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Petitioner: MUHAMMAD ASHRAF alias KALA and anothers VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: MUHAMMAD ASHRAF alias KALA and anothers vs The STATE Case No.: Criminal Appeal No,2085 of 2005 and Murder Reference No,342 Date of Judgment:2012-02-28 Reported As: 2013 P Cr. L J 1346 Result: Appeal accepted
JUDGMENT
JUDGMENT 'MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No,2085 of 2005 (Muhammad Ashraf alias Kala and another v. The State) and Murder Reference No,342 of 2006, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Muhammad Ashraf alias Kala and Tariq Mehmood alias Ghanti appellants, as both these matters have arisen out of the same judgment dated 23-12-2005, passed by the learned Additional Sessions Judge, Sheilkhupura, whereby, Muhammad Ashraf alias Kala and Tariq Mehmood alias Ghanti appellants were convicted under section 302(b) of P.P.C. For committing the murder of Muhammad Ramzan and were sentenced to death each with a direction to pay the compensation amount of Rs,1,00,000 (Rupees one hundred thousand) each to the legal heirs of deceased and in default thereof to suffer rigorous imprisonment for six months each. 2. Brief facts of the case as given by Muhammad Awais (P.W.2) in his Fard Biyan (Exh.PA) on the basis of which formal F.I.R. (Exh.PA/1) was chalked out, are that on 16-1-2004, at 21:30 hours (9-30 p.m.), Riaz Cabin Man informed him (Muhammad Awais (P.W.2) that a person named, Muhammad Ramzan, was lying near the West Cabin FRQD in serious injured condition, who had received firearm injury by some one. The injured Muhammad Ramzan was employee of Pakistan Railway. The police was informed, who visited the spot and recorded the statement of Muhammad Awais (P.W.2). The appellants were not named in the F.I.R. (Exh.PA/1), as the same was lodged against unknown accused. They were implicated in this case on the basis of the statements of the brothers of deceased namely, Nazir Ahmad (P.W.1) and Sultan Ahmad (P.W.3). Sultan Ahmad (P.W.3) in his statement (Exh.DB) has stated that on the day of occurrence i.e, 16-1-2004, at about 8-30 p.m., he and Muhammad Ramzan (deceased), after performing their duties alighted from the train at
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Farooqabad Railway Station. His bicycle was lying in the railway quarters, whereas, the bicycle of the deceased Muhammad Ramzan was lying in the cabin of Railway Station. He has further stated that after taking their bicycles, they used to reassemble at Thatek' No,47. On the day of occurrence, he was waiting for his brother Muhammad Ramzan at the specified place. After some time, a white coloured car bearing Registration No,706 came from cabin side and went towards the soaling side, after crossing railway `Phatek' No,47. He has further stated that the said car was being driven by Tariq Mehmood (appellant), who was accompanied by Muhammad Ashraf (appellant). After some time, he (Sultan Ahmad (P.W.3)) went to the cabin to know the situation as to why his brother Muhammad Ramzan (deceased) had not yet come. When he reached near the cabin, he heard the hue and cry of his brother Muhammad Ramzan (deceased). He has further stated that he started weeping, when Riaz came at the spot and consoled him. After a short while, his brother Nazir Ahmad (P.W.1) and one Yousaf reached at the spot. According to the said witness, Muhammad Ramzan (deceased) was shifted to the Civil Hospital, Sheikhupura in a car for his medical treatment. On the way, Muhammad Ramzan (deceased) stated that he was fired upon and injured by Muhammad Ashraf appellant, whereas, Tariq Mehmood co-accused caught hold of him. ' Motive for the occurrence, as stated by the prosecution, was that a quarrel took place between Asif, younger brother of the appellant Ashraf alias Kala, and the son of the deceased namely, Adnan, about 2/3 months prior to the occurrence. A compromise was effected between the parties. However, the accused Ashraf and Tariq nourished the said grudge and thereafter they committed the murder of Muhammad Ramzan (deceased). 