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Petitioner: FATEH MUHAMMAD VS Respondent: Ties STATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Aamer Raza A. Khan Title: FATEH MUHAMMAD vs Ties STATE Case No.: Criminal Appeal No. 955 of 1978 Date of Judgment:1981-02-03 Reported As: PLD 1981 Lahore 403 Result: Appeal allowed
JUDGMENT
JUDGMENT JAVAID IQBAL,, J.-Fateh Muhammad son of Muhammad Khan, aged 40 years, armed with single- barrelled gun, has been convicted under section 302, P. P. C. For the murder of Muhammad Aslam, aged about 40 years, and vide judgment dated 10-10-1978 of the Additional Sessions Judge; Sheikhupura, was sentenced to death plus fine of Rs. 500 or in default to undergo six months' rigorous imprisonment. He was also ordered to pay compensation amounting to Rs. 15,000 to the heirs of the deceased or in default to further undergo six months' rigorous imprisonment. However, he was acquitted of the charge under section 307, P. P. C. As well as under section 404/148, P. P. C. His four co-accused, namely, Haq Nawaz, armed with single-barrelled gun, Khizar Hayat alias Muhammad Nawaz, also armed with single-barrelled gun, Ejaz and Muhammad Yusuf, both armed with revolvers, were acquitted. Fateh Muhammad convict has filed Criminal Appeal No. 955 of 1978 against his conviction and-sentence. There is also State appeal i. e. Criminal Appeal No. 452 of 1979 against the acquittal of the above-mentioned four co-accused. Similarly, there is private Criminal Revision No. 337 of 1979 against the acquittal of the above-mentioned four co-accused. Criminal Appeal No. 452 of 1979 and Criminal Revision No. 337 of 1979 have not been admitted for hearing but they are to be heard along with the main appeal as well as Murder Reference. All these matters are being taken up together and disposed of by this judgment. Haq Nawaz and Khizar Hayat, acquitted co-accused, are real brothers of the present appellant. Ejaz Ahmad, acquitted co-accused, is their Mamuzad (cousin) and Muhammad Yusuf, acquitted co-accused, is their Munshi. 2. The occurrence took place on 6-5-1975 at 6-30 a. m. Near a Rajbah in the area of village Pandori at a distance of 3J miles from Police Station, Narang, District Sheikhupura. F. 1. R. Exh. P. D. Was
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lodged by Shafqat A.I P. W. 5 Phuphizad (cousin) of the deceased at 7-15 a.m. On the same day and it was recorded by Zamir Ahmad S. I. P. W. 16. 3. The motive for crime, as stated in the F. I. R. Is that about 14 years before the present occurrence the deceased and Rehmat A.I son of Fateh Muhammad P. W. 4 had purchased some land situated in village Chandheer from one Nawabzadi Sajda Sultana and because of this there was a civil suit before the Senior Civil Judge, Sheikhupura between them and the accusedparty. There was also criminal complaint instituted by the present appellant against the deceased, Rehmat A.I son of Fateh Mubammad P. W. And others under section 468/420,/471/34, P. P. C. Pending before the Magistrate, Ferozewala. The plaint in the civil suit is Exh. P. L. At page 156 of the Paper Book whereas the Criminal complaint is Exh. P. C. At page 147 of the Paper Book. It is stated that on the day of occurrence there was Peshi of these cases and the deceased was proceeding to attend the Court when he chanced to meet the accused-party, who were also proceeding to attend the Court and consequently he was murdered by the accused party while on his way to the Court. 4. The prosecution has produced three eye-witnesses of the occurrence, namely, Rehmat A.I son of Chiragh P. W. 6, as unconnected person, Shafqat A.I P. W. 5, Phuphizad (cousin) of the deceased and Muhammad Ashraf P. W. 7. Brother of Rehmat A.I son of Fateh Muhammad P. W. 4. Iftikhar Elabi was named in the F. I. R. As an eye-witness but was not produced. 5. In the F. I. R. The occurrence is reported to have taken place in the following manner. On the fateful day Shafqat A.I P. W. 5, who had a commission shop in Narang Mandi was proceeding thereto through pathway of Rajbah Kala Shah Kaku for reaching 'the Bus Stand. Little ahead of him were the deceased and Muhammad Ashraf P. W, 7, also proceeding towards the Bus Stand. On this way, the appellant and the acquitted co accused, armed as described above, were sitting. As soon as the deceased and Muhammad Ashraf P. W. Reached near them. KhizAr Hayat, Ejaz Ahmad and Muhammad Yusuf, acquitted co-accused, raised a lalkara to the effect that they would not be spared. In the meantime Fateh Muhammad appellant as well as Haq Nawaz, acquitted co- accused, fired one shot each through their respective guns at the deceased which hit on his back side and the deceased fell on the ground. Shafqat A.I, P. W. Iftikhar Ellahi (not produced) and Rehmat A.I son of Chiragh r. W. 6, who were coming along just behind them advanced forward in - order -to-rescue the deceased. On seeing them Ejaz Ahmad and Muhammad Yusuf, acquitted co- accused, took out the revolvers from their dubs and Khizar Hayat, acquitted co-accused, picked up his gun and fired in the air warning them whosoever came forward, they would kill him. Then Fateh Muhammad appellant removed the belt of the licensed revolver from the waist of Muhammad Aslam deceased and Haq Nawaz, acquitted co-accused, removed the wrist watch from the wrist of Muhammad Aslam deceased. Thereafter, all of them decamped firing through the field of one Muhammad Bakhsh on the pathway of service Rajbah Muridke where they all set in a white coloured wagon which was standing for them and they drove away towards Koth Virkan. Muhammad Aslam deceased died on the spot. Leaving behind Muhammad Ashraf P. W. And Iftikhar Ellahi to guard the dead body, Shafqat A.I P. W. Proceeded to lodge the report. 