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Petitioner: (1) Nasir Mehmood (2) Rafaqat Hussain (3) The State VS Respondent: (1) The State (2) Rafaqat Hussain and another
Court Name: Islamabad High Court Judge(s): Aamer Farooq, Mohsin Akhtar Kayani Title:(1) Nasir Mehmood (2) Rafaqat Hussain (3) The State vs (1) The State (2)
Rafaqat Hussain and another Case No.:(1) Jail Appeal No.192/2015 (2) Jail Appeal No.202/2015 (3) Murder Reference No.17/2015 Date of Judgment:2018-07-16 Reported As: 2018 IHC 100 Result: appeal allowed Judgment MOHSIN AKHT AR KAYANI J. Through this single judgment, we intend to decide the above mentioned jail appeals and murder reference as the same have arisen out of same case FIR No.271, dated 28.09.2009, U/S 302, 324, 337-F(i), 337-F(v), 337-A(i), 148, 149, 109, PPC, Police Station Koral, Islamabad. 2. Through the captioned jail appeals, appellants Nasir Mehmood and Rafaqat Hussain have assailed the judgment dated 25.11.2015, passed by learned Additional Sessions Judge (East) Islamabad, whereby they have been convicted and sentenced U/S 302(b), PPC to death sentence on three counts for the murder of Babar Nadeem, Mulazim Hussain and Mukhtar Hussain and to pay Rs.1,00,000/- each to the legal heirs of all three deceased persons U/S 544-A, Cr.P.C. In default of payment of compensation, they shall further undergo six months S.I. The appellants were also convicted and sentenced U/S 324 PPC for 10 years R.I with fine of Rs.50,000/-, in default whereof, they shall further undergo six months SI each for an attempt to commit murder of injured Matloob Hussain. The appellants were also convicted and sentenced U/S 337-F(v) for three years imprisonment with Daman of Rs.50,000/- each for causing injuries to Matloob Hussain. The appellants were acquitted from the charge of an attempt to commit murder of injured Wajid Nadeem and inflicting injuries to him. Benefit of section 382-B, Cr.P.C. was also extended to the appellants. 3. Brief facts are that Muhammad Azam/complainant got recorded his statement to the police with the allegation that on 28.09.2009, he went to Rawalpindi on his car for supply of milk and when he was coming back with Asghar Ali to his village and at about 8:30 a.m, when they reached near Pind Dayan, they suddenly heard firing and saw that Ilyas s/o Aslam armed with Kalashnikov , Arif s/o Aslam armed with 7 mm, Rafaqat s/o Muhammad Hussain armed with 12 bore gun, Nasir Mehmood s/o Muhammad Hussain armed with 30 bore pistol, Faisal s/o Muhammad Hussain armed with Kalashnikov and Zafran s/o Meherban armed with Kalashnikov resorted firing at
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car No.RIV/1845 of Babar Nadeem and others, who were sitting in the said car. Behind the car four motorbike riders on two motorcycles were making aerial firing. During the firing, Babar Nadeem, who was present on driving seat of car, fled to save himself in injured condition and he was chased by accused Faisal, who fired upon him with his Kalashnikov and Babar Nadeem fell down on the ground, thereafter accused Rafaqat Hussain fired on him with his 12 bore gun. Due to said firing, people gathered at the site and accused Ilyas alongwith his companions fled away on their white colour Mehran Car from the scene while making aerial firing. The four unknown persons, who were present on motorcycles, also decamped from the place of occurrence, who can be identified by Muhammad Azam/complainant and Asghar Ali, if seen. Thereafter , they went to vehicle of Babar Nadeem and found dead bodies of Mulazim Hussain on front seat, Mukhtar Hussain on back seat, nearby Babar Nadeem, whereas Wajid Hussain and Matloob Hussain were also lying on the back seat of the vehicle in critical injured condition. The injured were taken to hospital by Asghar Ali. Ilyas and his companions have committed murder of three persons and injured two persons in consultation with Muhammad Hussain, whereas the motive of the occurrence is old enmity due to murder . On the complaint of Muhammad Azam, above mentioned FIR has been registered. After completion of the investigation, challan U/S 173, Cr.P.C was submitted before the Trial Court, and learned trial Court convicted and sentenced the appellants through the impugned judgment. 