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Petitioner: MUHAMMAD ASHRAF VS Respondent: JAVED and another
Court Name: Peshawar High Court Judge(s): Yahya Afridi, Khalid Mehmood Title: MUHAMMAD ASHRAF vs JAVED and another Case No.:Criminal Appeals Nos.134 to 137, M.R. No,12, and Criminal Revision No,36 of
JUDGMENT
Reported As: 2012 MLD 1448 Result: Appeals allowed Judgment JUDGMENT ' YAHYA AFRIDI, J.---By this single judgment, we shall dispose of four Criminal. Appeals, one Murder Reference sent by the Sessions Judge, Haripur under Section 374 of the Criminal Procedure Code, 1898 ("Cr.P.C.") for confirmation of death sentence awarded to appellant Muhammad Ashraf, and one Criminal Revision for enhancement of sentence awarded to appellants Waqar and Muhammad Iltaf, as they all arise out of tragic incident, Which took three precious lives of Said Zaman, Muhammad Asad and Muhammad Ashraf and injured one young Rab Nawaz. The incident was recorded as case F.I.R. No,400 dated 8-9-2004 registered in Police Station Saddar Haripur ("F.I.R."). 2. The particulars of the Appeals filed by three convicts-appellants, the Death Reference and the Criminal Revision filed by complainant. For enhancement of sentence and the details of conviction and sentence awarded to the appellants by Additional Sessions Judge-V, Haripur vide the impugned judgment and order dated 28-7-2010, are as follow:-- (i) Criminal Appeal No,134 of 2010. This appeal has been filed by Muhammad Ashraf, appellant- convict, who was convicted and sentenced to death for the murder of Muhammad Ashraf deceased under section 302(b) read with sections 148, 149 of Pakistan Penal Code, 1860 ("P.P.C.") and to piy fine of Rs,50,000 or in default :thereof to undergo 15ne year Simple Imprisonment ("SI"). He was also directed to pay Rs,50,000 as compensation to the legal heirs of deceased under section 544-A Criminal Procedure Code, 1898 ("Cr.P.C.") or in default thereof to suffer one year S.I. (ii) Murder Reference No, 14 of 2010. This Murder Reference has been sent by the Addl. Sessions Judge, Haripur under section 374 of the Cr.P.C. For confirmation of death sentence awarded to
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appellant Muhammad Ashraf. (iii) Criminal Appeal No,135 of 2010: This appeal has been filed by Muhammad Ashraf, who was also tried separately by the trial Court in case F.I.R. No,441 dated 7-10-2004 under section 13 of The Pakistan Arms Ordinance, 1965 ("A.0") for recovery and possession of 'kalashnikov' along with 20 live rounds of 7.62 bore, crime weapon and convicted and sentenced to three years Rigorous Imprisonment ("R.I") and to, pay fine of Rs,10,000 or in default thereof to undergo six months' S.I. (iv) Criminal Appeal No, 136 of 2010. This appeal has been filed by Waqar Ahmad and Muhammad Iltaf, appellants-convicts, who were convicted and sentenced to life imprisonment under section 302(b) read with sections 148, 149 P.P.C. And to pay fine of Rs,50,000 each or in default thereof to undergo one year S.I. They were also held liable to pay Rs,50,000 each as compensation under section 544-A, Cr.P.C. Or in default thereof to suffer one year S.I. (v) Criminal Appeal No,137 of 2010. This appeal has been filed by Waqar Ahmad, who was also tried separately by the trial Court in case F.I.R. No,442 dated 7-10-2004 under section 13 of The Pakistan Arms Ordinance, 1965 ("A.0") for recovery and possession of lalashnikov' along with 25 live rounds of 7.62 bore, crime weapon and convicted and sentenced to three years Rigorous Imprisonment and to pay fine of Rs,10,000 or in default thereof to undergo six months. S.I. ' All the three appellants-convicts were also convicted and sentenced for the attempt on the lives of complainant Javed and Muhammad Arif, under section 324, P.P.C. To 10 years' Rigorous Imprisonment and also to pay fine of Rs,20,000 each or in default thereof to further suffer one year simple imprisonment. ' The trial Court also held that all the sentences were to run concurrently. ' The trial Court further declared the absconding accused Muhammad Afzal Khan son of Yaqub Khan, Qadeer son of Muhammad Afzal Khan and Akhtar Nawaz son of Muhammad Ashraf as proclaimed offenders and issued perpetual warrants of arrest against them with directions to the quarters concerned to take appropriate steps in pursuance of the said proclamation in accordance with law: (vi) Criminal Revision No, 36 of 2010. This revision has been filed by Javed praying for the enhancement of the sentence awarded to appellants Waqar Ahmad and Muhammad Iltaf. 