6. The appellant was arrested on 15-4-1976 by Muhammad Ashraf D. S. P. P. W. 13 and it has been asserted that he had become absconder and was declared a proclaimed offender. Khizar Hayat, acquitted co-accused, was arrested on 7-5-1975 by Zamir Ahmad S. 1. P. W. 16. Haq Nawaz and Muhammad Yusuf, acquitted co-accused, were arrested by the same Police Officer on 10-5-1975. Ejaz Ahmad, acquitted co-accused, was arrested by the same Police officer on 20-5-1975. No crime-empty was picked up from the spot and no relevant recovery was made from the appellant or the acquitted co-accused. Similarly, neither the white wagon in which the accused party is stated to have escaped from the spot was recovered or taken into possession by the police nor the wrist watch as well as the revolver of the deceased taken away by the appellant and Haq Nawaz, acquitted co-accused, were recovered from them or taken into possession. Consequently the case
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of the prosecution is mainly based on the ocular testimony supported by the motive version, the medical evidence and the absconsion of the appellant. 7. The appellant, in his statement before the trial Court, denied having participated in the occurrence. The litigation between the parties, civil as well as criminal, was. Admitted. It was stated that the appellant had been falsely implicated due to enmity. Khizar Hayat, acquitted co-accused, advanced the plea of alibi and stated that he was not even present in the village on the day of occurrence. The others also denied having participated in the occurrence and stated that they had been falsely implicated due to enmity. 8. Dr. Abdul Mujib P. W. 15 conducted post-mortem examination on the dead body of the deceased at 6-00 p. m. On 6-5-1975 and found on his person a fire-arm entrance wound circular. In shape with six holes at the right ride of back upper part. There was blackening around the wound with two exit wounds on the left side of neck; another fire-arm entrance wound circular in shape with six holes 2" below the above injury on the right side of back. There was blackening present around and inside the wound ; three abrasions superficial on the left side of forehead ; two abrasions superficial on the right side of forehead ; one abrasion superficial on the nose ; another abrasion superficial on the nose tip . And still another abrasion superficial on the left side of face. The stomach contained four ounces of semi-digested rice. Small intestines contained digested food. Large intestines contained faecal matter. The bladder was empty. In his opinion, the first two .Injuries were caused by fire-arm and the rest were caused with blunt object and the fire-arm injuries were grievous whereas the remaining were simple. Death was caused by haemorrhage and shock as a result of the fire-arm injuries which were individually as well as collectively sufficient to cause death in the ordinary course of nature. The death was immediate and probable time between death and post-mortem examination was 12 to 14 hours. In the cross-examination he stated that in his opinion when there was blackening of the wounds, the distance between the mouth of the weapon in the hand of the assailant and the victim was usually 3 to 4 feet. He also stated that the two fire-arm injuries on the person of the deceased were the result of the shots from the same type of bai rel and both these injuries were exactly similar. He further stated that it was incorrect that the fire-arm injuries were given to the deceased from a distance of 1 or 1J feet. If the wad has been recovered from between the vest and the shirt, as stated by the police in the inquest report, then the shot could have been fired from a distance of 1 or 1 J feet. The same number of pellets struck the deceased from the two cartridges which has hit him. The area of wounds of two fire-arm injuries suggest that the shots were fired from almost the same distance. The location of each pellet in both the injuries suggests that the shots were fired from almost the same distance. The shape and size of fire-arm wounds suggest that the cartridges were of the same type and make. 9. We have heard learned counsel for the parties and carefully perused the record-with their assistance. First we shall discuss the motive evidence in the