4. Learned counsel for the appellants have contended that the conviction is based upon misreading and non- reading of evidence and the appraisement of circumstances adopted by learned Trial Court is not sustainable as the evidence is insuf ficient to prove the guilt of the appellants; that the occurrence took place in densely populated area but no independent person/witness was produced in the Trial from the vicinity to substantiate the contention of the complainant; that presence of the complainant at the place of occurrence is doubtful, even no specific injury has been attributed to appellant Nasir Mehmood; that the I.O sent weapon of offence to FSL with delay and the witnesses were inimical, whose statements could not be corroborated without independent source, hence, their evidence has to be discredited; that the witnesses have improved their stance and there are a lot of contradictions and additions in material facts, which shake the credibility of the witnesses qua their bonafide. 5. Conversely , learned counsel for the complainant has contended that the appellants have been nominated with specific role of committing murder of three innocent persons and injuring two witnesses, which has been corroborated through testimony of injured P.W.16; that it was pre-planned murder , which was committed in gruesome and brutal manner and the Trial Court has rightly convicted the appellants and awarded them death sentence; that the contradictions referred by learned counsel for the appellants amongst the statements of the witnesses are minor and the same do not affect material facts of the case and the same have no bearing on merits of the case; that there is no discrepancy in the ocular account and the appellants were identified in proper manner; that the motive is established from the record; that non-matching of empties recovered from the place of occurrence with the weapon of offence recovered from the accused is of little significance as the prosecution case is based upon ocular account furnished by one injured P.W.16, whose presence at the place of occurrence is beyond any shadow of doubt; that car P.1 produced before the Court during the trial, in which two persons lost their lives and two got injured, clearly revealed that it had broken windscreen and blood stained seats, therefore, all the ingredients of conviction are on record and chain of evidence proves that the appellants alongwith others committed gruesome murder of three innocent persons and got injured two persons. 6. We have heard the arguments of learned counsel for the parties and gone through the record with invaluable assistance of learned counsel for the parties. 7. From perusal of the record, it has been observed that complainant Muhammad Azam, got lodged the complaint to SHO, P.S Koral, Islamabad with the allegations that he is milk seller and resident of Darwala, Islamabad, whereas on 28.09.2009 he went to Rawalpindi early in the morning in his vehicle to sell milk and after selling the milk, when he alongwith Asghar Ali s/o Wali Muhammad was coming back to his village and at about 8:30 a.m, when they reached near Pind Dayan, they suddenly heard firing and saw that accused Muhammad Ilyas armed with Kalashnikov , Arif armed with 7mm, Rafaqat armed with .12 bore gun, Nasir armed with .30 bore pistol, Faisal armed with Kalashnikov and Zafran armed with Kalashnikov were firing on the vehicle RIV/1845 of Babar Nadeem, whereas on the back side of the vehicle four persons on two motorcycles were also making aerial firing, Babar