3. The appellant Muhammad Ashraf alias Kala was arrested in this case on 8-2-2004 by Muhammad Bakhsh, SI (P.W.15). During the course of investigation, on 8-2-2004, a pistol (P4) along with magazine, was taken into possession through recovery memo (Exh.PE) on the pointation of the appellant Muhammad Ashraf alias Kala, whereas, on 12-12-2004, the appellant Tariq Mehmood alias Ghanti was arrested and car bearing Registration No,706/FDB was secured from, his possession vide recovery memo (Exh.PN). After completion of investigation, the challan was prepared and submitted before the trial Court. The learned trial Court, after observing all legal formalities, as envisaged under the Code of Criminal Procedure, 1898, framed a charge against Muhammad Ashraf alias Kala and Tariq Mehmood alias Ghanti appellants on 21-6-2004 under sections 302/324/34 of P.P.C., to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution produced fifteen witnesses, during the trial. ' The medical evidence was furnished by Dr. Muhammad Afzal (P.W.10) and Dr. Humayun Siddique (P.W.11), as well as, Dr. Muhammad Ashraf Javed (P.W.12). Muhammad Awais Assistant Station- Master (P.W.2) is the complainant of this case, Muhammad Riaz Draftsman (P.W.7), Iqbal Ahmad (P.W.8), Muhammad Kashif (P.W.13), Muhammad Latif (P.W.14), are the formal witnesses. Nazir Ahmad (P.W.1) and Sultan Ahmad (P.W.3) are the witnesses of Wajtakkar, motive and dying declaration of the deceased Muhammad Ramzan, Zulfiqar Ali Head Constable (P.W.4) is a witness of bloodstained earth and empty cartridges. Muhammad Akram (P.W.5) is a witness of conspiracy. Abdul Majeed (P.W.6) is the recovery witness of pistol .30 bore (P.4). Khurshid Ahmad (P.W.9) is the witness of extrajudicial-confession, whereas, Muhammad Bakhsh (P. W.15) is the Investigating Officer of this case. Before closing its case, the prosecution also produced documentary evidence in the shape of complaint (Exh.PA), F.I.R. (Exh.PA/1), blood-stained earth (Exh.PB), empty cartridge (Exh.PC), Chadar/shoes, etc. (Exh.PD), pistol .30 bore (Exh.PE), postmortem report (Exh.PG), death report (Exh.PH), application from police to doctor and report (Exh.PJ), application to M.S. Mayo Hospital and report (Exh.PI&PK), Medico-legal Report (Exh.PL), sealed envelope (Exh.PM), personal search (Exh.PN) and (Exh.PO), possession of car (Exh.PQ), report of Chemical Examiner (Exh.PS), report of Serologist (Exh.PT), and report of FSL (Exh. PU).
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' The statements of both the appellants under section 342 of Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to a question "Why this case against you and why the P.Ws. Have deposed against you" the appellant Muhammad Ashraf alias Kala replied as under:- "I had no motive whatsoever to commit the murder of the deceased. The occurrence is shrouded in mystery. Some unknown persons injured the deceased. Riaz Cabin Man has been withdrawn by the prosecution who could disclose the real circumstances. The injured was taken by the police to the hospital and was unconscious throughout and was not able to utter a single word. Sultan and Nazir Ahmad P. Ws. Out of malice and all to all have fabricated the evidence of so-called statement of the deceased, Wajtakkar, the evidence of motive and extra judicial confession after many days of the occurrence." ' The appellant Tariq Mehmod alias Ghanti also denied the allegations of the prosecution levelled against him and claimed his innocence, in his statement recorded under section 342 of Cr.P.C. In answer to the question, why this case against you and why the P.Ws. Have deposed against you, the appellant Muhammad Asghar replied as under:-- "I had no motive whatsoever to commit the murder of the deceased. The occurrence is shrouded in mystery. Some unknown persons injured the deceased. It is night murder case, Riaz Cabin Man has been withdrawn by the prosecution who could disclose the real circumstances. The injured was taken by the police to the hospital and was unconscious throughout and was not able to utter a single word. Sultan and Nazir Ahmad P. Ws. Out of malice and all to all have fabricated the evidence of so-called statement of the deceased, Wajtakkar, the evidence of motive and extra judicial confession after many days of the occurrence." ' Neither the appellants made statements under section 340(2) of Cr.P.C. Nor they produced any evidence in their defence. The trial culminated into conviction and sentence of the appellant as mentioned earlier. 