instant case. The prosecution version is that the deceased and Rehmat A.I son of Fateh Muhammad P. W. 4 had purchased some land in village Chandheer from one Nawabzadi Sajda Sultana about 1 --years before the present occurrence. It may be noted at this stage that apart from the deceased and Rehmat A.I son of Fateh Muhammad P. W. 4. Muhammad Ashraf P. W. T, who is brother of the aforesaid Rehmat A.I P. W. And who is eyewitness of this occurrence, was also one of the purchasers of the said land. Since the accused-party was interested in the land in question, the present Appellant, Khizar Hayat alias Muhammad Nawaz, acquitted co-accused, and others had filed a suit for specific performance in the civil Court on 26-3-1974 as against the deceased, Rehmat A.I P. W. 4, Muhammad Ashraf P. W. 7 and others which was pending in the Court of the Senior Civil Judge, Sheikhupura, at the time of the occurrence. The present appellant had also instituted a criminal complaint under section 468/420/471/34, P. P. C. As against the deceased, Rehmat A.I P. W. 4, Muhammad Ashraf P. W. 7 and
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others which was also pending at the time of the occurrence before the Magistrate Ferozewala. The prosecution case is that on the date of occurrence there was Peshi of the parties of the criminal case as is evident from Exh. P. T. At page 165 of the Paper Book. Exh. P. T. Is copy of the order passed by the Magistrate Ferozewala on 6-5-1975. It is stated in it that the case was called but Fateh Muhammad appellant (complainant) was absent and none of the accused in that case was present except Mr. Khalid Masood, Advocate of Nawabzadi Sajda Sultan, who stated that due to the murder of Muhammad Aslam deceased, the information of which he had received, none of the accused had appeared on that day. Thereupon, the next date of hearing was fixed on 20-5-1975. On 15-10-1974 a report was lodged by Rehmat A.I P. W. 4 at Police Station, Narang. This is Exh. P. B. At page 144 of the Paper Book. The report was signed by Rehmat A.I P. W. 4 and was also signed by the deceased, who had verified its contents. This report is to the effect that Rehmat A.I P. W. 4 accompanied by the deceased went to Police Station Narang and Rebmat A.I P. W. 4 got the report lodged that they had purchased some land and that the appellant as well as Khizar Hayat alias Muhammad Nawaz, acquitted co-accused, wanted to purchase the same through fraud. When the appellant etc. Came to know about the sale of the said land to the deceased etc., they instituted a false civil suit in the Court of the Senior Civil Judge, Sheikhupura and a criminal complaint in the Court of the Magistrate, Ferozewala against them. Therefore, it is stated in the report that Rehmat A.I P. W. 4 has come to know through a reliable source that the appellant, his brothers Haque Nawaz and Khizar Hayat alias Muhammad Nawaz, acquitted co-accused as well as Nisar Ahmad and Muhammad Malik were preparing again to murder the deceased as well as Rehmat A.I P. W. 4 so that after murdering them they might succeed in their civil suit due to the absence of the deceased and Rehmat A.I P. W. 4 and thus acquire the disputed land. They have prepared their scheme and have despatched their plan in order to acquire the services of professional murderers for this purpose so that at the time of occurrence they should make out a case for their alibi and thus save themselves from the allegation of murder. It was stated that therefore, Rehmat A.I P. W. 4 and the deceased, in the instant case, had an apprehension that the accused party would murder them in order to cause injury to their life and property and for this purpose had prepared a complete plan. It was further stated that the leader of the accused patty their adviser and legal protector was Nisar Ahmad, who was member of the National Assembly of Pakistan from Tebsil Ferozewala, because in the forthcoming elections Rehmat A.I P. W. 4 and Muhammad Aslarn deceased were a hindrance in the way of this Nisar Ahmad. Consequently, the accused party wanted to finish them through preparing a scheme for their murder. This Nisar Ahmad was closely related to the appellant etc. Rehmat A.I P. W. 4 further stated that after the recording of the report in the Roznamcha, he should be given a copy thereof so that he could start legal proceedings against the accused party. But in case he or Muhammad Aslam deceased or any member of their family was involved in any kind of accident, then its responsibility would be on the accused party. As it has been pointed out earlier, this report is stated to be signed by Rehmat A.I P. W. 4. Thereafter, there is one sentence to the effect that on inquiry Muhammad Aslam deceased supported each and every word of Rehmat A.I P. W. 4. This sentence is followed by the signatures of Muhammad Aslam deceased. This report was recorded in the Roznamcha and a copy thereof was given to Rehmat A.I P. W. 4. Thereafter, it was referred to Ch. Saeed Ahmad A. S. 1. Who was expected to start investigation about the same. There is nothing on the record to show that any further proceedings were taken by the police on this report. The case of the prosecution is that in the light of Exb. P. B. And the motive as stated in the F. 1. R., the appellant and his companions had a motive to murder the deceased, in the instant case, and it was not that the complainant side had any enmity with them. It is stated that the complainant-side had no previous enmity with the accused party whereas the accused-party had motive to get rid of them only because they had purchased some land in which the accused party was interested and that in order to acquire the same they had
