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Petitioner: MUHAMMAD BOOTA and 3 others VS Respondent: The STATE and another
Court Name: Lahore High Court Judge(s): Qazi Muhammad Amin Ahmed, Ch. Abdul Aziz Title: MUHAMMAD BOOTA and 3 others vs The STATE and another Case No.: Criminal Appeal No, 1764 and Murder Reference No, 531 of 2011 Date of Judgment:2017-10-26 Reported As: 2018 P Cr. L J 372 Result: Sentence reduced
JUDGMENT
JUDGMENT CH. ABDUL AZIZ, J.---This judgment shall dispose of Criminal Appeal No,1764 of 2011 (filed by appellants namely Muhammad Boota, Muhammad Rafi alias Labha, Muhammad Mansha and Muhammad Maallk against their conviction) and Reference sent by trial court under section 374 of Criminal Procedure Code, 1898 which is numbered as Murder Reference No,531 of 2011, for confirmation or otherwise of sentence of death awarded to above-named appellants. The appeal as well as the murder reference is originating from the judgment dated 30.09.2011 passed by the learned Additional Sessions Judge, Ferozewala, on a trial held in case FIR No,556 dated 07.11.2006 for the offence under sections 302, 324, 148 and 149, P.P.C. registered at Police Station Narang, District Sheikhupura. Learned trial court through the impugned judgment convicted and sentenced the appellants as under:- 1. Muhammad Mansha and Muhammad Maalik (appellants) Under section 302(b), P.P.C. and awarded death sentence for committing Qatl-i-amd of Muhammad Aslam (deceased). Both these appellants were also directed to pay Rs,50,000/- each as compensation to the legal heirs of Muhammad Aslam (deceased) under section 544-A, Cr.P.C. and in default of payment of the said amount, the appellants were ordered to further undergo SI for six months. 2. Muhammad Boota and Muhammad Rafi (appellants) Under section 302(b), P.P.C. and awarded death sentence for committing Qatl-i-amd of Shazia Bibi (deceased). Both these appellants were also directed to pay Rs,50.000/- each as compensation to the legal heirs of Shazia Bibi (deceased) under section 544-A, Cr.P.C. and in default of payment of the said amount, the appellants were ordered to further undergo SI for six months.
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It is important to mention here that Khalid Hussain (co-accused), who though was tried separately but was convicted with a separate judgment of even date in following term. Under section 302(b), P.M. to undergo imprisonment for life. Under section 324, P.P,C, to undergo seven years RI and to pay fine of Rs,5,000/- and in default of payment of fine Khalid Hussain (co-convict) was ordered to further undergo one month's SI, Under section -F(iii) P.P.C to pay Re.10,000/- as Daman to Nazir (injured). Both the sentences of imprisonment of Khalid Hussain (co-convict) were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was also extended in his favour, 2. Briefly stated the case of the prosecution as divulged by Muhammad Akram complainant (PW.7) in FIR (Exh.PB/1) is to the effect that on 06.11.2016, his paternal nephew namely Muhammad Arif and one of the appellants namely Muhammad Boota quarreled with each other while grazing cattle and were separated by one Riasat Ali son of Muhammad Iqbal; that both of them proceeded to their house along with cattle; that in the evening when Muhammad Arif took meal in the fields for his uncle Nazeer, he was again intercepted by Muhammad Boota etc. and gave him beating; that the resident of the vicinity intervened and rescued Muhammad Arif from the clutches of Muhammad Boota etc; that on the same night, Muhammad Boota etc. resorted to firing at the house of Muhammad Aslam; that on the following morning at about 8:00 a.m., Muhammad Latif armed with Danda, Khadim armed with .7 mm rifle, Muzaffar armed with .7 mm rifle, Mansha armed with pump action, Maalik armed with .7 mm rifle, Boota armed with .8 mm rifle, Labha armed with .8 mm rifle, Shabbir armed with .303 bore, Bashir armed with .12 bore, Naeem armed with pistol, Kashif armed with .44 bore, Butt armed with .44 bore, Shehzad armed with .8 mm rifle arrived at the house of Muhammad Aslam and in furtherance of their common object started firing at the inmates; that the fire shots of Muhammad Mansha and Muhammad Maalik hit Muhammad Aslam at his left arm and abdomen; that the shots fired by Muhammad Boota and Muhammad Labha hit Mst. Shazia Bibi at her left arm, chest and abdomen; that one of the shot fired by Muhammad Labha also hit Irshad Bibi wife of Nazir Ahmad, whereas the fire shots of Khadim Hussain and Muhammad Muzaffar hit Nazir Ahmad. Muhammad Aslam and Shazia Bibi succumbed to the injuries at the spot, while Nazir Ahmed and Irshad Bibi received serious injuries. Both the injured were shifted to Mayo Hospital by Liquat Ali son of Muhammad Hussain and Muhammad Aslam son of Shafi Muhammad. Besides complainant the occurrence was witnessed by Muhammad Arif, Muhammad Tariq and Abdul Aziz. The accused persons fled away while making aerial firing. 