3. Now to the prosecution's case it originated from the report of Javed son of Said Zaman, Caste Gujjar RIO Naiger cum Teer, District Haripur ("the complainant"), who while present on the spot along with Muhammad Arif, his cousin and in presence of the dead bodies of three deceased Said Zaman son of Gohar Rehman, Asad son of Said Zaman and Muhammad Ashraf son of Gohar Rehrnan on 8-9-2004 at 1945 hours reported to Muhammad Nazir, Police Station Saddar, Haripur (P. W.16), about the occurrence, which he recorded as a murasila ; ' The complainant alleged therein that at about 1830 hours, he along with Muhammad Arif, his cousin were cutting grass in the maize field in front of their residential house, when Muhammad Afzal Khan son of Yaqub Khan, his brother Muhammad Ashraf and Qadeer son of Muhammad Afzal, their co-villagers, and Iltaf son of Mir Afzal, resident of village Dehri cum Soha' along with two other unknown persons, who could be identified by face, all duly armed with 'kalashnikovs' came there. Muhammad Afzal Khan shouted for Said Zaman, the father of complainant to come out of his house, upon which his father came out and Muhammad Afzal Khan started firing with 'kalashnikov' at him, as a result, he was hit and died on the spot. On report of fire shots, Asad, brother of the complainant, Muhammad Ashraf, his uncle and Rab Nawaz, cousin of the complainant also came out of the house. Qadeer fired upon Asad, while Muhammad Ashraf fired at Muhammad Ashraf with their 'kalashnikovs', who were hit and died on the spot. Thereafter, all the, six accused started firing upon Rab Nawaz, Muhammad Arif and the complainant, with intention to kill. As a result of the said firing, Rab Nawaz got injured, while the complainant and his cousin Muhammad Arif escaped unhurt, as they hide themselves in the maize crop. All the six accused decamped from the spot. The
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injured Rab Nawaz was sent to the hospital at Haripur. The motive for the offence was stated to be a dispute between the parties over property. 4. After completing the investigation, the challan was put in court. The present appellants on denying the charge pleaded their innocence and demanded a trial, which thus followed. 5. The prosecution produced nineteen witnesses to prove guilt of the present appellants, which included the two eye-witnesses, Javed (P. W.13) and Muhammad Arif (P.W.14), the recovery witnesses of blood-stained earth, empties, blood-stained clothes of deceased, the sickle and maize stick and the crime weapons, Bashir Ahmad S.-I. (P.W.3), Muhammad Ghayoor IHC (P.W.7) and Muhammad Sajid (P.W.11), while the medical evidence was rendered by Dr. Munawar Afridi (P. W.1) and. Dr. Zafar Hayat (P.W.2), and finally the investigating officers Qazi Ajmal H.C. (P.W.15), Muhammad Nazir S.I (Retd) (P.W.16), Muhammad Riaz Inspector (P.W.17), Muhammad Sarwar Inspector (P.W.18) and Muhammad Abbas S.I. (P.W.19), also recorded their evidence. 'Dr. Zafar Hayat Khan (P.W.2), who had conducted the autopsy on the dead bodies of all the three deceased Said Zaman, Muhammad Asad and Muhammad Ashraf found the following injuries, on the person of the said deceased, respectively:- (i) SAID ZAMAN "EXTERNAL EXAMINATION. (1) Two entrance bullet wounds on the anterior aspect of both thighs. There is corresponding hole on shalwar. Two exit wounds on the back of both thighs. (2) Entrance wounds on upper pole of left arm and exit wound on the posterior aspect of left arm. (3) Entrance wound on the left side of chest with corresponding exit wound on the back. (4) Wide spread wounds on the right elbow wear and tear flash and bones with bullets at the same side. INTERNAL EXMINA TION THORAX: Left chest wall and level of the third intercostals space were pierced by bullet through and