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instituted civil as well as criminal proceedings as against the complainant side, Learned counse lfor the complainant party vehemently argued that in the light of this evidence on the record it was clear that there was no background of previous enmity between the parties and that it was only the accused party which had a motive to murder the deceased or Rehmat A.I P. W. 4, who, among others, were purchasers of the disputed land. The case of the complainant-party is that Exh. P. B. Must be read along with F. 1. R., in the instant case, and it should be given the same sanctity as that of a dying declaration, because its contents were endorsed and supported by the deceased Muhammad Aslam, who had signed it. On the other hand, the arguments of learned counsel for the appellant are as follows: It is submitted that if Rehmat A.I P. W. 4 along with the deceased had got Exh. P. B. Recorded on 15-10- 19L74 and as it has been stated by Shafqat A.I P. W. 5, who lodged the F. I. R. That he knew about the recording of Exh. P. B., then he should have mentioned Exh. P. B. In the F. 1. R. The case of the defence is that in the F.1. R. There is no mention of the earlier report Exh. P. B. Similarly, there is no mention of Exh. P. B. In the statement of Rehmat A.I P. W. 4 recorded under section 161, Cr. P. C. And placed on record as Exh. D. A. At pages 165/166 of the Paper Book. Learned counsel for the appellant, therefore, argued that it was a spurious document made up subsequently by the police under the influence of the complainant party in order to strengthen the prosecution case as against the accused party. It was pointed out that Abdul Haque H. C. P. W. 3 was produced along with Roznamcha register, who had recorded the report of Rehmat A.I P. W. 4 which Muhammad Aslam deceased had confirmed and signed along with Rehmat A.I P. W. 4. He stated in the cross-examination that Roznamcha register, which- he had brought, was not on printed register but it is on white papers on which lines have been drawn. The Roznamcha is in loose sheets which are tagged. The pages are not numbered and in the Roznamcha register there is no certificate showing the number of pages in the Roznamcha. He stated that it was not possible to replace a sheet of paper of Roznamcha by another sheet of paper. He did not ask Rehmat A.I P. W. 4 or Muhammad Aslam deceased regarding the secret sources from which they had received the information of the plan to murder them. He only recorded the report and sent the copy to A. S. I. For further action. So far as he remembered proceedings were taken on this report under section 107/150, Cr. P. C. By the A. S. I. The proceedings were taken against both the parties. He did not remember as to after how much time these proceedings were taken as he was transferred in the month of November, 1974, from Police Station, Narang to Police Station, Sharaqpur. He could not tell whether the proceedings were taken before or after his transfer. The Roznamcha register was up to 30-10-1974 and till that date there was no entry in the Roznamcha register regarding the. Taking of proceedings under section 107/150, Cr. P. C. He did not know as to why he was transferred in November, 1974. It was then argued by learned counsel for the appellant that Saeed Ahmad A. S. I. To whom Exh. P. B. Had been sent for taking appropriate proceedings of investigation was not produced by the prosecution so as to confirm as to whether or not any proceedings under section 107/ 150, Cr. P. C. Were taken on Exh. P. B. There is also no evidence on the record that Rehmat A.I P. W. 4, who took a copy of Exh. P. B. In order to himself take legal proceedings against the accused-party, did take any such proceedings. It was next submitted that Exh. P. B. Could not be considered as a dying declaration of Muhammad Aslam deceased as it had not been recorded by him. It was stated to be recorded by Rehmat A.I P. W. 4 and Muhammad Aslam deceased is stated to have signed it, because he confirmed its contents. It was then submitted that in Exh. P. B. There were names of different persons than those who are implicated in the present murder case. Similarly, there was also mention of the hiring of professional murderers for doing the job by the accused-party. Learned counsel for the appellant further argued that if Exh. P. B. Was to be considered as genuine, then it clearly indicated that there was previous enmity existing between the parties because of elections. It is stated in Exh. P. B. That Nisar Ahmad, who was closely related to the a pellant etc., had