5. The learned counsel for the appellants, in support of this appeal, contends that in fact it was an unseen occurrence, which took place at around 9-30 p.m., in winter season, and no source of light is mentioned in the F.I.R. (Exh.PA/ 1); that the statement of the complainant is based on the information provided by one Riaz Cabin Man of Railway Station, Farooqabad, but the said Riaz did not appear before the learned trial Court; that the prosecution case is based on circumstantial evidence; that it is the case of Nazir Ahmad (P.W.1) that the information regarding the death of Muhammad Ramzan was provided by one Munir Ahmad to his wife, but neither the said Munir Ahmad nor the wife of Nazir Ahmad (P.W.1) appeared before the learned trial Court; that so far as the dying declaration of Muhammad Ramzan (deceased), allegedly made before Nazir Ahmad (P.W.1) and Sultan Ahmad (P.W.3) is concerned, the learned counsel for the appellants contends that Muhammad Ramzan (deceased) was not even in a position to speak, because of the injuries sustained by him were on his neck, and this fact is confirmed by Dr. Muhammad Afzal (P.W.10) and Dr. Humayun Siddique (P.W.11); that the statements of Nazir Ahmad (P.W.1) and Sultan Ahmad (P.W.3) are belied from the other circumstances of the case, as their statements were recorded on 17-1-2004 and 21-1-2004, respectively, but the inquest report (Exh.PH), which was prepared on 18-1- 2004 contains the same facts as are mentioned in the F.I.R. (Exh.PA/1) in the column of Mukhtasir Halat Muqadima' (brief history of the case) and even the site plan (Exh.PF), which was prepared by Muhammad Riaz Draftsman (P.W.7) on 23-1-2004, does not contain the name of any of the appellants; that it is the case of Nazir Ahmad (P.W.1) and Sultan Ahmad (P.W.3) that the deceased Muhammad Ramzan informed them that it was Muhammad Ashraf alias Kala appellant, who fired at him and Tariq Mahmood alias Ghanti appellant took him into his lapha', but their statements are belied from the documentary evidence, produced by the prosecution itself, as the deceased Muhammad Ramzan was firstly taken in an injured condition to the DHQ Hospital, Sheikhupura,
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wherefrom he was referred to Mayo Hospital, Lahore, and he was medically examined by Dr. Humayun Siddique (P.W.11), who prepared his operation notes (Exh.PK), but in the said MLR (Exh.PL), all the material columns such as, name of the relative of the injured, time of examination etc., have been left blank. So far as the evidence of Wajtakkar furnished by Sultan Ahmad (P.W.3) is concerned, the learned counsel for the appellants contends that the same is not confidence- inspiring, because at the relevant time of incident, both the appellants were allegedly present in a white coloured car, which was allegedly driven by Tariq Mahmood appellant, but he has not stated anything that any of the appellants was carrying anything in his hand and moreover the place of alleged Wajtakkar is far away from the place of occurrence and even otherwise in the foggy night of winter season, it was not possible to identify the appellants; that so far as the evidence of extra- judicial-confession is concerned, the learned counsel for the appellants contends that there is nothing on the record to show that what prompted the appellants for making confession before Khurshid Ahmad (P.W.9), as he was not having any social status. Moreover, his statement was recorded on 11-1-2005, i.e, after the arrest of the appellants in this case, and he has himself admitted that his statement was recorded by the police after 25/26 days of the occurrence. As far as the recovery of pistol (P.4), allegedly recovered at the instance of the appellant Muhammad Ashraf alias Kala and positive report of FSL (Exh.PU) are concerned, the learned counsel for the appellants contends