through... Pleurae on the left lung were ruptured. Upper lobe of left lung was pierced by bullet. Blood vessels of the left lung were injured by the bullet. Abdomen: Stomach was empty. MUSCLES, BONES, JOINTS: (1) Muscles of left arm were injured. Intercostals muscles of 3rd space were injured. (3) Muscles and hones at lower end of humerus and upper end of radius and ulna were destroyed. (4) Muscles of both thighs were injured. Thorax muscle injured in 4-5 intercostals space. OPINION: An aged man of 60 years with thin and weak built having multiple fire arm injuries on his body. He was expired as a result of heavy blood loss due to fire arm injuries. Probable time between injury and death was 10-20 minutes. Probable duration between death and PM was 4 to 5 hours." (ii) MUHAMMAD ASAD "EXTERNAL EXAMINATION (1) Two entrance wounds of bullet on left side of neck with corresponding exit wounds on the back of left leg. (2) Two pellets recovered from the entrance wound on the right side of neck. (3) An entrance wound on the left chest with corresponding exit wound on the left back. (4) An entrance wound on the left flank with corresponding exit wound on the back. (5) Entrance wound of the left medial aspect of thigh with exit on the back. (6) An entrance wound on the lateral aspect of right thigh with exit wound on back of right thigh. INTERNAL EXMINATION THORAX: Wall of the left chest was pierced by bullet at the end of 2nd intercostals space. Pleurae were ruptured at upper lobe of right lung. Left Lung: Upper lobe was pierced and injured by bullet. Blood vessels of the left lung were injured.
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' Abdomen: Wall of the abdomen on left flank was injured and pierced by bullet. ' Peritoneum was ruptured at corresponding site. Stomach was intact and empty. ' Large Intestine: Left colon was pierced by bullet. MUSCLES; BONES, JOINTS: (1) Muscle of neck was injured. (2) Muscles of the left abdomen were pierced by bullet. (3) Muscles of both thighs were injured. (4) Muscles of 2nd intercostals space on left chest were injured. (5) There was fracture of left femur bone. OPINION: A very healthy man of strong built, wearing Shalwar Qameez having multiple wounds on body. He died as a result of shock due to heavy blood loss due to fire arm injuries. ' Probable time between injury and death was 10-20 minutes. Probable duration between death and PM was 4 to 6 hours." (iii) Muhammad Ashraf "EXTERNAL EXAMINATION. (1) An entrance wound of bullet in the centre of chest mid with corresponding exit on back. (2) Three entrance wounds in shape of triangle on the left lower abdomen with corresponding exit wounds on the back. (3) A fire arm wound on right upper forearm with fracture of right humorous. (4) Rigor mortis not developed. INTERNAL EXMINATION THORAX: Entrance wound of bullet pierced sternum at about mid. ' Pleurae of right lung were ruptured. ' Right lung and its blood vessels were injured. Abdomen: Anterior wall of abdomen was pierced by bullet on left lower position. Peritoneum was injured. Stomach was empty and intact. ' Large intestine was empty and injured and spleen was ruptured by bullet. MUSCLES, BONES, JOINTS: (1) Muscles of right arm at proximal end were injured with injury to right hamerus and fractured. (2) Sternum bone was injured and fractured: (3) Muscles of abdomen were injured with bullet. OPINION: An advanced age man with healthy built wearing Shalwar qameez, having multiple gun shot wounds on his body. His death occurred as a result of heavy blood loss due to multiple fire arm injuries. Probable time between injury and death was 10-20 minutes. Probable duration between death and PM was 4 to 6 hours." As far the abandoned injured eye-witness, Rab Nawaz, he was examined by Doctor Munawar Afridi, Medical Officer (P.W.1), who described his injury vide Medico-legal Report Exh. P.W.1/1, as follows:-- "Firearm entry wound about I" x 1", circular at the posterior aspect of the right lower thigh, 2" above the .Popliteal fossa. Sever bleeding has occurred and still present. The patient was semi unconscious. B.P was 60/1 pulse was feeble. Corresponding mark on the Shalwar was present, which was signed and handed over to the police. After providing emergency, the patient was referred to AMC, Abbottabad for further management. ' Duration was fresh, kind of injury was grievous and kind of weapon was firearm." 