Full Judgment Text & Judicial Ruling

2007 Y L R 493

2007 Y L R 493

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ASHRAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.802 and Murder Reference No.449 of 1998, heard on 13th September, 2006.

(a) Penal Code (XLV of 1860)---

----Ss. 302, 379, 100 & 34---Appreciation of evidence---Case of two versions---Plea of self-defence---Scope and effect---Allegation against accused/appellant was that he along with co-accused (since dead) committed murder of deceased with .12 bore carbine---Accused in his statement under S.342, Cr.P.C. took up plea of self-defence, stating therein; that it were deceased and his companions who opened attack and fired at accused and his co-accused, whereupon the latter exercised their right of self-defence and in cross-firing deceased and co-accused of appellant/accused were killed---Trial Court convicted and sentenced accused to death---Validity---Presence of eye-witnesses on the spot according to F.I.R. was by chance and as background of enmity existed between the parties, therefore, statements of eye-witnesses required deeper scrutiny and independent corroboration---Both the eye-witnesses contradicted each other on material points and their statements were not supported by important features of the case---Circumstances revealed that alleged promptly lodged F.I.R. could not be recorded at the time given therein, rather it was a clear-cut padding on the part of Investigating Officer who wanted. to show that F.I.R. was prompt so that presence of eye-witnesses, who lived at a quite distance, was not to be doubted---Circumstances of the case revealed that eye-witnesses were not present on the spot---Recovery of weapon was not to be used against accused as corroboratory evidence, as neither empties recovered front the spot nor weapon was sent to Forensic Science Laboratory, it was, therefore not possible to say that weapon was used in the occurrence or it was in working condition---Chair on which deceased was murdered was taken into possession but no blood-stained piece of the same was taken from it for the purpose of Chemical Examination to establish that chair was smeared with human blood---Medical evidence did not lead to assailant---Extraordinary delay in sending dead body to mortuary cast doubt on the presence of eye-witnesses---Motive was a double-edged sword which cut both ways and as hostility existed between the parties over murders, therefore, it was not to be used either in favour of prosecution or in favour of accused---Both the accused were already equipped with fire-arms and there was no occasion for them to steal the gun of deceased after commission of his murder and presence of gun, belonging to deceased, near dead body of co-accused led to carving out of false story by prosecution---Act of accused was covered by S.100, P.P.C. and there was no option but to accept defence plea---Accused was acquitted.

(b) Penal Code (XLV of 1860)---

---Ss. 302, 379, 100 & 34---Appreciation of evidence---Principles---Two versions of incident---Duty of Court---In case of counter-version, if the Court believed prosecution evidence and was not prepared to exclude the same from consideration, it was not to straightaway convict the accused but was to review the entire evidence including circumstances appearing in the case before reaching at a conclusion as to truth or falsity of defence plea/version---Factors favouring prosecution's stance were to be placed in juxtaposition to corresponding factors favouring defence plea and total effect was to be estimated regarding plea raised by accused, established by evidence and circumstances of the case---If the total effect of evidence and circumstances favoured defence plea then the Court was to accept version put forward by accused; but if total effect of evidence and circumstances did not favour defence plea then the Court was not to reject defence plea as being false but to go a step further to find out whether or not there was yet a reasonable possibility of defence plea/version being true---If it were found by the Court that although accused had failed to establish his plea/version to the satisfaction of Court but his plea might reasonably be true, even then the Court was to accept his plea and acquit or convict him accordingly.

Khalid Javed and another v. The State 2003 SCMR 1419 and Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 rel.

Rana Muhammad Arshad Khan for Appellant.

Ashfaq Ahmad Chaudhry (in Murder Reference) and Maqbool Ahmad Qureshi (in appeal) for the State.

Chaudhry M. S. Shad for the Complainant.

Date of hearing: 13th September, 2006.

JUDGMENT

MUHAMMAD FARRUKH MAHMUD, J.---Muhammad Ashraf, appellant; was tried by the learned Additional Sessions Judge, Depalpur, in lieu of case F.I.R. No.76 registered at Police Station Mandi, Ahmadabad on 20-4-1995 for offences under sections 302/379, P.P.C. Vide judgment dated 8-7-1998, the learned trial Judge convicted the appellant for offence under section 302, P.P.C. to death plus payment of Rs.30,000 as fine, which, in the event of realization, was to be paid to the legal heirs of the deceased, in default in payment whereof the convict/appellant was to undergo imprisonment for six months.