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Nadeem, who was present on the driving seat in injured condition fled to save his life but Faisal accused chased him and fired upon him from his Kalashnikov , whereby Babar Nadeem fell down on the ground. Accused Rafaqat, who was armed with 12 bore gun, also resorted to firing upon Babar Nadeem . During the said firing, people gathered at the site and accused Muhammad Ilyas alongwith companions decamped from the site on white Mehran Car while making aerial firing and similarly the four motorcycle riders also fled away from the scene, who can be identified, if seen. After the said incident, the complainant went to the said vehicle and found that on the front seat Mulazim Hussain and on the back seat Mukhtar Hussain were lying dead, whereas dead body of Babar Nadeem was lying at some distance. Wajid Hussain and Matloob Hussain were seriously injured lying on the back seat of the car, who were shifted to the hospital by Asghar Ali. Muhammad Ilyas and his companions have committed murder of three innocent persons and injured two persons in consultation with Muhammad Hussain s/o Khan Muhammad, whereas motive of the occurrence is enmity due to a murder case. 8. The complaint was converted into FIR No.271, dated 28.09.2009, U/S 302/324/148/149/109/337-A(i)/337- F(v)/337-F(i), PPC, P.S Koral, Islamabad/Exh.P .T. After receiving information of the incident by police officials, Ghulam Abbas, S.I/SHO/P .W.2 alongwith Shafaqat Ullah, Sabir Masih, and Muhammad Asif, constables reached at the spot and observed vehicle RIV-1845 and found on its front seat dead body of Mulazim Hussain and on the rear seat dead body of Mukhtar Hussain, whereas at some distance dead body of Babar Nadeem was lying down on the ground. All the three dead bodies were shifted to the hospital for the purpose of post mortem. 9. Investigation Officer, Muhammad Munir , S.I/P.W.18 completed the investigation and arrested the appellants, submitted different reports U/S 173, Cr.P.C. First Muhammad Ilyas accused was arrested on 01.11.2009 and challan to his extent was submitted before the Court, whereas appellants Nasir Mehmood and Rafaqat Hussain were declared proclaimed offenders, who were later on arrested by Shoukat S.I/P.W.19 on 23.05.2014, where-after separate challan was submitted before the Court to their extent, trial was conducted and after completion of the trial, appellants Nasir Mehmood and Rafaqat Hussain were convicted and sente nced U/S 302(b), PPC to death sentence on three counts for the murder of Babar Nadeem, Mulazim Hussain and Mukhtar Hussain, and to pay Rs.1,00,000/- each to the legal heirs of all three deceased persons U/S 544-A, Cr.P.C. In default of payment of compensation, they shall further undergo six months S.I. The appellants are also convicted and sentenced U/S 324 PPC for 10 years R.I with fine of Rs.50,000/-, in default whereof, they shall further undergo six months S.I. each for attempting to commit murder of injured Matloob Hussain. The appellants are also convicted and sentenced U/S 337-F(v) for three years imprisonment with Daman of Rs.50,000/- each for causing injuries to Matloob Hussain. The appellants were acquitted from the charge of attempting to commit murder of Wajid Nadeem and inflicting injuries to him. Benefit of section 382-B, Cr .P.C was also extended to the appellants. 10. The prosecution produced 19 witnesses in the trial. Dr. Farrukh Kamal appeared as P.W.1, who conducted post mortem of deceased persons Mukhtar , Babar Nadeem and Mulazim Hussain and referred the details in following manner:- "that on 28.09.2009, I was posted in PIMS Hospital, Islamabad. On the same day at 2 p.m I conducted the post mortem of Mukhtar s/o Peeran Ditta age 40 years male, caste Chatha, r/o Darwala, Islamabad brought by Ghulam Abbas 6517 and Shokat S.I Police Station Koral and identified by Muhammad Shafique s/o Peeran Ditta, Ghulam Abbas s/o Kala Khan. EXTERNAL APPEARANCE. A middle age man height 5 ft 4 inches, hairs, moustaches and beard, mouth and one eye closed. Following injuries were found on the dead body . i. Entry wound circular inverted margins 1 x 1 cm above left ear 7 cm on skull. ii. Entry wound 3x2 cm below left ear on neck back side. iii. Combine exit of above two entry wounds 12 x 9 cm right eye absent, brain matter outside. iv. Entry wound 1x1 cm circular inverted margins blood stained lateral aspect of chest right side. v. Exit wound irregular inverted margins blood stained 1.5 x 1.5 cm back of chest. vi. Entry wound 1.5 x 1.5 cm Circular inverted margins left front of shoulder , fracture humorous. vii. Exit wound 1.5 x 1.5 cm irregular inverted margins blood stained left back below shoulder .
