason for acquittal of the accused. They had committed brutal act by butchering five innocent persons. They further contended that there are no contradictions or material discrepancies in the statements of the P.Ws. All the eye-witnesses deposed in line with each other narrating the prosecution story. On the other hand, the learned defence counsel vehemently opposed the arguments of the learned Law Officer and the learned counsel for the complainant and supported the impugned judgment of acquittal of the accused/respondents passed by the trial Court. 14. We have considered the arguments of the learned counsel for the parties anxiously and perused the record. 15. The complainant Munir Hussain, P.W.1 stated that, on the day of occurrence, he was travelling in Bus No, LEV 4777 towards Rahimyar Khan alongwith Nazir, Muhammad Sadiq, Muhammad. Jamil, Arshad Ali alias Ali Sher and Muhammad Ghafoor son, of Muhammad Sadiq residents of their village. They were all relatives and going to see their relatives who were in jail facing the trial of a murder case. He further deposed that Master Bashir, his brother a school teacher and Amjad Ali and Muhammad Akhtar, who were students of High School. Bismillahpur were also going with them in the :same bus. When this unfortunate bus reached two square ahead from hospital Bismillahpur, the accused persons, namely, Muhammad Akbar armed with Klashnikov, . Muhammad Rafiq with 7-mm Title, Abdul Haq with rifle .12 bore, Muhammad Riaz with rifle, Muhammad Tufail with rifle, Irshad with Klashnikov, Yasin with rifle and Nazir armed with .12 bore rifle appeared from the cotton fields. Muhammad Akbar and Irshad alias Shada opened firing with their respective weapons in front of the bus. Muhammad Akbar and his co-accused raised Lalkara against them. Muhammad Akbar said loudly that you had murdered my uncle, therefore, you alongwith your companions would not escort free and you would also face death with us. Muhammad Akbar and Irshad alias
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Shada 'made brust with their respective weapons, which hit Master Bashir and Muhammad Sadiq, who were sitting in front of the bus. The other accused persons had also made firing at the spot. The complainant, Nazir, Akhtar and Ghafoor escaped in the adjoining cotton field. Jamil also ran away but Akbar and Nazir both followed and fired at him, who after receiving the injuries fell down and died. Thereafter, all the accused went inside the bus and they fired at Amjad, Bashir,' Arshad alias Ali Sher and Muhammad Sadiq in the bus. All the injured succumbed to the injuries. After the departure' of the accused persons, .P.W.1 entered the bus and saw all the four persons dead and the licensed revolver of Master Bashir missing,-which the accused had taken. With them. He also t'ound Jamil deceased lying dead ,about 1-1/2 Acre away in the cotton field. The accused persons had also taken his licensed revolver. As to the motive, the complainant stated that about 5 months prior to the occurrence;, his relative murdered uncle of Akbar accused and brother of Muhammad Rafiq accused and in order to take revenge, the accused persons had committed the murder of five persons. 16. The above statement of Munir Hussain complainant P.W.1 was corroborated on material points by P.W.2 Nazir and P.W.3 Ghafoot who had also seen the occurrence. 17.. The evidence with respect to recoveries consists of Ghafoor Hussain, P.W.3, Muhammad Aslam, P.W.7, Nabi Ahmad P.W.16, Khadim Husain (given up P.W.) and Muhammad Hussain, Inspector/S.H.O. Investigating Officer P.W.17. The recoveries of crime empties of different kinds of weapong,- blood- stained earth and blood from the spot were effected.. By the Investigating Officer, and were attested by Ghafoor Hussain P.W:3, while the recoveries with regard to the crime weapons, i,e, Klashnikoves, revolvers, Bandooq alongwith rounds cartridges etc. On the, pointation of the accused/respondents were effected by the Investigating Officer, P.W.17 and attested by Muhammad Aslam P.W.7. Although Nabi Ahmad P.W.16 recovery witness was declared hostile but his hostility will not cause any damage to the prosecution case. The recoveries have been proved on record by the prosecution by producing the Investigating Officer P.W.17, Ghafoor Hussain and Muhammad Aslam P.Ws. The trial Court has disbelieved the recoveries on the ground that violation of section 103, Cr.P.C. Had been made by the police. We are afraid that P.W.3 Ghafoor Hussain was also travelling in the same bus and was also an eye-witness of the occurrence, while P.W.7 Muhammad Aslam, the other witness of recoveries, is also related to both the parties and there is nothing on record that he was in any way inimical towards the accused persons/respondents, whereas Muhammad Hussain, Inspector P.W.17 is a public functionary having no animosity against the accused/respondents. Thus, these P. Ws. Were independent witnesses and their testimony could not be brushed aside. The trial Court has not applied its judicial mind to the statements of these P.Ws. Besides this, there is yet another aspect of the matter and that is that as per report of the Fire Arms Expert (Exh.P.K.K.) the crime empties recovered from the spot were found to be matched and fired from the respective crime weapons recovered at the instance of the accused/respondents. Thus, the learned trial Court was wrong in disbelieving the recoveries. We, therefore, hold that the prosecution has been able to prove the recoveries through its evidence. 18. All the five deceased person, namely, Muhammad Sadiq, Arshad Ali 'alias Ali Sher, Master Bashir Ahmad, Muhammad Jamil and Amjad Ali died as a result of sustaining fire-arm injuries at the hands of the accused persons, who were identified by the complainant Munir Hussain P.W.1, Nair Ahmad P.W.2 and Ghafoor Hussain P.W.3. The post-mortem examination of these deceased was conducted by five Doctors, namely, Dr. Muhammad Arif Nadeem P.W.11, Dr. Muhammad Tariq Javed Akhtar P.W.12, Dr. Muhammad Sajid P.W.13, Dr. Razi-ud-Din Siddiq P.W.14 and Dr. Abdul Shakoor Anjum P.W.15 separately, who appeared in Court and testified their postmortem examination reports and were of the opinion that cause of death of the deceased persons was the result of fire- arm injuries. No suggestion was put to the Doctors by the defence counsel that cause of death of all or any of the deceased persons was other than fire-arm injuries. The defence has not been able
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to establish on the record that if the accused/respondents had not assaulted or made 'firing on the deceased, then who were the persons who were responsible for their murders. The only stand of the defence that it was a dacoity case has not been established on the record by producing sufficient and convincing evidence. The medical evidence is in consonance with the ocular account furnished by the eye-witnesses. 19. The accused/respondents had themselves taken the stand that the complainant party had been challaned in the murder of Muhammad Nawaz, the uncle of Akbar and real brother of Muhammad Rafiq, accused persons. The…
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