2. Muhammad Ashraf, convict-appellant, has challenged his above noted conviction and sentence through the instant appeal. Murder Reference No.449 of 1998 seeking confirmation or otherwise of death sentence inflicted upon the appellant has also been placed before us. We propose to decide both these matters through this consolidated judgment.

3. The facts of the prosecution case per F.I.R. Exh.PA recorded by Ibrar Ahmad Khalil, S.-I./P.W.12, at the instance of Mst. Shamim Akhtar, complainant/P.W.1, in brief, are that she was married to Muhammad Idrees 14/15 years ago. Nawab Din, brother-in-law of her husband, was murdered 7/8 years prior to the registration of the case. Muhammad Ashraf, Makhan, Maqbool Ahmad, Bashir alias Faqiriya and Anwar Mochi were challaned in that case. Subsequently, four years earlier the brother-in-law of the aforesaid accused Ashraf etc. was murdered and a case in that regard was registered against her husband Idrees and four others at Police Station Hujra. On. account of enmity of the said murders, they left their residence and shifted to Abadi Parmanand. Although the husband of the complainant was not guilty for the murder of Jaffar yet due to pursuing the murder case of Nawab Din by Muhammad Idrees, the relatives of Jaffar wanted to cause the death of Muhammad Idrees, They had been trying to take revenge from Muhammad Idrees despite leaving his residence. On 20-4-1995 at about 10-00 a.m. the complainant and Muhammad Farooq, nephew of her husband/P.W.2, who had come from Bhokan to their house to see them, went to her husband at Dispensary, Sadda Singh. Her husband was sitting on a chair and she along with Muhammad- Farooq sat in front of Muhammad Idrees. All of a sudden Muhammad Ashraf armed with .12 bore carbine and Muhammad Ilyas (since dead) armed with pistol came there. Muhammad Ashraf fired a shot from his carbine hitting Muhammad Idrees on the left side of his back. Meanwhile Muhammad Ilyas co-accused, while aiming his pistol upon the complainant and Muhammad Farooq, threatened them with dire consequences in case they tried to save Muhammad Idrees. Due to fear they remained sitting helpless. Meantime, Ashraf/accused came in front of her husband and while raising Lalkara that he had come to take revenge of his father Jaffar, fired at Idrees hitting him on his abdomen, as result whereof her husband became unbalanced on the chair. Muhammad Ilyas picked up .12 bore double barrel licensed gun of her husband which he had kept for defence purposes. On hearing firing reports, the people from the nearby village rushed to the place of occurrence. On catching sight of the people, both the accused resorted to indiscriminate firing, causing harassment to the people and then made good their escape. The complainant and Muhammad Farooq attended to Muhammad Idrees who was found to have been succumbed to the injuries at the spot. On hue and cry of both the P.Ws. that the accused had murdered Muhammad Idrees, the people of the village started chasing the accused. While leaving Muhammad Farooq at the spot, the complainant herself went to the police station to report the matter.

4. On 20-4-1995, Ibrar Ahmad Khalil, S.-I./P.W.12, after recording F.I.R. Exh.PA at the instance of Mst. Shamim Akhtar/complainant, went to the place of occurrence. He prepared injury statement Exh.PJ and inquest report Exh.PK of the deceased and sent the dead body for post-mortem examination. On spot inspection, he collected blood-stained earth from the spot and sealed the same into a parcel vide memo. Exh.PB. He took into possession two crime empties P-111-2 and blood-stained chair P-2 through memos. Exhs.PC and PD respectively. He prepared rough site-plan of the place of occurrence (Exh.PL). The last-worn blood-stained clothes of the deceased i.e. Shalwar P-10 and shirt P-11 along with a sealed phial containing pellets P-12 were taken into possession through memo. Exh.PM. Muhammad Ashraf appellant was arrested on 22-4-1995. After completion of investigation, the appellant was sent up to face trial.