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INTERNAL EXAMINATION. Scalp, membrane of brain, brain and walls thorax were ruptured. Skull and humorous fractured. Opinion. In my opinion deceased died due to fire arm injury , which caused ruptured of brain, fracture of skull and left humorous which caused death. All injuries are ante mortem in nature and sufficient to cause death in ordinary cause of nature. 11. P.W.1 also conducted postmortem of Babar Nadeem and referred the details in following manner:- "On 28.09.2009 at 12 p.m (noon) I condu cted the post mortem of Babar s/o Sabir Nadeem aged 35 years male, caste Chatha, r/o Darwala, Islamabad brought by Shafqat Ullah 4304 of Police Station Koral and identified by Adalat Hussain s/o Muhammad Shafi, Umar Zaman s/o Adalat Hussain. EXTERNAL APPEARNCE. A young male height 5 ft 8 inches, hairs, moustaches and beard, bearing cream color Qameez white colour Shalwar and west. Following injuries were found on the body . i. Entry wound 8 x 5 cm multiple entry wounds right mandible region with fracture mandible and lower jaw . ii. Exit wound 1.5 x 1.5 cm irregular inverted margins occipital region on neck. iii. Entry wound circular inverted margins blood stained right side back 1 x 1 cm. iv. Exit wound irregular inverted margins blood stained 19 cm from arm pit right lateral abdomen. v. Amputated right middle finger. vi. Entry wound 1.5 x 1.5 cm circular inverted margins blood stained on left arm near shoulder . vii. Graze wound 2.3 cm below sterna notch. INTERNAL EXAMINA TION. Scalp, membrane of brain, brain ruptured, skull fractured, walls ruptured, pleurae ruptured. Right lung ruptured left lung ruptured. Heart ruptured. Abdominal walls ruptured, peritoneum ruptured, liver ruptured, fracture mandible. All other viscera were intact. OPINION. In my opinion deceased died due to fire arm injury , which caused ruptured of right lung, left lung, heart, liver, brain and fractured mandible and skull and fractured lower jaw. All injuries are ante mortem in nature and sufficient to cause death in ordinary cause of nature". 12. Dr. Farrukh Kamal/P.W.1 also conducted postmortem of Mulazim Hussain and referred the details as under:- "On 28.09.2009 at 1 p.m I conducted the postmortem of Molazim s/o Gulzar Khan aged 50 years male, caste Khanial Rajput, r/o Darwala, Islamabad brought by Shafqat Ullah 4304 of Police Station Koral and identified by Ali Ahmed s/o Sardar Khan, Muhammad Hanif s/o Abdul Aziz. EXTERNAL APPEARANCE. A middle age man height 5 ft 8 inches, hairs, moustaches beard, wearing white color clothes and Salooka. Eyes and mouth closed. Following injuries were found on the body . i. Entry wound 2 x 3 cm palm of left hand circular inverted margins, blood stained blackening present. ii. Exit wound dorsum of hand 12 x 8 cm irregular inverted margins, blood stained. iii. 3 Entry wounds on forehead 1 x 1 cm circular inverted margins blood stained left side. iv. Entry wound 1 x 1 cm circular inverted margins blood stained on forehead left side close to injury No.3. v. Entry wound 1 x 1 cm fronto parietal region on forehead. vi. Entry wound circular inverted margins blood stained 1 x 1 cm left mandible region. Bullet removed approaching the track. vii. Entry wound left side of neck. Bullet removed. viii. Entry wound 1 x 1 cm circular inverted margins blood stained right front middle of chest. ix. Exit wound irregular inverted margins blood stained right back of chest. x. Exit wound 1.5 x 1.5 cm irregular inverted margins blood stained parieto occipital region. INTERNAL EXAMINA TION.