3. After the registration of crime report (Exh.PB/1), the investigation of this case was entrusted to Muhammad Akram SI (PW.16), who immediately thereafter proceeded to the crime scene. During the preliminary investigation conducted by him, Muhammad Akram SI visited the place of occurrence, conducted spot inspection, prepared inquest reports of both the deceased and the injury statements of the injured persons. He also secured blood stained earth from respective places through recovery memos and got prepared the site plans without scale. He also recorded the statements of the witnesses under section 161, Cr.P.C. On 23.01.2007, he arrested the accused persons including the appellants namely Muhammad Boota, Muhammad Rafi, Muhammad Mansha, Muhammad Maalik, Shabbir Ahmad, Muhammad Naeem and Muhammad Kashif. During the course of investigation, Muhammad Boota, Muhammad Rafi, Muhammad Mansha and Muhammad Shabbir accused led to the recovery of their respective crime weapons i,e, rifle 8 mm (P.7), rifle 8 mm (P.8) along with three live bullets (P.9/1-3), rifle .303 bore (P.2) along with live bullets (P.3/1-3), pump action .12 bore (P.1) which were taken into possession through separate recovery memos (Exh.PG, Exh.PH, Exh.PD and Exh.PC respectively). On 11.02.2007, he recorded the statement of Muhammad Arshad 911/C regarding the execution of the proclamation issued against accused Muzaffar Hussain, Muhammad Shahzad and Muhammad Atif Butt. On the basis of the investigation conducted by Muhammad Akram SI (PW.16), the SHO prepared incomplete report under section
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173, Cr.P.C. 4. The prosecution, in order to prove its case against the appellant produced eleven PWs which includes Muhammad Arif (PW.1) Nazeer Ali (PW.6) and Muhammad Akram complainant (PW.7), who are the eye-witnesses of the occurrence, Dr. Zahida Noor (PW.14), Dr. Muhammad Javed Munir Malik (PW.17) and Dr. Hussain Farooq (PW.18) who furnished the medical evidence and Muhammad Akram SI (PW.16) who conducted the investigation of this case. The remaining prosecution witnesses more or less were formal in nature. 5. Dr. Zahida Noor (PW.14) on 07.11.2006 conducted the postmortem examination of the dead body of Mst. Shazia Bibi (deceased) and observed the following injuries:- 1. A penetrating wound of entry measuring 0.5 x 0.5 cm with inverted margin in mid front of chest. 2. A penetrating wound of entry measuring 0.5 x 0.5 cm in front right side of lower chest. 3. An abrasion 1.5 x 1 cm on lateral aspect of right elbow. According to Dr. Zahida Noor, all the injuries were ante-mortem and were caused by firearms. She opined that the death in this case occurred due to shock, haemorrhage and cardio respiratory failure caused by injuries Nos,1 and 2. According to her, these injuries in the ordinary course of nature were sufficient to cause death of a normal person. The probable time between injury and death was stated to be immediate and between death and post-mortem was described as within 24-hours. On 07.11.2006 at about 10:30 a.m., Dr. Muhammad Javed Munir Malik (PW.17) conducted the medico legal examination of Nazir Ahmad and observed the following injuries:- 1-A. Punctured wound 0.5 x 0.6 cm on posterior side of left forearm, inverted margins 9 cm below left elbow DNP. 1-B. Punctured wound 0.8 x 0.8 cm on medial side of left forearm had avert margins and 8 cm below left elbow was noted DNP. 2-APunctured wound 0.7 x 0.7 cm on lateral side of left forearm inverted margins and 6 cm below left elbow was noted DNP. 2-BPunctured wound 0.8 x 0.8 cm rounded shape had averted margins on medial side of left forearm 5 cm below left elbow was noted DNP. 3-APunctured wound 0.5 x 0.5 cm on the lateral side of left arm 16 cm below top of shoulder had inverted margins was noted DNP. 3-BPunctured wound 0.6 x 0.6 cm on posterior side of left arm had averted margins and 17 cm below the top of shoulder was noted. 4. Graze wound 3.5 cm on back of left forearm 7.5 cm below elbow as noted. The wound was muscle deep. According to the doctor, injuries Nos, 1 . 2 and 3 were kept under observation, whereas injury No,4 was declared as "ghayr-jaifahmutalahimah". These injuries were described to be fresh and were caused by firearms. On 07.11.2006, Dr. Hussain Farooq (PW.18) conducted the postmortem examination of the dead body of Muhammad Aslam (deceased) and observed the following injuries:- 1, A penetrated wound 0,5 x 0,5 cm was present on medial aspect of left upper arm, 2. A penetrated wound 0.5 x 0.5 cm was present on left side of chest in mid axillary line. 3. A penetrated wound 0.5 x 0.5 cm was present on lateral aspect of left elbow joint. 4. A penetrated wound 1 x 1,5 cm was present on back of left elbow joint. 5. A penetrated wound 0,5 x 0.5 cm was present on left side of abdomen in left hypochondrium. It was opined by Dr, Hussain Farooq that all the injuries were ante mortem and were caused by firearm. He further opined that the death in this case occurred due to haemorrhage and shock caused by injuries Nos,1, 2 and 5. According to him, these injuries were sufficient to cause death in ordinary course of nature. The probable time between injury and death was stated to be few
