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Petitioner: MUHAMMAD KHAN and others VS Respondent: ZAKIR HUSSAIN and others
Court Name: Supreme Court of Pakistan Judge(s): Mir Hazar Khan Khoso, Fazal Ilahi Khan, Saleem Akhter Title: MUHAMMAD KHAN and others vs ZAKIR HUSSAIN and others Case No.: Criminal Appeals Nos. 222 and 223 of 1993, Date of Judgment:1995-07-25 Reported As: PLD 1995 Supreme Court 590 Result: Appeals dismissed
JUDGMENT
JUDGMENT MIR HAZAR KHAN KHOSO, J.---It is case of the prosecution that on the morning of 6th of April, 1988, complainant Muhammad Khan, P.W.11, Sher Muhammad, P.W.12 and Khalid went to meet Zulfiqar deceased in his house at Sangla Hill. They were informed that he had gone to grain market. They went to the market where met him. In company of the witnesses the deceased moved towards his house. At about 10-00 a.m. When they reached in-between Exchange Chowk and Railway Gate, all of sudden Muhammad Nawaz armed with .12 bore gun, Muhammad Khalique, Mehdi Hassan and Muhammad Zafar armed with .12 bore carbines and Zakir Hussain armed with pistol appeared. Muhammad Khalique shouted that Zulfiqar should not go alive. Muhammad Nawaz fired at his `Kanpati'. He fell down. Muhammad Khalique fired at his right ear. Muhammad Zafar fired on back of his chest. Zakir Hussain and Mehdi Hassan continued on firing and threatening the witnesses to keep away. Then Zakir Hussain, Mehdi Hassan and Muhammad Zafar decamped on Motorcycle No,4018/LEO, towards Railway Gate, Muhammad Nawaz and Abdul Khalique followed them. Zulfiqar died at the spot. 2.The motive advanced for the murder was that in the year 1982 Nazra father of Muhammad Khalique was murdered. Muhammad Khalique registered case against complainant Muhammad Khan and others; but only Muhammad Anwar and Muhammad All were challaned and the case was still pending in the Court. 3.Complainant Muhammad Khan, P.W.11, went to Police Post, Sangla Hill, where his statement, Exh.PB/1 was recorded at about 10-30 a.m. By Inspector/S.H.O., Sangla Hill, Muhammad Sadiq (P.W.13). On basis of the statement of Muhammad Khan formal F.I.R., Exh.PB was registered in 154, Cr.P.C. Book, at Police Station Sangla Hill at 10-35 a.m.
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4.Muhammad Sadiq, S.H.O., inspected the place of incident, prepared inquest report (Exh.PL) and injury report (Exh.PM) of deceased Zulfiqar. He sent dead body of the deceased to hospital for post- mortem. He inspected the place of occurrence, took into possession blood-stained earth and sealed it in parcel through memo. (Exh.PC), five empties of .12 bore (Exh.P5/1-5) and one empty of .30 bore (Exh.P6) sealed it in parcel vide memo. (Exh.PD), prepared rough sketch of Vardat (Exh.PO). He recorded statements of the witnesses. 5.Un the same day he arrested Zakir Hussain and Mehdi Hassan. From possession of Zakir Hussain he recovered pistol (Exh.P7), alongwith six live bullets, vide memo. (Exh.PE). From possession of Mehdi Hassan he recovered carbine (Exh.P8) alongwith eight live cartridges, vide memo. (Exh.PF). The abovesaid articles were sealed in parcels. He took into possession motorcycle (Exh.P9) vide memo. (Exh.PG). Head Constable Shahbaz Khan handed over him last worn shirt (Exh.P1), Shalwar (Exh.P2), vest (Exh.P3) of the deceased and parcel containing pellets and pads of cartridges (Exh.P4) taken out from injuries of the deceased vide memo. (Exh.PC-A). He deposited the articles with Moharrir Head Constable of the police station for safe custody and necessary action. On 16-4- 1988 he arrested Muhammad Nawaz and secured .12 bore gun (Exh.P12) alongwith live cartridges vide memo. (Exh.PK). He deposited the same with M.H.C. For safe custody and necessary action. On 17-4-1988 he arrested Muhammad Khalique and Muhammad Zafar. On 19-4-1988 draftsman Aurangzeb handed over to him site plans (Exhs.PJ and PJ/1). On 24-4-1988, at the instance of Muhammad Khalique he recovered .12 bore carbine (Exh.P10), vide memo. (Exh.PH). On the same day Muhammad Zafar led to recovery of .12 bore carbine (Exh.P11), vide memo. (Exh.PH). He deposited these articles with M.H.C. At the police station on the same day. After completion of the investigation he challaned the abovementioned five persons for trial. 