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Scalp, membrane of brain, brain rupture d, skull fractured. Walls of thorax ruptured, pleurae ruptured. Right lung ruptured. All other organs were intact. OPINION. In my opinion deceased died due to fire arm injury , which caused ruptured of brain, right lung, fractured skull caused death. All injuries are ante mortem in nature and sufficient to cause death in ordinary cause of nature. 13. During cross-examination, P.W.1 acknowledged that autopsy of Babar Nadeem deceased was started at 12:00 noon and he opined that shot made from close distance causes blackening approximately of 2 cm of diameter and he further stated that if gunshot be made from remote distance, the size of entry wound is normally less than .5 cm. He further stated that all dead bodies were brought together at the same time at round about 10:30 a.m. and he started autopsy of deceased Mutkhar Hussain at 2 p.m., however , he acknowledged that there was no blackening on all the injuries of deceased Mukhtar Hussain. He further stated that he cannot tell as to what kind of weapon was used as he is not ballistic expert of weapon nor he is able to tell exact distance of fire-arms through which injuries were caused. He further stated that entry wounds were of different size and it depends upon the weapons as well as entry in the tissues of the body . He further stated that no material was found inside entry wounds, however , he conceded that possibility of incident might be between 7 to 9 a.m. He also conceded that the date mentioned in postmortem of Mukhta r is 03.10.2009.The injuries caused to deceased Mukhtar Hussain were from different dimensions. P.W.1 further confirmed that he cannot disclose the exact distance of bullet injuries and no blackening of injuries were found on dead body of Mukhtar except of Injury No.1. He further stated that at the time of postmortem of Mukhtar Hussain no private person was present there and he handed over the clothes of deceased at about 3/3.30 pm to the police and as per his calculation the time mentioned in the post mortem report, if calculated, the occurrence could take place at 7 am. P.W.1 further confirmed that he did not mention the time of the postmortem of Babar Nadeem, howe ver he stated that no blackening of injuries were found on the dead body and he confirmed that blackening appears if the distance is one meter or less. He further confirmed that no private person was present at the time of post mortem of Babar Nadeem, however he could not tell the exact direction of fire-arm used on the dead body of Babar Nadeem but as per his opinion deceased sustained injuries due to fire from different directions and same is the position with deceased Mukhtar Hussain and Mulazim Hussain. 14. The prosecution produced Dr. Abdul Ghafoor as P.W.11, who was posted in Benazir Bhutto Hospital as CMO on the day of incident and he examined injured Wajid Nadeem at 12:45 p.m on 28.09. 2009 and referred the details as under:- 1. A lacerated wound over right hypochondrium (RHC), laterally , 1.5 x 1.5 cm with inverted margin, depth not probed (DNP), no blackening, burning present. ii. A lacerated wound over mid of back with everted margin, with no blackening or burning, DNP , 2 x1 cm. iii. A lacerated wound over right arm laterally at upper one third 1.5 x 1.5 cm, DNP, margins inverted with no blackening or burning. Marked sign sealed Qameez was hand ed over to police. The patient was referred to surgical unit No.1 for management and expert opinion regarding extent of injuries. Injuries were found caused with fire arm within 03 hours and the same were kept under observations. According to surgeon BBH, there was laceration of segment of liver, perirenal hematoma and laceration of upper pole of right kidney . The injuries No.1 & 2, kept under observations were declared as Jurh Jaifa, whereas injury No.3 was declared as Jurh Ghair Jaifah Damia. Ex-PU is true carbon copy of the original, which is in my handwriting and bears my signature. I also signed injury statement Ex-PM.. 15. On the same day , P.W.11 also examined the other injured Matloob Hussain and referred the details as under:- "1. A lacerated wound over mid of left upper arm, 1 x1 cm, with inverted margin, with no blackening and burning. depth not probed (DNP). ii. A lacerated wound over back of left shoulder , 2 x 1.5 cm with everted margin, with no blackening or burning, DNP.