6. The appellants recorded their statements under section 342, Cr.P.C. Denying their involvement in the commission of the offences for which they were charged. However, they wished not to be examined as their own witnesses on oath in rebuttal of charges against them within the contemplation of section 340(2), Cr.P.C. Appellant Muhammad Iltaf had filed an application for summoning of witnesses in his defence, which was dismissed by the trial Court vide order dated 13-7-2010. 7. Learned counsel for the appellants vehemently contended that the F.I.R. Was lodged after preliminary investigation and thus lost its evidentiary value; that the presence of the eye-witnesses on the spot at the time of occurrence is highly doubtful in particular, when they did not have received a single injury in spite of indiscriminate firing by six persons with lalashnikove; that the
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contents of the F.I.R. And the ocular account of the eye-witnesses are in conflict with the medical evidence, as the Medical Officer, who conducted postmortem examination of the deceased, had recovered pellets from the body of deceased Muhammad Ashraf, which means that 12 bore shot gun was also used in the commission of the offence but the complainant-eyewitnesses Javed and eye-witness Muhammad Arif had categorically stated that all the six accused were having 'kalashnikovs' in their hands also creates reasonable doubt that the eye-witnesses were not present at the spot at the time of occurrence; that the motive for the occurrence alleged in the F.I.R. As property dispute was in fact against Shah Nawaz (P.W.12) but the appellants did not even make an attempt to harm him despite his presence on the spot; that though the prosecution is not legally bound to prove motive in every case, yet once it has set up a motive and failed to establish it, then prosecution must suffer the consequences and not the defence; that non-mentioning of the names of accused and witnesses in the inquest report is indicative of the fact that till preparation of said report, it was not in the knowledge of police about the names of the witnesses and the accused; that the arrest of appellants Muhammad Ashraf and Waqar and recovery of alleged crime weapons from them was dubious; that delay in dispatching the crime weapons and empties recovered from the spot to the forensic science laboratory was not free from doubt and could not be used against the appellants in the circumstances of the case; that the exigency of service of appellant Iltaf being in Pakistan Navy could not be considered as abscondance and abscondance itself is not sufficient for conviction of a person without sufficient material evidence on record to connect the accused with commission of offence; that the maxim falsus in uno falsus in omnibus is not universal principle to apply in all criminal cases; and that when it is found that it could not be possible to dig out truth from the testimony of eye-witnesses being not confidence inspiring and other material on record, then it could be unsafe to record conviction. Reliance was placed on Iftikhar Hussain and others v. The State (2004 SCMR 1185), Muhammad Rafique and others v. The State (2010 SCMR 385), (2006 SCMR 1707), Mst. Saddan Bibi v. Muhammad Ameer and others (2005 SCMR 1128) unreported judgment in Abdul Wahab v. State (Criminal Appeal No,49 of 2009) decided on 22-2-2012, Gul Zaman v. Shereen Bahadur (2010 YLR 3019), (2006 PCr.LJ 1082), (2008 YLR 1926), Ghulam Qadir v. The State (2008 SCMR 1221), Riaz Ahmad v. State (2010 SCMR 846), Muhammad Tufail v. State (2010 PCr.LJ 1389), (1997 SCMR 25), (1999 SCMR 172), Muhammad Nadeem alias Banka v. The State (2011 SCMR 1517), (2002 SCMR 1986), Ghulam Akbar v. State (2008 SCMR 1065); (2007 PCr.LJ 1585), (2010 SCMR 105), Muhammad Akbar v. The State (1990 SCMR 1129), Imran Shah v. Mst Dil Pari Jana (2011 YLR 311), Muhammad Khan v. The State (1999 SCMR 1220), Ghulam Mustafa v. State (2009 SCMR 9.16) and Qaisar Shah v. State (2006 YLR 622). 