5. To substantiate its version at the trial, prosecution produced fourteen witnesses. Ocular account was furnished by Mst. Shamim Akhtar/P.W.1 and Muhammad Farooq/P.W.2. In addition to that, they also stated about the motive. Nazar Muhammad/P.W.6 and Allah Ditta, A.S.-I./P.W.11, stated about the recovery of .12 bore pistol from the appellant. On 21-4-1995, Dr. Rahmat Ali Imran/P.W.7 conducted post-mortem examination on the dead body of the deceased. He, while observing the following injuries on the person of the deceased:--

"(I) Fire-arm lacerated wound 7 No. in area of 6 c.m. x 5 c.m., each measuring 112 c.m. x 1/2 c.m. on back upper chest deep going, margins inverted with blackening around. Corresponding seven holes were present on Qameez (entry wound).

(II) Fire-arm lacerated wounds seven in number, in multiple area measuring 16 c.m. x 10 c.m. on left side of abdomen just close to umbilicus each measuring half c.m. x half c.m. except one of them which was measuring 1 1/4 x 1 112 c.m. Wad was recovered from this large wound. Margins of wounds were inverted with blackening around and were deep going. Corresponding holes seven in number were present on the Qameez.

(III) Pellets were recovered from liver tissues. One pellet was found in the liver area cavity. One pellet was found from muscles right side, just close to axilla. Three to four ounces of dark clotted blood removed from this area."

opined that cause of death was shock and haemorrhage, damage of vital organs, caused by the injuries which were sufficient to cause death in ordinary course of nature. All the injuries were ante mortem caused by fire-arm weapon. He further opined that duration between injuries and. death was almost immediate, while it was within 24 to 25 hours between death and post-mortem examination. Ibrar Ahmad Khalil, S.-I./P.W.12, stated about the registration of the case and the investigation thereafter. Muhammad Sarwar/P.W.4 identified the dead body of the deceased before the doctor at the time of post-mortem examination. The rest of the evidence, being formal in nature, need not be discussed.

6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication, taking up the plea of self defence in the following words:--

"I am innocent. I have been falsely involved in this case due to enmity. In fact the occurrence did not take place in the dispensary of Qila Sadda Singh and the complainant party shifted the venue of occurrence dishonestly. I and Muhammad Ilyas (since dead) were passing the side of Qila Sadda Singh where the deceased saw us and he along with his companions challenged us, and we ran to save our lives but the deceased who was armed with .12 bore gun and his companions were also armed with fire-arm weapons fired at us and we also fired at them in return to save our lives. I and Muhammad Ilyas (since dead) received fire-arm injuries at the hands of the deceased and his companions. Muhammad Idrees deceased was also hit by the fires during cross firing in the area of village Shadiwal and his dead body was removed on a cot from there and it was placed in the dispensary of Qila Sadda Singh."

The appellant did not appear as a witness in his defence as enjoined by section 340(2), Cr.P.C. However, he produced Bashir Ahmad/D.W.1 in his defence. D.W.1, while corroborating the statement of the appellant on material points, added that the police arrived at the spot and he made the statement.

7. Learned counsel for the appellant contends that both the witnesses are not only related to the deceased but also chance witnesses; that they had no occasion to be present at the time of occurrence; that the padding and fabrication by the police is apparent from the fact that according to record, F.I.R. was registered at 10-30 a.m., while according to the complainant, she left the spot to report the matter at 11-30 a.m.; that there are material discrepancies in the statements of both the witnesses; that the defence plea is borne out from the circumstances of the case and is also supported by the independent witness D.W.1; that according to prosecution case deceased lost his life while he was sitting on a chair which was taken into possession during investigation but it was not blood-stained; that in case the deceased had lost his life while sitting on the chair, then the chair must have been smeared with blood; that P.Ws.3 and 4 have stated that the dead body was lying on the cot and not on the chair, while according to the eye-witnesses, the dead body remained lying on the chair till the arrival of the police; and that the prosecution case is not free from doubt.