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Marked, sign and sealed Qameez handed over to police. The patient was referred to surgical unit No.1 for management and expert opinion regarding extent of injuries. Injuries were found caused with fire arm within 03 hours and were kept under observation. According to surgeon of BBH, Sr. Registrar SU-I Dr.Zeeshan, there was fracture of left scapula and left humerus, hence, KU injuries were declared Jurh Ghair Jaifa Hashima. Ex.PV is true carbon copy of the original, which is in my handwriting and bears my signatures. I also signed the injury statement. 16. During cross-examination, Dr. Abdul Ghafoor/P .W.11 acknowledged that the injured was observed by him at 12.45 pm and no blackening or burning was observed on the injuries of both the injured P.Ws, however he confirmed that the fire shot was made from a distance of more than 4 feet. He further confirmed that the size of injuries varies from each other and he could not comment whether the same were caused from same or different weapons. He further stated that injury No.2 is an exit wound. P.W.11 confirmed that injured was conscious and oriented, however he could not tell the time when he handed over MLC to police nor he is able to confirm the date when he received the opinion of the surgeon and he is unable to tell the duration of examination. 17. PW.11 further confirmed that in case of injured Matloob Hussain/P .W.16, he did not use the words entry , exit and the size of injuries were roughly mentioned, however he did not mention the date of receiving of expert opinion and he cannot tell the name of police of ficial to whom Qameez of injured P .W was handed over . 18. The prosecution produced Dr. Anees Ahmed as PW.10, who was posted as Sr. Registrar in BBH, Rawalpindi on 28.09.2009 (occurrence day), who examined injured Wajid Nadeem for expert opinion, referred by Dr. Abdul Ghafoor/P .W.11, who observed that: "Patient was presented in the emergency with firearm injury abdomen. Exploratory laparotomy was done in which there was laceration of segment 6 & 7 of liver and peri-renal hematoma retro and retro peritoneal laceration of upper pole of right kidney. Post operative recovery was smooth. The opinion was given by me on 6.1.2010 Ex.PT is in my handwriting which bears my signature." 19. The prosecution produced Adalat Khan as P.W.14, who stated that on 28.09.2009, he heard about occurrence and he alongwith his son Umar Zaman proceeded to the place of occurrence on motorcycle and saw vehicle No.RIV -1845 and found that on the front seat dead body of Mulazim Hussain was lying and on the back seat dead body of Mukhtar Hussain was lying, whereas at distance of 10/15 steps dead body of Babar Nadeem was lying. He further stated that after some time police arrived there and he signed the injury sheet/Exh.PX on which he identified his signatures as Exh.PX/1, where-after the police officials shifted the dead bodies to PIMS Hospital and there he identified the dead body of Babar Nadeem for the purpose of post mortem. He further stated that he received the dead body of Babar Nadeem from police of ficials through receipt/Exh.PZ. 20. During the cross-examination, P.W.14 acknowledged that he reached at the place of occurrence at about 9/9:15 a.m., whereas the police officials arrived at the crime scene after his arrival and he remained at the place of occurrence throughout the time when the proceedings were carried out by the I.O. He further stated that he does not remember whether the I.O had collected anything from the place of occurrence and he is not aware as to how police officials came at the spot and he cannot tell the names of drivers and registration number of the vehicles used for the purpose of transportation. He further conceded that he cannot even tell the name of I.O, who was present at the spot and he also cannot tell how many police officials were present there. He also conceded that all the signatures were made at PIMS hospital and he does not know when the post mortem was conducted, however , he signed the receipt of dead body at 1:30 pm. 21. The prosecution produced Muhammad Shafique as P.W.15, who stated that on 28.09.2009 he was present in his house alongwith Ghulam Abbas and after hearing about the occurrence, he alongwith Ghulam Abbas reached at the place of occurrence and saw vehicl e No.RIV -1845, wherein on the front seat of the said vehicle dead body of Mulazim Hussain was lying whereas on the rear seat dead body of Mukhtar Hussa in was lying and at about 14/15 steps from the vehicle dead body of Babar Nadeem was present. He further stated that the police arrived at the spot and the I.O prepared the injury statement Exh.P AA of Mukhtar…
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