6.A charge under section 302/149, P.P.C. Was framed against them but they did not plead guilty to it and claimed trial. 7.To prove the charge prosecution examined:--- P.W.1 Dr. Muhammad Rafique. He conducted post-mortem on the dead body of deceased Zulfiqar on 6-4-1988 at 2-00 p.m. He found six injuries on his person. All the injuries were ante-mortem. Three injuries were grievous and three simple. Four caused by fire-arm and two by blunt substance. The injuries were sufficient to cause his death in ordinary course of nature. The probable time which elapsed between the injuries and death was within 15 minutes and that between death and post-mortem 4 to 6 hours. Four pellets and pad were recovered from the injuries. He handed over the last worn clothes of the deceased and pellets and pad to the police. The witness was not 'cross-examined. P.W.2 H.C. Shahbaz Khan. On 6-4-1988 he recorded formal F.I.R. (Exh.PB) at the police station. Medical Officer handed over him the last worn clothes of the deceased and sealed parcel containing pellets and pad. He handed over the same to S.H.O. Vide memo. (Exh.P4). On 16-4-1988 Investigating Officer handed over him sealed parcel containing gun. On 18-4-1988 he handed over the sealed parcels and two other sealed parcels, containing carbine and pistol for onward transmission to Forensic Laboratory through Constable Zahoor Ahmad. The parcels remained untempered within his custody. The witness was not cross-examined. P.W.3 Constable Zahoor Ahmad. On 6-4-1988 he handed over dead body of deceased Zulfiqar to Medical Officer for post-mortem. On 18-4-1988 witness Shahbaz Khan handed over him three sealed parcels containing .12 bore gun, carbine and pistol and he deposited them in Forensic Laboratory on the same day. The parcels remained intact in his custody. The witness was not cross-examined. P.W.4 Bashir Ahmad. He identified dead body of the deceased at the time of post-mortem. In his presence on 6-4-1988 police collected bloodstained earth, five empty cartridges (Exh.55/1-5) and
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empty (Exh.6) of .30 bore pistol vide memo. (Exh.PD). He attested the memo. The witness was not cross-examined. P.W.5 Shaukat Ali. In his presence police arrested Zakir Hussain and Mehdi Hassan and secured pistol (Exh.P7) containing six cartridges (Exh.P7/1-6) from Zakir Hussain and .12 bore carbine (Exh.P8) with live cartridges (Exh.P8/1) from Mehdi Hassan. The pistol and the carbine were sealed in two separate parcels, vide memos. (Exhs.PE and PF). The police also secured motorcycle (Exh.P9) vide memo. (Exh.PG). On same day in his presence vide memo. (Exh.PC), last worn clothes, sealed parcel containing pellets and pad was handed over by H.C. Shahbaz Khan before the police. The witness admitted that the deceased was his 'Humzulf He admitted that his village was six miles from Sangla Hill. He admitted that on request of S.H.O. He accompanied him. P.W.6 Muhammad Shahbaz. In his presence Muhammad Khaliq and Muhammad Zafar separately led to recovery of two carbines (Exhs.P10 and P11) from two different places vide memo. (Exhs.PH and PI). He admitted that he resides six miles away from the Vardat. P,W.7 Constable Saijad Hussain. On 13-4-1988 he deposited parcels containing earth and empties in Office of the Chemical Examiner and Forensic Laboratory respectively. The parcels remained intact in his custody. He was not cross-examined. P.W.8 Constable Muhammad Zafar. On 26-4-1988 he deposited two parcels each containing a carbine in the office of Forensic Science Laboratory. The parcels remained intact in his custody. The witness was not cross-examined. P.W.9 A.S.I. Muhammad Ibrahim. On 6-4-1988, Investigating Officer handed over him sealed parcels containing blood-stained earth, empty cartridges, a carbine, a pistol, pellets, a motorcycle and last worn clothes of the deceased. He kept it in Malkhana. On 13-4-1988 he handed over parcel containing blood-stained earth and crime empties to Constable Sajjad Hussain for onward transmission to Examiners. Again on 24-4-1988 the I.O. Handed over him two sealed parcels, each containing carbine. He deposited it