8. Conversely, the learned counsel for the complainant has submitted that it is a daylight occurrence; that both the witnesses have given a consistent account of the occurrence; that mere relationship of the P.Ws. would not be enough to discard their testimony; that it is a case where the appellant has admitted the occurrence and onus lied upon him to prove that the occurrence took place the way he claimed; that the ocular account is fully supported by the medical evidence as well as the recovery of two empties from the spot; that the incident narrated in the defence plea was the result of subsequent incident and a separate F.I.R. was registered in that regard; that both the incidents cannot be intermingled with each other; that both the P.Ws. have corroborated each other on almost all the material points; that the defence plea relates to the incident as narrated by Sufi Waryam/P.W.5 that in fact the accused were followed by the villagers after they had committed the murder of Idrees; that Sufi Waryam who stated that the villagers followed the accused after they had committed the murder; that Sufi Waryam was an independent witness; that ocular account is corroborated by the motive as well; that it is not a case of substitution; that no mitigating circumstance exists in favour of the appellant who has murdered an innocent person due to personal vendetta. Mr. Maqbool Ahmad Qureshi, the learned counsel appearing on behalf of the State in the appeal' has adopted the line of arguments of the learned counsel for the complainant. They support the judgment passed by the learned trial Court. However, Mr. Ashfaq Ahmad Chaudhry, the learned counsel appearing on behalf of the State in the murder reference, has frankly conceded that both the witnesses were chance witnesses and their statements suffered from material contradictions; and that D.W.1 clearly stated that Dr. Idrees was following the appellant along with other persons.

9. We have heard the learned counsel for the parties and have also gone through the record of the case.

10. It is a case of two versions, as Muhammad Ashraf appellant has taken specific plea of self-defence, which has been reproduced above. Both the versions are to be put in juxtaposition to discover which of the two is true or nearer to the truth and is borne out from the circumstances of the case. According to the prosecution case enmity existed between the parties' over murders of Nawab Din husband of the sister of deceased in this case and Jaffar father of Muhammad Ashraf. Due to the enmity the deceased, who was employed as Dispenser, shifted his residence to village Parmanand. On the fateful day at about 10-00 a.m., Mst. Shamim Akhtar wife of the deceased and Muhammad Farooq maternal nephew of the deceased went to visit the deceased in Dispensary situated in Qila Sadda Singh. The deceased was sitting on a chair. Both the P.Ws. sat in front. of him. Suddenly, Muhammad Ashraf appellant who was armed with .12 bore carbine and Muhammad Ilyas (since dead) who was armed with pistol reached there. Muhammad Ashraf fired at Idrees which hit on the left side of back of chest. Thereafter Ashraf after raising Lalkara that he wanted to take revenge of his father fired again which hit on the abdomen of the deceased. Meanwhile, Muhammad Ilyas threatened the P.Ws. with dire consequences if they intervened. After firing Muhammad Ilyas, while leaving the scene of occurrence, took away .12 bore double barrel gun of the deceased along with him. After hearing the noise of the firing, the villagers rushed to the spot. However, both the accused resorted to indiscriminate firing and made good their escape. Muhammad Idrees died on the spot. The complainant left the spot to report the matter to the police, while residents of the village went after the accused. It may be mentioned here that according to P.W.11 Allah Ditta/S.-I., on receipt of the information that the accused were being chased by the villagers, he was deputed to go after the accused and when he reached near Shadiwal Morr, he found that Muhammad Ilyas had been murdered, while Ashraf appellant was lying in a field in injured condition. He also found a double barrel .12 bore gun P-8 lying near the dead body of Ilyas accused which was taken into possession vide memo. Exh.PG. He also took into possession .30 bore pistol P-4 and live bullets P-5/1-7 and .12 bore pistol P-9. He secured twenty four empties of .12 bore P-7/1-24. A separate F.I.R. was registered on that regard on the statement of one Zulfiqar. The prosecution case rests on the eye-witnesses account of P.W.1 Mst. Shamim Akhtar and P.W.2 Muhammad Farooq. Mst. Shamim Akhtar lived at a distance of 8/9 miles, while Muhammad Farooq lived at Lahore. Both the witnesses were present at the spot at the time of occurrence per chance. The background of hostility and emnity existed between the parties and the appellant; hence, the statements of these two witnesses require deeper scrutiny and independent corroboration. Mst. Shamim Akhtar stated that Muhammad Farooq had come to attend the marriage of Ghulam Qadir who lived at a distance of 20/25 miles, while P.W.2 stated that he came to the village of the deceased in order to meet him. P.W.1 categorically stated during her cross-examination that "Muhammad Farooq P.W. had not come to us to see us but had come to participate in a marriage." So there is variance in the explanation of two witnesses regarding the presence of Muhammad Farooq. There was also no special occasion for both the witnesses to visit the deceased at 10-00 a.m. at his dispensary. Both the witnesses have also contradicted each other on material points. Their statements are not supported by the important circumstances of the case. P.W.1 stated that deceased collapsed in the chair. P.W.2 stated that the dead body of Idrees was lying on the spot in his chair when the police reached, while according to the I.O./P.W.12 when he reached the spot, the dead body was lying on the cot. The chair P-3 was taken into possession vide memo. Exh.PD but no blood-stained piece was taken from it and sent to the laboratory to, establish that indeed, the chair was smeared with human blood. Most importantly, the F.I.R. has been shown to have been lodged within half an hour of the occurrence at the police station which was at a distance of 21 kilometres. The fabrication and padding on the part of the police was fully exposed by P.W.1/complainant who stated the time of occurrence as 10-00 a.m. She further stated that she left the place of occurrence at 11-30 a.m., after one hour of registration of case, to report the occurrence to the police station, which was at a distance of 15/16 miles from the place of murder and she boarded the bus from Qila Sadda Singh to go to the police station. Obviously, the F.I.R. could not be registered at 10-30 a.m. It is a clear cut padding on the part of the I.O. wanted to show that the F.I.R. was prompt so that the presence of the P.Ws. who lived at a quite distance could not be doubted. The act of the I.O. is further exposed by the fact that the post-mortem examination on the dead body was conducted on the next day, i.e. 21-4-1995.