8. The learned counsel for the complainant ably assisted by the learned A.A.-G., controverted the submissions of learned defence counsel and they asserted vehemently, that the trial Court with dynamic approach appreciated the entire evidence produced by the prosecution has rightly convicted the appellants; that the presence of eye-witnesses on the spot at the time of occurrence was established without any doubt; that the motive was not required to be proved for awarding death sentence; that in the event of variation in ocular and medical evidence, ocular evidence has to be believed; that the prosecution is not legally bound to produce and examine all the witnesses named in the calendar of witnesses, as it is the quality and not quantity of evidence; that the trial Court has rightly ignored minor discrepancies in the statements of the witnesses, which are quite natural after lapse of time and the testimony of witnesses cannot be discarded for minor contradiction; that the trial Court has sifted the grain from chaff and relied upon the testimony of eye-witnesses for recording conviction of the appellants; that the trial Court following the rules of corroboration settled by the apex Court, has rightly considered abscondance of accused as corroborative circumstance; that all- the convicts being vicariously liable for the commission of offence were rightly convicted irrespective of roles attributed to them; that the complainant party
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has no reason to substitute real culprits with innocent; that delay in sending the crime empties is no ground to reject such evidence; that identification parade was not at all necessary in the present case when accused were charged by name subsequently in supplementary statement; that plea of alibi can be taken at earliest opportunity and such plea cannot be considered in absence of unsatisfactory story; that death can be awarded in absence of mitigating circumstances and lack of motive. Reliance was placed on Jafar All v. The State (1998 SCMR 2669), Imtiaz Ahmad v. The State (2001 SCMR 1334), Muhammad Younas and another v. The State and others (1990 SCMR 1272), 1997 SCMR 89, Awais and another v. The State and another (2004 PCr.LJ 377), Anar Gul v. The State (1999 SCMR 2303), Afzal-ur-Rehman v. The State (2003 SCMR 355), Fatima Bibi and 5 others v. Sardar All and 3 others (2002 PCr.LJ 668), The State v. Waheed Iqbal and others (2005 PCr.LJ 1384), Saeed Akhtar and others v. The State (2000 SCMR 383), Sarfaraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Muhammad Asghar and others v. The State 2010 SCMR 1706, The State v. Aminullah and another PLD 1972 Pesh. 92, Riaz Hussain v. The State (2001 SCMR 177), 2005 PCr.LJ 1384, The State v. Moula Bakhsh alias Moulak (2005 PCr.LJ 794), Muhammad Yaqoob and others v. The State and others (2007 PCr.LJ 1860), Zahid Imran and others v. The State and others (PLD 2006 SC 109), Nazir Ahmad and others v. The State and others (PLD 2005 Kar. 18), Ameer All v. The State (1999 MLD 758), Ch. Muhammad Siddique v. Muhammad Zubari arid 4 others (1995 SCMR 1112), Muhammad Afzai and another v. The State (1982 SCMR 129), Ghazanfar All and 16 others v. The State (NLR 2007 Cr.L.J 110), Aminullah v. The State (PLD 1976 SC 629), Pahlwan and 2 others v. The State (2000 PCr.LJ 299), Mohtarama Benazir Bhutto and another v. The State (PLD 2000 SC 795), Imtiaz Ahmad v. The State (2001 SCMR 1334), Nawaz Ali and another v. The State (2001 SCMR 726), Talib Hussain and others v. The State (1995 SCMR 1776), Khurram Malik and others v. The State and others (PLD 2006 SC 354), Mst. Bismillah and another v. Muhammad Jabbar and others (1998 SCMR 862), Muhammad Ashraf and others v. The State (PLD 1983 SC 216) and Sheikh Hassan v. Bashir Ahmad and another (PLD 1966 (W.P) Peshawar 97). 9. The valuable arguments of the learned counsel of the parties have been heard and noted, while the record of the case thoroughly perused. 