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considered Muhammad Aslam deceased and Rehmat A.I P. V 4 as a hindrance for him in the forthcoming elections. Thus, the argument of learned counsel for the appellant is that it was not correct to say that only the accused party had a motive to murder the deceased. But the correct position was that there existed previous enmity between the accused and the complainant parties. The trial Judge has arrived at the conclusion that Exh. P. B. Was proved and to his mind it did not appear to be fictitious. Although it was argued before him that it should be treated as dying declaration as it narrated the background of the facts which resulted in the murder of Muhammad Aslam deceased he did not accord it the status of the dying declaration because Exh. P. B. Was a statement of Rehmat A.I P. W. 4, who was still alive and Muhammad Aslam deceased had only confirmed what Rehmat A.I P. W. 4 had stated. Thus, Exh. P. B. Was not based on the statement of Muhammad Aslam deceased. The trial Judge also held that no inquiry was held by the police to ascertain the truthfulness of the allegations contained in Exh. P. B. Nisar Ahmad and Muhammad Malik were named in the report as collaborators but they were not named in the E. 1. R. Though according to the report Nisar Ahmad Ex-M. N. A. Was the ring-leader of the party. The trial Judge has observed at page 117 of the Paper Book, it was submitted, that Exh. P. B. Proved the enmity between the complainant party and the accused party and that it further showed that there was a political tussle between the accused party on one side and the complainant-party on the other. It was argued that if the accused party was capable of arranging for professional murderers, then there was no reason that having knowledge of the report they should go themselves to commit the murder. The findings of the trial Judge are that the report Exh. P. B. Was only evidence of the motive and the weight to be attached to it depended on the other circumstances of the case. The mere fact that three of the members of the accused party including the appellant, who were real brothers, were named in Exh. P. B. Itself cannot be considered as a ground for believing the ocular version as against the three of them. It is further observed that Exh. P. B. Was evidence of the circumstances which existed at the time of the registration of the said report, though no investigation or inquiry was conducted regarding the truthfulness or otherwise of the allegations contained in the report. We have carefully considered the arguments of learned counsel for both the sides. In our view Exh. P. B. Has rightly not been given the status of a dying declaration by the trial Court. We do not consider that it is necessary to determine the question as to whether it stood proved ' or was fictitious having been placed subsequently on the record in order to strengthen the case of the prosecution. However, since Exh. P. B. Is owned by the prosecution at the trial stage by such witnesses as Rehmat A.I P. W. 4, Shafqat A.I P. W. 5 and Muhammad Ashraf P. W. 7, we agree with the finding of the learned trial Judge that even if this report was to be considered as genuine, it proves the pre-existing enmity between the complainant party and the accused party as it indicates that the two factions were involved in a political tussle. In the light of Exh. P. B. Asserted by the prosecution witnesses as genuine, we do not agree with learned counsel for the complainant party that only the appellant and his companions had a motive to murder the deceased and that the complainant side bad no enmity or grievance as against the accused party. In our considered opinion, it was not only the purchase of some land on the part of the complainant side which had made the accused side start civil and criminal proceedings as against them, but the background of previous enmity also indicates that it was due to political rivalry. We have already pointed out that there are no relevant recoveries in the instant case which could connect the appellant or the acquitted co-accused directly with the commission of crime and serve the purpose of corroborative evidence. We are, therefore, left with the ocular testimony, in the instant case, the medical evidence and the motive version. We have already given our opinion so far as the motive version is concerned. We are convinced in our mind that there existed enmity between the complainant and the accused parties and since this is the position, the ocular
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testimony must a require a close scrutiny. So far as the medical evidence is concerned, Dr. Abdul Mujib P. W. Had stated that the death was caused by two fire-arm injuries at the back…
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