Dr. Rahmat Ali Imran/P.W.7 stated in clear terms that he received the dead body of Muhammad Idrees on 21-4-1995 and immediately he started conducting post-mortem examination. Exh.PN post-mortem report reveals that post-mortem examination on dead body was conducted at 10-30 a.m. on 21-4-1995. Muhammad Ramzan/P.W.3, who is a witness of the recovery of empties from the spot, stated during cross examination that he learnt about the occurrence at 9/10-00 a.m. and he reached the spot at 10-00 a.m. A large number of persons of nearby village were present at the spot when he reached and those persons were residents of Qila Sadda Singh. He further stated that the dead body was lying on a cot and he could not see as to when Mst. Shamim Akhtar came to the spot on that day. P.W.4 Muhammad Sarwar, who identified the dead body of Muhammad Idrees, stated during cross-examination that he learnt about the occurrence at 11/12-00 a.m. and when he reached the spot, the dead body was lying on a cot and none of the relatives of the deceased was present near the dead body. He further stated that the police sent by the relatives of the deceased who came later after his arrival. However, after making this statement, he took a somersault that the wife and sister's son of the deceased were present there and other relatives came later on. All the above noted facts make it manifest that both the witnesses were not present and they reached later, after the occurrence.

11. As far as the motive is concerned it is a double edged sword which cuts both ways, as the hostility certainly existed between the parties over murders since 1986. Hence, it cannot be used either in favour of the prosecution or in favour of the accused.

12. As regards the recovery of .12 bore pistol, suffice it to say that the same cannot be used against him as corroboratory evidence, as neither the empties recovered from the spot nor the pistol were sent to Forensic Science Laboratory and it cannot be said that the weapon was used in the occurrence or was in working order.

13. Now coming to the medical evidence which has been discussed above, it supports the prosecution case to the extent that the deceased lost his life due to fire-arm injury but it does not lead to the assailant and, as noted above, the extraordinary delay in sending the dead body to the mortuary casts doubts on the presence of the witnesses.

14. Now we are left with the defence plea. In order to appreciate the defence plea, we could like to reproduce the observations of the Supreme Court in the case of Khalid Javed and another v. The State (2003 SCMR 1419), wherein the principles to deal with cases of two versions as laid down by the apex Court in the case of Ashiq Hussain alias Muhammad Ashraf v. The State (PLD 1994 SC 879) were followed, hereunder:

"The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them and then examine the statement of the accused under section 342, Cr.P.C., statement under section 340(2), Cr.P.C. and the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter-version, if the Court believes prosecution evidence…

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