that the same is not helpful for prosecution, as it has come on the record through the statement of Zulfiqar Ali Head Constable (P.W.4), that he took crime empty and deposited the same in the office of FSL on 9-2-2004, whereas, it is the case of the prosecution that the appellant Muhammad Ashraf alias Kala was arrested on 8-2-2004 by Muhammad Bakhsh SI- (P.W.15); that there is no evidence that the crime empty was deposited in the Malkhana', as the relevant column of register No,19 was blank; that even otherwise, this evidence is only of corroborative in nature, and it is relevant and material if the other prosecution evidence is accepted; that there is no evidence to prove the motive as alleged by the prosecution, therefore, this appeal may be accepted and the appellants may be acquitted from the charges; 6. Conversely, the learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant opposes this appeal on the grounds that had there been any enmity or malice on the part of the complainant and the other witnesses, the appellants could have easily been named in the F.I.R. (Exh.PA./1), as they are closely related to the deceased (Muhammad Ramzan), Nazir Ahmad (P.W.1) and Sultan Ahmad (P.W.3) and it has also come on the record that the deceased Muhammad Ramzan was helping the appellant Muhammad Ashraf alias Kala, because he was a pious man; that the prosecution has fully proved its case on the basis of evidence available on the record. So far as the dying declaration of Muhammad Ramzan (deceased) is concerned, the learned counsel for the complainant contends that the injured Muhammad Ramzan, received firearm injury on his neck and as such, was not expected to describe all the details of the incident, however he has categorically stated before Nazir Ahmad (P.W.1) and Sultan Ahmad (P.W.3) that it was the appellant Muhammad Ashraf alias Kala, who caused firearm injury, which hit at his neck, whereas, the other appellant Tariq Mahmood alias Ghanti took him in his Japha'; that both Nazir Ahmad (P.W.1) and Sultan Ahmad (P.W.3) are truthful witnesses, and they did not exaggerate their statements; that it has also come on the record through the statement of Muhammad Latif, Head Constable (P.W.14) that Nazir Ahmad (P.W.1) and Sultan Ahmad (P.W.3) came at the spot and took the deceased Muhammad Ramzan to DHQ Hospital, Sheikhupura in an injured condition; that the dying declaration of Muhammad Ramzan (deceased) made before Nazir Ahmad (P.W.1) and Sultan Ahmad (P.W.3) is also corroborated by the evidence of Wajtakkar furnished by Sultan Ahmad (P.W.3) and evidence of extrajudicial confession provided by Khurshid Ahmad (P.W.9), who is an independent witness; that the recovery of weapon of offence i.e, pistol
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(P.4) from appellant Muhammad Ashraf alias Kala and positive report of FSL (Exh.PU) fully connect the appellant namely Muhammad Ashraf alias Kala with the commission of crime. As far as motive is concerned, the learned counsel for the complainant contends that it has duly been proved through the statements of Nazir Ahmad (P.W.1) and Sultan Ahmad (P.W.3), therefore, appeal of the appellants may be dismissed and murder reference be answered in the affirmative. 7. We have heard the arguments of the learned counsel for the appellants, and the learned counsel for the complainant, as well as, learned Deputy Prosecutor-General, and have also gone through the evidence available on the record, with their able assistance. 8. The occurrence in this case as per F.I.R. (Exh.PA/1) took place on 16-1-2004, at 21-30 p.m., at West Cabin Railway Station Farooqabad. The matter was reported to the police through application (Exh.PA) on the same day at 11-00 p.m., whereas, the formal F.I.R. (Exh.PA/1) was chalked out on 17-1- 2004, at 8-20 p.m., by Muhammad Latif (P.W.14). The Police Station, Railway Police, Faisalabad, District Sheikhupura, was situated at a distance of 87 kilometers from the place of occurrence. Admittedly, there is no eye-witness of this incident and the prosecution case is based on circumstantial evidence, which consists of (1)-Wajtakkar, (2)-dying declaration, (3)-motive, (4)- extra-judicial