in Malkhana. On 25-4-1988 he handed over the same to Constable Muhammad Zafar for onward transmission to Forensic Laboratory. The parcels remained intact in his custody. In cross-examination he explained that due to emergency and non-availability of staff, parcels received by him on 6-41988 were sent on 13-4-1988. P.W.10 Aurangzeb. Draftsman. He prepared plans Exhs.PJ and PJ/1 and handed over the same to the I.O. On 19-4-1988. P.W.11 Muhammad Khan. He is real brother of deceased Zulfiqar and lives at Hameerokey Chak No,110. Zulfiqar lived in Ward No,17 of Sangla Hill Town. On 6-41988 he alongwith witnesses Sher Muhammad and Khalid went to see deceased and left village at 8-00 a.m. From (sic) they came to know that deceased had gone to grain market. They went there and met him. While returning to his house at 10-00 a.m. Between Railway Station Gate and Exchange Chowk all of sudden Muhammad Nawaz, armed with .12 bore gun, Muhammad Khaliq, Mehdi Hassan and Muhammad Zafar, armed with carbines and Zakir Hussain armed with pistol, appeared. Muhammad Khaliq raised Lalkara that Zulfiqar should not go alive. Muhammad Nawaz fired at `Kanpati' of the deceased with his gun. Zulfiqar fell down. Khaliq fired him near his right ear. Zafar fired on back of deceased. Zakir Hussain and Mehdi Hassan continued on firing and shouting to keep away. Zulfiqar died there and then. Zakir Hussain, Mehdi Hassan and Muhammad Zafar ran away on motorcycle towards Railway Gate. Muhammad Nawaz and Muhammad Khaliq followed them. He reiterated the same motive given in the F.I.R. He admitted that his village was 6-7 miles away from the place of incident. He admitted that in case of Master Asghar deceased alongwith Inspector Muhammad Sadiq was accused. He admitted that police post is less than a furlong and police station 1-1/2--2 furlongs from the place of occurrence. P.W.12 Sher Muhammad. On the day of incident he alongwith Muhammad Khan, Khalid Mahmood went to see deceased Zulfiqar, who was not in his house. They were informed that he had gone to
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grain market. They went and met him there. While "returning to his house shortly ahead of Railway Station, Muhammad Khaliq, Mehdi Hassan and Muhammad Zafar, armed with carbines, Muhammad Nawaz with .12 bore gun and Zakir Hussain with pistol, suddenly appeared. Khaliq shouted that Zulfiqar should not go alive. Muhammad Nawaz fired at his near right eye, Zulfiqar fell down. Muhammad Khaliq fired near his right ear. Zafar fired at his back. Mehdi and Zakir fired in air. Zulfiqar died at the spot. Then Zakir Hussain, Mehdi Hassan and Muhammad Zafar ran away on motorcycle towards Railway Gate. Muhammad Nawaz and Muhammad Khaliq followed them. P.W.13 Muhammad Sadiq. He is Investigating Officer. His role has already been narrated earlier it is, therefore, not necessary to repeat it. 8.The reports of the Chemical Examiner and Ballistic Expert's report have also been brought on the record by the prosecution. 9.The Chemical Examiner has opined that earth secured from the place of occurrence contained human blood. 10.The Ballistic Expert opined that:--- (i) Cl 30 bore empty was fired from pistol recovered from Zakir Hussain. (ii)C2 empty cartridge was fired from carbine recovered from Mehdi Hassan. (iii) C3 and C6 were fired from carbine recovered from Muhammad Khaliq. (iv) C4 was fired from gun recovered from Muhammad Nawaz. (v) C5 was fired from carbine recovered from Muhammad Zafar. 11.The prosecution gave up witnesses Khalid Mahmood, Muhammad Munsha, Muhammad Ali, Shahnawaz and Nazir Ahmad, being unnecessary. 12.In their 342, Cr.P.C. Statements all of them denied the allegation and canvassed false implication. Muhammad Khaliq produced copy of judgment, dated 7-4-1987 in case titled Mr. Muhammad Afzal Sohail v. Chaudhry Muhammad Amin etc. (Exh.DB). They neither examined themselves on oath nor produced any witness in defence. 