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minutes and between death and post-mortem was described as 11 to 14 hours. 6. After the closure of prosecution evidence, the learned trial court examined the appellants and their co-accused under section 342, Cr.P.C. They in response to question "why this case against you and why the PWs have deposed against you", unanimously replied as under:- "I have been falsely involved in this case on account of party faction in the village. The PWs were interested and related inter se and they have deposed falsely against me. I did not participate in the occurrence." None of the appellants opted to appear as a witness in his own defence under section 340(2) of Cr.P.C. However, they produced Muhammad Afzal and Farid Hussain as DW.1 and DW.2 in their defence. 7. On the conclusion of trial, the appellants were convicted and sentenced as afore-stated. Hence, the instant appeal and Murder Reference. 8. It is contended by learned counsel for the appellants that though the crime report of the instant case appears to have been registered promptly yet the attending facts and circumstances of the case suggest otherwise; that at the time of the registration of FIR, the prosecution came forward with a specific motive but during trial miserably failed to prove the same; that the ocular account is furnished by the witnesses who failed to substantiate their presence at the crime scene; that Irshad Bibi, who was also allegedly injured in the incident, hence, was the most important witness, was withheld by the prosecution; that there is a contradiction between medical and ocular evidence which renders the ocular account unworthy of any credence; that in the instant case as many as thirteen persons were implicated as accused and were saddled with the responsibility of having resorted to indiscriminate firing, however, the empties recovered from the crime scene do not commensurate with the number of assailants; that the appellants stand convicted in the instant case on the basis of general allegation of having fired at the victims and none of them is attributed any specific injury; that there are numerous discrepancies and contradictions arising out of the plain reading of prosecution evidence, the benefit of which was withheld from the accused persons. 9. On the other hand, learned DPO assisted by learned counsel for the complainant strongly controverted the arguments advanced by learned counsel for the appellants and submitted that the instant case is based on a first information report which was promptly registered; that in such promptly reported crime report, the appellants are not only nominated but are also ascribed the specific role of having fired at the deceased and injured persons; that the ocular account in the instant case is furnished by the inmates of the house where the massacre took place; that the roles attributed to the appellants are duly supported by the medical evidence brought on record; that the instant occurrence is of broad day light and the parties are previously known to each other, hence, there is no question of mistaken identification; that since the appellants committed the cold blooded murder of two persons and that too on a trivial dispute, hence, deserve no mercy. 10.Arguments heard. Record perused. 11.The case of the prosecution, so to speak, primarily hinges upon the ocular account furnished by the three witnesses namely Muhammad Arif (PW.1), Nazeer Ali (PW.6) and Muhammad Akram (PW.7), the medical evidence brought on record by Dr. Zahida Noor (PW.14), Dr. Muhammad Javed Munir Malik (PW.17) and Dr. Hussain Farooq (PW.18). The prosecution sought corroboration from the motive, in support of which Muhammad Arif (PW.1) appeared in the dock. 12.It evinces from the record that the occurrence, which gave rise to the registration of the instant case took place at 8:00 a.m. in area of vicinity, known as Awan Muslim, situated within the territorial jurisdiction of Police Station Narang, District Sheikhupura. According to Column No,4 of First Information Report (Exh.PB/1), the police station is situated at a distance of eleven miles from the crime scene. As per record, the occurrence was reported at Police Station Narang by Muhammad