confession, and (5)-recovery of pistol (P.4) allegedly from the possession of Muhammad Ashraf alias Kala appellant, and positive report of FSL (Exh. PU). ' Since the prosecution case is based on the circumstantial evidence, therefore, utmost care and caution is required for reaching at the just decision of the case. By now, it is settled that in such like cases, the chain link should be so inter-connected with each other that its one end touches the dead body while the other end goes around the neck of the accused and if any chain link is missing then its benefit should be given to the accused. In this regard, guidance has been sought from the judgments of the learned apex Court of the country reported as THE STATE v. MANZOOR AHMAD (PLD 1966 Supreme Court 664), ASADULLAH and another v. STATE and another 1999 SCM R 1034, CH. BARKAT ALI v. MAJOR KARAM ELAHI ZIA AND ANOTHER (1992 SCM R 1047), SARFRAZ KHAN v. THE STATE (1996 SCM R 188), ALTAF HUSSAIN v. FAKHAR HUSSAIN AND ANOTHER (2008 SCM R 1103), IBRAHIM AND OTHERS v. THE STATE (2009 SCM R 407) and MUHAMMAD HUSSAIN v. THE STATE (2011 SCM R 1127). 9. Keeping in view the parameters, laid down in the above-mentioned judgments, we will discuss each part of the prosecution evidence, separately. (1)-WAJTAKKAR. 10. The evidence of Wajtakkar has been furnished by Sultan Ahmad (P.W.3). The said witness, is real brother of Muhammad Ramzan (deceased). According to his statement, on the day of occurrence i.e, 16-1-2004, at about 8-30 p.m., he and Muhammad Ramzan (deceased), after performing their duties alighted from the train at Farooqabad Railway Station. His bicycle was lying in the railway quarters, whereas, the bicycle of the deceased Muhammad Ramzan was lying in the cabin of Railway Station. He has further stated that after taking their bicycles, they used to reassemble at `Phatek' No,47. On the day of occurrence, he was waiting for his brother Muhammad Ramzan at the specified place. After some time, a white coloured car bearing Registration No,706 came from cabin side and went towards the soaling side, after crossing railway `Phatek' No,47. He has next stated that the said car was being driven by Tariq Mehmood appellant, who was accompanied by Muhammad Ashraf appellant. After some time, he (Sultan Ahmad (P.W.3) went to the cabin to know the situation as to why his brother Muhammad Ramzan (deceased) had not yet come. When he reached near the cabin, he heard the hue and cry of his brother Muhammad Ramzan (deceased). He has further stated that he started weeping, when Riaz came at the spot and consoled him. After a short while, his brother Nazir Ahmad (P.W.1) and Yousaf reached at the spot. According to the said witness, Muhammad Ramzan (deceased) was shifted to the Civil Hospital, Sheikhupura in a car for. His medical treatment. On the way, Muhammad Ramzan (deceased)
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stated before them that he was shot by Muhammad Ashraf appellant, whereas, Tariq Mehmood co-accused caught hold of him; Sultan Ahmad (P.W.3), who is real brother of Muhammad Ramzan (deceased), is the sole witness of Wajtakkar. The occurrence in this case took place on 16-1-2004 at 21-30 p.m. (9-30 p.m.), whereas, the matter was reported to the police through application (Exh.PA), at 23-00 (11-00 p.m.), but neither the name of Sultan Ahmad (P.W.3) nor the name of any accused is mentioned in it, rather it is mentioned in application (Exh.PA) that Muhammad Ramzan (deceased) was injured at the hands of some unknown accused. Sultan Ahmad (P.W.3) has claimed that Riaz Cabin Man came at the spot, when he was already present near his brother Muhammad Ramzan (deceased). Had he been present at the spot, then the application (Exh.PA) should have been moved on his behalf, or at least his name and the name of accused should have been mentioned in it. His statement to the police (Exh.DB) was recorded on 21-1-2004 i.e, five days after the occurrence. No explanation whatsoever for the above-mentioned delay has been given in his statement (Exh.DB). Moreover, the presence of this witness has not been shown in the site plan (Exh.PF), which was prepared