13.The learned Additional Sessions Judge, Sheikhupura, found all the five persons guilty for offence under section 148/302/149, P.P.C. Convicted and sentenced them as under:--- (i) Under section 148, P.P.C. R.I. For two years. (ii) Under section 302/149, P.P.C. Sentence ' Muhammad Nawaz, Muhammad Khaliq and Muhammad Zafar to death and fine of Rs,20,000 each in default to suffer R.I. For two years more. (iii) Under section 302/149, P.P.C. Sentenced Zakir Hussain and Mehdi Hassan to imprisonment for life and fine of Rs,20,000 each, in default to suffer R.I. For two years more. Half of the fine, if recovered, be paid to the heirs of the deceased. 14.On appeal the High Court of Lahore on 31st May, 1992, accepted appeal of Mehdi Hassan and Zakir Hussain and acquitted them of the charge. The sentence awarded to Muhammad Khaliq, Muhammad Zafar and Muhammad Nawaz under section 148, P.P.C. Was set aside and they were acquitted of this charge. But their conviction under section 302, P.P.C. Was maintained and section 149, P.P.C. Was substituted by section 34, P.P.C. Besides, their sentences of death were altered to imprisonment for life with benefit of section 382-B, Cr.P.C. The sentence of fine was maintained and if recovered the entire amount to be paid to the legal heirs of the deceased. 15.It may be noted that observations of the High Court passing the abovesaid order are essential for decision of Criminal Appeal No,222 of 1993, hence para. 13 is reproduced for sake of convenience:- "However, in view of the generalised role ascribed to Mehdi Hassan and Zakir Hussain, viz., indiscriminate firing after the event, possibility of the prosecution extended the net too wide can't be ruled out, therefore, as a matter of abundant caution, they are acquitted of the charges, resultantly the conviction and sentence of Muhammad Nawaz, Muhammad Khaliq and Muhammad Zafar alias Zafra alias Zafar Iqbal under section 148, P.P.C. Is set aside; however,
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maintaining their conviction for the murder of the deceased their sentence of death under section 302/34, P.P.C. Is commuted to imprisonment for life for safer administration of criminal justice because attribution of particular injury to each one of the assailants during close range multiple fire-arm assault the object remaining static is questionable; they would also avail of the benefit contemplated by section 382-B, Cr.P.C. The fine, if recovered, should be paid in toto to legal heirs of the deceased. Resultantly, Criminal Revision No,392 of 1990 fails and is hereby dismissed. The sentence of death is not confirmed." 16.Criminal Appeal No,223 of 1993 is filed by Muhammad Nawaz, Muhammad Khaliq and Muhammad Zafar, whereas Criminal Appeal No,222 of 1993 is filed by Muhammad Khan challenging acquittal of Zakir Hussain and Mehdi Hassan and for enhancement of sentence of Muhammad Nawaz, Muhammad Khaliq and Muhammad Zafar. 17.While granting leave to appeal to the parties in paras. 4 and 5 the Court has observed:--- "The features which necessitate reappraisal of the entire evidence are numerous. Firstly, the F.I.R. Which is said to be prompt, which has been taken to provide corroboration was lodged outside the Police Station at a Police Post notwithstanding the fact that the Police Station was only three furlongs away from the spot where the occurrence took place. Secondly, the Inspector Muhammad Sadiq (P.W.13) whose testimony was heavily relied upon for proving the prosecution case appears to be a close associate of the complainant party being co- accused with the deceased in complaint case No,134 of 1982 (Exh.DB). Thirdly, the motive being against complainant, his presence at the time of occurrence was doubtful because had he been present, he would have been directly under attack. Fourthly/finally, the reason given for mitigating the offence under section 302/34, P.P.C. Is somewhat enigmatic because of the following observations of the High Court- Maintaining their conviction for the murder of the deceased their sentence of death under section 302/34, P.P.C. So commuted to imprisonment for life for safer administration of criminal justice because attribution of particular injury to each one of the assailants during close range multiple fire-arm assault the object remaining static is questionable.' Hence leave to appeal is granted in Criminal Petition for Leave to Appeal No, 261-L/1992. The other petition (Crl.P.LA. No,249-L/1992) is shown to be barred by 3 days. This delay in filing the petition has been explained and is condoned. Hence, leave to appeal is also granted in the complainant's petition (Crl.P.LA. No,249-L/92) as the entire case is going to be reconsidered in depth. Bailable warrants in the sum of Rs,50,000 each with two sureties each in the like amount to the satisfaction of Duty Magistrate concerned shall issue against respondents in Criminal Petition No,249-L/1992, who are not in confinement." 