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Akram (PW.7) through an application (Exh.PB) at about 8:30 a.m. From above, it follows that the occurrence, with all its necessary details was reported to police without an amount of unnecessary delay. The prompt reporting of a murder occurrence, in the absence of some exceptional circumstances, excludes the possibility of elements of fabrication or concoction of facts and false implication. 13.A wade through the prosecution case reveals that as many as thirteen persons were saddled with the responsibility of having participated in the commission of the crime, during which two persons namely Shazia Bibi and Muhammad Aslam lost their lives, whereas Nazeer Ahmed (PW.6) and Irshad Bibi (given up) received firearm injuries. However, an in depth analysis of the case reveals that out of thirteen assailants only six namely Muhammad Mansha, Muhammad Malik, Muhammad Boota, Muhammad Rafi alias Labha, Muhammad Muzaffar (convicts/appellants) and Khadim Hussain (PO) were burdened with the blame of having caused injuries to the victims. It further divulges from the record that in order to provide the detail of the occurrence, three witnesses namely Muhammad Arif (PW.1), Nazeer Ali (PW.6) and Muhammad Akram (PW.7) entered in the dock. It will not be out of place to mention here that out of these three witnesses, one namely Nazeer Ali (PW.6) also received injuries during the occurrence. Nazeer Ali was medically examined by Dr. Muhammad Javed Munir Malik (PW.17) and that too on the very day of occurrence, during which he noted three firearm entry wounds on different parts of his person. Needless to mention here the injuries on the person of a prosecution witness, in the absence of some exceptional circumstances, are generally regarded as stamp of his presence at the crime scene. Likewise, it is further noticed that all the three eye-witnesses are not only residents of the same vicinity but are inmates of the house where the blood bath took place. We have minutely scanned their testimony and have not been able to come across any material which may show, even remotely that as per their routine, they should not have been present at the crime scene. This feature of the prosecution case makes the three PWs as natural witnesses of the occurrence. In the above backdrop, we have also gone through their statements and have noticed that all of them, unanimously held the appellants, responsible for having caused injuries on the person of the two deceased as well as the injured persons. It spells out from the record that Muhammad Boota and Muhammad Rafi alias Labha (appellants) are alleged to have caused firearm injuries on the arms, chest and abdomen of Shazia Bibi (deceased), whereas, Muhammad Mansha and Muhammad Malik (appellants) are attributed the role of having caused firearm injuries on the left arm and abdomen of Muhammad Aslam (deceased). In addition, Muhammad Rafi alias Labha (appellant) is also ascribed the role of inflicting an injury on the left arm of Irshad Bibi (given up PW). So far as Muzaffar Hussain (separately tried and appellant in Criminal Appeal No,230-J of 2015) is concerned, he is burdened with the blame of having caused injury on the left arm of Nazeer Ali (PW.6). Admittedly, the occurrence took place in the broad day light and that too in the heart of the village. In such a situation no imagination of the occurrence having remained unwitnessed can be drawn, more so, when Nazeer Ali (PW.6) survived the aggression of the assailants and lived to tell the tale of the occurrence. We have also noticed that the appellants as well as the witnesses, being village folk, were well known to each other, hence, even there is no question of any mistaken identification. Likewise, we have also gone through the cross-examination conducted on the eye- witnesses as well as the statements of the appellants recorded under section 342, Cr.P.C. and have not been able to come across any material, even frail in nature, which may give rise to the possibility of false implication or justification for substitution of real culprits. Though the witnesses were cross-examined by the defence from every angle of the case but remained unshaken from its wind and stood steadfast like an oak. On one hand, they gave no leverage to the defence and on other hand provided all the necessary details of the actual occurrence as well as of the post occurrence events. Though the PWs were closely related to the ill-
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fated deceased persons yet were not having enmity of any untoward nature towards either of the appellants thereby eliminating the chance of uncalled for false implication. In this regard, it will be of immense advantage to reproduce an extract from the statement of Muhammad Arif (PW.1) which is as under:- "There was no dispute between us and the accused persons prior to the present occurrence. We were having cordial relations prior to the occurrence of this case." We deem it appropriate to mention here that though certain discrepancies and shortcomings exist on the record yet the same are found to be trivial in nature having no adverse effect on the merits of the case. While holding so, we are not oblivious of the fact that the ocular account is furnished by the witnesses who are uneducated and rusty villagers, having no know-how about the legal intricacies. It will not be just to decide the fate of a case negatively, on the basis of these minor discrepancies. It is of immense importance to mention here that the benefit of doubt, as per settled principles of criminal jurisprudence, is always to be extended to an accused. However, such doubt must be reasonable