10. The anchor sheet of the prosecution's case against the present convicted appellants is the testimony of the two eye-witnesses Javed (P.W.13) and Muhammad Arif (P.W.14). When we review the stance taken by the two, at the time of reporting the tragic incident to the police and later before the Court, we note that strikingly their testimony does not inspire confidence in relation to charging Waqar. Firstly, laved (P.W.1/3) in his report to the police at the spot, clearly attributes the offence to six persons, four of them are named, while two are not named and he clearly reports that he can identify the two on seeing them. Though, the said eye-witness tries to justify the same during his cross-examination stating that the two had their backs towards him and it was later that the women folk informed him that the said two witnesses were Waqar and Akhtar Nawaz. The justification initially appears to be attractive but is not convincing. The said witness during his cross-examination clearly admitted that prior to the incident Wagar and Akhtar Nawaz were known to him. In such a situation; when the said two accused were known to him, his not naming them in the report to the police and stating that on seeing them, the two can be identified, totally belies the credence of the said crucial star witness of the prosecution. Secondly, we cannot be oblivion to the general tendency in our society, where the aggrieved party while registering cases exaggerate their report in order to in rope other as accused in criminal cases. Accordingly, the testimony of such a witness is not to be totally disbelieved as very aptly explained and discussed by the apex Court in Ghulam Mustafa v. The State (2009 SCMR 916):-- "In our jurisprudence it is by now well established that the legal maxim falsus in uno falsus in omnibus is not a universal principle to be applied in all criminal cases: However, according to
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settled case-law there are 'exceptions and if evidence on the record warrants a doubt in the credibility of such witnesses then, indeed their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. In this connection reference can be made to Muhammad Nawaz v. State 1969 SCMR 132, Shafoo v. State 1968 SCMR 719 and Allah Ditta v. State PLD 2002 SC 52." ' The principle discussed by the apex Court in the judgment, hereinabove, has reiterated that the Courts are to sift the 'grain' from `chaff'. This is essentially a rule of prudence and that is to ensure that B the actual criminal does not go unpunished. ' Keeping this principle in mind, and seeking guidance of the judgment of the Supreme Court in case titled Muhammad Iqbal v. Muhammad Akram (1996 SCMR 908) we note that ocular testimony can generally be divided into three categories, Category-I ' This is the testimony of a witness, who is naturally placed at the place and time of occurrence; his testimony is logical and trustworthy. In such a situation, his sole testimony can saddle the capital punishment upon an accused. There is no need for any corroboration. Category-II ' In this category of witnesses, their testimony has no .Truth or confidence arising therefrom. No matter how much corroboration is placed on the record, the said testimony, would not have the force or veracity of truth that could lead to the conviction of an accused charged for a capital offence. Category-III ' In this category of witnesses, the testimony of a witness is partly truthful and the remaining unreliable. It is in such circumstances, that the Courts have to be cautious and prudent. The entire testimony of said witness should not be outrightly rejected. The Court has to be dynamic and seek whether the part of the testimony, which appears to be truthful, is corroborated by other evidence emanating from an independent source or otherwise. ' Keeping the above principle in mind, when we reviewed the testimony Javed (P, W.13), and Muhammad Arif (P. W.14), we could have outrightly rejected the entire testimony of both for falsely in roping one set of accused including Wagar. However, we thought it appropriate to test the veracity of their testimony regarding the other set of accused, namely Muhammad Ashraf and Muhammad Iltaf, considering it to fall in the testimony described in Category-III, hereinabove.…
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