18.As both, appeals, Criminal Appeal No,222 of 1993 and Criminal Appeal No,223 of 1993 arise out of the same judgment dated 31st May, 1992, of the High Court of Lahore and between the same parties, we intend to dispose of them by this one judgment. 19.Mr. Ijaz Hussain Batalvi, Senior Advocate Supreme Court with Mr. Muhammad Aslam Chaudhry, Advocate-on-Record, appeared for the appellants in Appeal No,223 of 1993 and private respondents in Appeal No,222 of 1993. Sh. Khizar Hayat, Advocate Supreme. Court, with Ch. Qamar- ud-Din Meo, Advocate-on-Record, appeared for the appellant in Appeal No,222 of 1993 and Ch. Muhammad Akram, Advocate Supreme Court, represented the State in both the appeals. 20.Mr. Ijaz Hussain Batalvi, Advocate, submitted:- (i) The story of the prosecution does not stand to the test of judicial scrutiny. It is unwitnessed incident. S.H.O./Inspector Muhammad Sadiq, who had faced trial of case alongwith deceased Zulfiqar, held preliminary investigation of the case at the spot, called complainant Muhammad Khan and other eye-witnesses and after due deliberations recorded
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statement of complaint Muhammad Khan at Police Outpost, Sangla Hill, instead of Police Station, Sangla Hill. Thus F.I.R. Is a fake document and investigation not only dishonest but fabricated one also. (iii) The witnesses, Muhammad Khan and Sher Muhammad, reside at a distance of 4/5 miles away from the place of incident, prosecution has miserably failed to prove their presence at the spot. They are not only chance but interested witnesses too. (iv) Incident took place during the day time in a busy town, many persons would have witnessed the incident, but none from them was examined. (v) Complainant Muhammad Khan and others were involved in murder of Nazra, Muhammad Khaliq and his companions had motive, if any, against Muhammad Khan, but not against Zulfiqar. Muhammad Khaliq and his party must had had got many chances to kill Muhammad Khan, safely but they did not do it. Even at the time of incident, though Muhammad Khan was present, they did not touch him at all but killed Zulfiqar. The motive advanced by the prosecution is not only unconvincing but imaginative ones (vi) No independent witnesses were associated at the time of recoveries by the police, but only witnesses related to deceased were introduced. The recoveries of empties and the weapons of offence are thus fake and unreliable. The Ballistic Expert's report is of no consequence. (vii) Crime empties were not sent immediately to the Ballistic Expert, possibility of tampering with it cannot be ruled out. (viii) Assailants lived at a distance of 5/6 miles from the place of incident, they could not have knowledge regarding movement of the deceased; the prosecution story is not only fake but unbelievable also. Reliance was placed on:--- (a) 1976 PCr.LJ 243. (b) 1987 PCr.LJ 1817. (c) 1992 SCM R 1475. (d) PLD 1969 SC 469. (e) PLD 1976 Lah. 469. (f) 1978 PCr.LJ 670. (g) 1969 PCr.LJ 1204. 21.Repudiating the contentions raised by Mr. Ijaz Hussain Batalvi, Sh. Khizar Hayat, Advocate, canvassed that prosecution has proved its case beyond reasonable doubt against all the five assailants. The F.I.R. Was lodged by Muhammad Khan without loss of time. In F.I.R. Complainant has shown himself, Sher Muhammad and Khalid Mahmood to be eye-witnesses of the incident. Complainant has clearly mentioned role played by each assailant in detail. The parties are known to each other earlier. It was broad daylight. There can be no mistaken identity. There is motive for the murder. It was for the other side to kill any person to avenge murder of Nazra. Zulfiqar was a notable man. They wanted to finish him. Had the assailants intended to kill