enough, so as to attract every prudent mind having sufficient legal acumen and must not be artificially stretched with the sole purpose of passing a judgment of acquittal only. While making appraisal of evidence and pronouncing a final judgment, the courts must not lose sight of the fact that they owe heavy duty towards the legal heirs of the victims as well as are also obliged to administer justice. For this reason, it is expected from the courts to have resort to more balanced and cautious approach while deciding the fate of a case more so entailing capital sentence. In this backdrop, the in-depth analysis of the ocular account has led this Court to hold that the eye-witnesses besides being natural, their testimony is also found to be trustworthy and ringing true and is not giving rise to any doubt. 14. For the purposes of safe administration of justice and that too with certainty, we have also painstakingly gone through the medical evidence furnished in the instant case. It unearthed from the perusal of the medical evidence that the roles assigned to respective appellants are being duly supported from it. According to the eye-witnesses, Boota and Rafi (appellants) caused firearm injuries on the arms, chest and abdomen of Shazia Bibi (deceased), whereas Mansha and Maalik (appellants) inflicted firearm injuries on the left arm and abdomen of Aslam (deceased). The autopsy over the dead body of Shazia Bibi (deceased) was conducted by Dr. Zahida Noor (PW.14), whereas Muhammad Aslam was subjected to postmortem examination by Dr. Hussain Farooq (PW.18). We have intriguingly observed that not only the allegations arising out of the ocular account are being duly supported by the medical evidence rather we have further observed that there are certain injuries on the person of Muhammad Aslam (deceased), which are not attributed to any of the assailants. Such aspect of the matter has rendered the ocular account more confidence inspiring as despite having an opportunity of attributing these injuries to other assailants, the witnesses opted not to do so. 15.As per record, during the course of investigation, Muhammad Boota and Muhammad Rafi alias Labha got recovered .8 MM rifles, whereas Muhammad Mansha and Muhammad Maalik led to the recovery of .303 rifle and .12 bore shot gun respectively. Such circumstance was portrayed by the prosecution as sufficient corroboratory evidence. Since no crime empty was recovered during spot inspection, hence, the report of Forensic Science Laboratory, Punjab Lahore (Exh.PFF) is only to the effect that the weapons are in working condition. In our view, such report is inconsequential in nature and helps the cause of none. 16. The end result of what has been discussed above, we are of the firm opinion that the guilt of the appellants is well-established from the ocular account furnished by the three eye-witnesses who narrated straightforward and trustworthy detail of the occurrence. Their conduct of non- attribution of certain injuries on the person of Muhammad Aslam (deceased), which admittedly were not ascribed to any of the assailants, has further fascinated us to place explicit reliance on
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their testimony. The supporting medical evidence has further led this Court to draw an ultimate conclusion about the guilt and involvement of the appellants in the commission of crime. In the above backdrop, we are persuaded to hold that no legitimate exception regarding the finding of the learned trial court, except the quantum of sentence, can be taken. 17. So far as the sentence of death awarded to the appellants is concerned, we have given due consideration to it and have also attended to the arguments of the learned law officer and the learned counsel for the complainant, whereby they canvassed the sentence of death as normal penalty for murder by referring section 367(5) of Cr.P.C. In order to give a conclusive finding on the quantum of appropriate sentence to be awarded to the appellants as well as regarding the above arguments of the learned law officer, we consider it appropriate to reproduce section 367(5) of Cr.P.C., which is as under:-"367. Language of judgment: Contents of judgment. ....................................................... (5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, and Court shall in its judgment state the reason why sentence of death was not passed." The bare perusal of the foregoing provision gives an apparent reflection that the sentence of death is the normal penalty of murder. However, it is of paramount importance to mention here that the provision of section 367(5), Cr.P.C., is to be read in conjunction with section 302 of Pakistan Penal Code, 1860. We are not oblivious of the fact that at the time of enactment of Pakistan Penal Code (the then Indian Penal Code), the offence under section 302 was made punishable with sentence of death or transportation for life. However, at later stage, through Law…
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