by Muhammad Riaz (P.W.7) on 23-2-2004, on the pointation of the complainant and the prosecution witnesses. Similarly, the name of any accused has also not been mentioned in the above-mentioned documentary evidence of the prosecution. All the recovery memos, i.e,, recovery memo of bloodstained earth (Exh.PB), recovery memo of empty (Exh.PC), and recovery memo of Chadar/Shoes, etc. (Exh.PD), are attested by Muhammad Ashraf Constable, Police Post, Railway Police, Farooqabad, Riaz Ahmad Cabin Man of Railway Station Farooqabad, and Muhammad Awais, Station Master, Railway Station, Farooqabad. Neither Sultan Ahmad (P.W.3) nor Nazir Ahmad (P.W.1) has been cited as a witness in the above-mentioned recovery memos. The name of Sultan Ahmad (P.W.3) or Nazir Ahmad (P.W.1) has not been mentioned in the relevant column of Medico-legal Report (Exh.PL) of Muhammad Ramzan deceased). The column of name of the relative or friend, who had brought Muhammad Ramzan (deceased) to the Hospital has been left blank in the above-mentioned document, which indicates that Sultan Ahmad (P.W.3) or Nazir Ahmad (P.W.1) were not present at the time of occurrence, and that's why, their names were not mentioned in the above-mentioned documents. Similarly, in the column of Mukhtasir Halat Muqadima' (brief history of the case), of the inquest report (Exh.PH), the name of Sultan Ahmad (P.W.3) and Nazir Ahmad (P.W.1) were not mentioned in any context. Moreover, it is mentioned in the said document (Exh.PH) that Muhammad Rarnzan (deceased) was injured by some unknown accused. The Inquest Report (Exh.PH) was prepared on 18-1-2004, and the names of above- mentioned prosecution witnesses have not been mentioned in it. According to the evidence of Sultan Ahmad (P.W.3), he reached at the spot before the arrival of Riaz Cabin Man of Railway Station, Farooqabad, but said Riaz was never produced before the learned trial court to corroborate the said version of Sultan Ahmad (P.W.3). It is the case of the prosecution that said Riaz provided the information of death of Muhammad Ramzan to the complainant Muhammad Awais (P.W.2), who reported the matter to the police thereafter. The said Riaz was a very natural witness as it was he, who informed the complainant that Muhammad Ramzan was injured by the firing of some unknown, but his evidence was withheld by the prosecution, therefore, presumption as envisaged under Article 129(g) of the Qanun-e-Shahadat Order, 1984, can be drawn against the prosecution, and it is presumed that had he been produced by the prosecution, he would have not supported the prosecution version put-forth by Sultan Ahmad (P.W.3). In the light of above discussion, the prosecution evidence of Wajtakkar is not worthy of reliance. (2)-DYING DECLARATION AND MEDICAL EVIDENCE. 11. This evidence of dying declaration has been produced through Nazir Ahmad (P.W.1) and Sultan Ahmad (P.W.3). The evidence of Wajtakkar produced by Sultan Ahmad (P.W.3) has already been discussed earlier. Nazir Ahmad (P.W.1) is also real brother of Muhammad Ramzan (deceased). He has stated before the learned trial Court that on 16-1-2004, he was present at his Dera, where he
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got the information that Muhammad Ramzan (deceased) has been injured and thereafter, reached at the place of occurrence and took Muhammad Ramzan (deceased) in an injured condition to DHQ, Hospital, Sheikhupura. The Doctor referred Muhammad Ramzan (deceased) to Mayo Hospital, Lahore, and on the way from Sheikhupura to Mayo Hospital, Lahore, Muhammad Ramzan stated that he received injury due to the fire shot of Muhammad Ashraf alias Kala appellant, whereas he was taken into Japha' by Tariq co-accused. Admittedly, Muhammad Ramzan (deceased) received firearm injuries on his neck. The prosecution produced medical evidence through three prosecution witnesses namely, Dr. Muhammad Afzal (P.W.10), Dr. Humayun Siddique (P.W.11), and Dr. Muhammad Ashraf Javed (P.W.12). The statements of the above- mentioned witnesses regarding the condition of injured Muhammad Ramzan (deceased) for making a dying declaration,…
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