Muhammad Khan they could have killed him much earlier. They totally ignored him. It was the reason that with challenge they killed Zulfiqar. The learned counsel reiterated that motive is carried in mind of a culprit. It cannot be read from his face but could be gathered from the facts and circumstances encircling a case. The motive thus advanced by the prosecution is not only true but proved also. The learned counsel emphasized that the prosecution has proved presence of eye-witnesses Muhammad Khan and Sher Muhammad at the time of occurrence. They both have fully involved all the five persons. Their evidence inspires confidence. If Muhammad Khan is said to be interested person but his evidence does not suffer from any inherent defect. Sher Muhammad is quite an independent person. His evidence lends support to complainant's evidence. Besides recoveries of crime empties from Vardat and weapons from the assailants and Ballistic Expert's positive report corroborates ocular version. The learned counsel further submitted that even medical evidence is consistent
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with ocular version. He strenuously stressed that the trial Court had properly assessed the prosecution evidence and rightly relied upon motive, ocular evidence, recoveries and Ballistic Expert's reports and rightly convicted all the five assailants. The learned counsel submitted that the High Court erroneously acquitted Zakir Hussain and Mehdi Hassan and altered death sentence of Muhammad Nawaz, Muhammad Khaliq and Muhammad Zafar to imprisonment for life. He insisted that conviction and sentenced awarded by the trial Court to the assailants be revived. 22.Ch. Muhammad Akram, Advocate, the learned counsel for the State adopted the arguments of Sh. Khizar Hayat and supported him. Reliance was placed on:--- (i) 1987 SCM R 2009. (ii)1970 PCr.LJ 911. PLD 1976 SC 53. (iv) PLD 1976 SC 452. 23.To prove unnatural death of deceased Zulfiqar prosecution has produced Medical Officer, Dr. Muhammad Rafique, P.W.1. In unequivocal words the Medical Officer has opined that death of deceased occurred due to severe shock, haemorrhage and the injuries which were sufficient to cause death in ordinary course of nature. 24. Regarding place of occurrence, besides ocular version of P.W.11 Muhammad Khan and P.W.12 Sher Muhammad, the dead body of the deceased was found lying there. Inspector Muhammad Sadiq prepared inquest report (Exh.PL), injuries report (Exh.PM) of the deceased there and despatched the dead body for post-mortem to Hospital. Investigating Officer secured crime empties and blood-stained earth from there. He associated Bashir Ahmad and Naiff Ahmad as attesting witnesses. The blood secured from the place of incident is certified to be human blood vide Exh.PV. The place of incident stands proved. 25.Coming to the date and time of the incident, the prosecution has proved it by recording statement of complainant Muhammad Khan at the police outpost at 10-38 a.m. And Police Station Sangla Hill at 10-35 a.m. On 6th of April, 1988. Sher Muhammad, second eye-witness of the incident, has fully supported version of the complainant. Medical Officer, Dr. Muhammad Rafique, has affirmed that on 6-4-1988 at 2-00 p.m. He held post-mortem on the. Dead body of deceased Zulfiqar. He opined that time between death and post-mortem could be 4 to 6 hours. 4 hours time coincides with 10-00 a.m. Even otherwise unnatural death of Zuffiqar, the date, time and place of occurrence has not been disputed by the defence. It is established that deceased Zulfiqar met with his unnatural death on 6th of April, 1988 at 10-00 a.m. Near Exchange Chowk, Sangla Hill. 26.To substantiate the charge the prosecution has produced four kinds of evidence:--- (I) Motive (complainant Muhammad Khan, P.W.11). (II) Ocular evidence (Muhammad Khan, P.W.11 and Sher Muhammad, P.W.12. Khalid Mahmood given up). (III) Recoveries (a) blood-stained earth, 5 empty cartridges and one empty shell from the Vardat (Bashir Ahmad, P.W.4 and Muhammad Sadiq, I.O. P.W.13). (b) recoveries of weapons:--- (i) Zakir Hussain Shaukat (P.W. 5and (ii) Mehdi Hassan Muhammad Sadiq (P.W.13) on…
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