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Petitioner: MUHAMMAD AFZAL and 2 others VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Sayyed Mazahar Ali Akbar Naqvi, Aalia Neelum Title: MUHAMMAD AFZAL and 2 others vs The STATE Case No.: Criminal Appeal No,11 and Murder Reference No,1 of 2008/BHP Date of Judgment:2014-02-06 Reported As: 2015 YLR 1699 Result: Appeal accepted
JUDGMENT
JUDGMENT ' SAYYED MAZHAR ALI AKBAR NAQVI, J.---Muhammad Afzal son of Javed Akhtar, caste Arain, resident of Chak No,55/DB, Tehsil Yazman, District Bahwalpur, Shabbir Ahmed son of Basheer Ahmed, caste Arain, resident of Nazir Abad Colony, Bahawalpur and Imran Javed son of Muhammad Haneef, caste Arain, resident of Nazir Abad Colony, Bahawalpur, appellants, were involved in case FIR No,42, dated 11-2-2005, offence under sections 302, 34, P.P.C., read with Sections 6/7 of the Anti-Terrorism Act, 1997, registered at Police Station Civil Lines, Bahawalpur and were tried by Mr. Muhammad Islam, learned Judge, Anti-Terrorism Court, Bahawalpur. The learned trial court seized with the matter-in terms of judgment dated 24-7-2008 convicted and sentenced the appellants as under:- - (i) Under Section 302(b)/34, P.P.C., all the appellants were sentenced to death on five counts with direction to pay Rs,2,00,000 each as compensation to the legal heirs of the deceased and in case of default in payment thereof they were directed to undergo S.I. For six months. (ii) Under Section 7- of the Anti-Terrorism Act, 1997 read with section 34, P.P.C., the appellants were sentenced to death on five counts with fine of Rs,1,00,000 each and in case of default in payment thereof, to undergo S.I. For six months each. (iii) Under section 460/34, P.P.C., the appellants were sentenced to undergo imprisonment for life. (iv) Under Section 392/34, P.P.C., the appellants were sentenced to undergo R.I. For ten years each with fine of Rs,50,000 each and in case of default in payment thereof, all of them were directed to undergo S.I. For six months. (v) Under Section 411, P.P.C., Imran Javed appellant was sentenced to undergo R.I. For three years.
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2. Feeling aggrieved by the judgment of the learned trial court, the appellants have assailed the same through filing Crl. Appeal No,11 of 2008 while the learned trial court has forwarded Murder Reference No,1 of 2008/BHP for confirmation of death sentence inflicted upon Muhammad Afzal, Shabbir Ahmed and Imran Javed/convicts in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment. 3. Prosecution story as contained in the FIR (Exh.PM) lodged on the statement of Muhammad Irshad son of Sardar Ali, caste Arain, resident of Chak No,40/DNB (P.W.8) is that he was a retired army personnel. On 11-2-2005 at 2:00 p.m. The complainant along with Muhammad .Boota Tariq son of Ch. Muhammad Din, caste Arain, resident of Chak No,42/DNB (P.W.10) Mamoon of the complainant, in connection with some domestic affairs, visited Bahwalpur City and thereafter, they went towards the house of Zubaida, sister of the complainant, whose husband had gone to Saudi Arabia for earning livelihood, situated at Nazeer Abad Colony. On the way, Muhammad Riaz (P.W.9), elder brother of behnvai of the complainant also met, who accompanied them and when about 2:45 p.m. All of them reached the house, they saw that outer door of the house was closed. On this the complainant along with other visited the house of Muhammad Hanif brother of Mukhtar Ahmed Behnvai of the complainant and asked about Zubaida on which they overheard the noise of a female child weeping inside the house. While scaling over the wall, the complainant went inside the house and saw that the door of the residential room was closed while its keys were lying there inside Veranda. After taking the keys, the complainant gave it to Muhammad Boota Tariq, who along with Muhammad Riaz after unlocking the outer door came inside and in their presence, the complainant opened the door of the room and saw that on one cot dead body of Mst. Zubaida was lying smeared with blood and on other cot dead bodies of Khurram Mukthar (bhanja of the complainant) while on another cot Iram Mukhtar and Kim Mukhtar (bhanjies of the complainant) were lying dead and in between the cots dead body of Iqra Mukhtar was lying and around their necks string was tied, who were murdered by unknown accused persons. ' Sana Mukhtar, minor bhanji of the complainant aged 2 years was found alive, who was weeping. After leaving Muhammad Boota Tariq and Muhammad Riaz, to safeguard the dead bodies, the complainant visited the Police Station, where he met with Khawar Zaman Lodhi, Inspector/SHO (P.W.16) and made his statement, which was reduced into writing in the shape of FIR. 4. After registration of the case, the Investigating Officer along with the complainant and other police officials rushed towards the place of occurrence and found dead bodies of Mst. Zubaida, Khurram Mukhtar, Kiran Mukhtar, Irum Mukhtar and Iqra' Mukhtar and examined them. He prepared injury statement of Mst. Zubaida (Exh.PA/ 2), her inquest report (Exh.PA/3), injury statement of Irum Mukhtar (Exh.PB/3), her inquest report (Exh.PB/2), injury statement of Mst. Kirn Mukhtar (Exh.PC/3) and her inquest report (Exh.PC/2), injury statement of Mst. Iqra Mukhtar (Exh.PD/3) and her inquest report (Exh.PD/2), injury statement of Khurram Mukhtar (Exh.PE/2) and his inquest report (Exh.PE/3) and handed over the dead bodies to Muhammad Ayyaz 1690/C for escorting to mortuary for postmortem examination. Thereafter, the Investigating Officer inspected the place of occurrence and secured quilt (P-25), Gadda/Mattress (P-26), Khais (P-27), red sheet (P-28) and pillow's cover (P-29), all bloodstained and took into possession vide recovery memo Exh.PN. The Investigating Officer also secured blood through cotton beneath the cot of Mst. Zubaida and made into sealed parcel vide recovery memo Exh.PQ. He further secured a small diary (P-30), a notebook (P-31) and Identity Card of Ghulam Shabbir (P-32) and took into possession vide recovery memo Exh.PR. At the same time, the Investigating Officer collected nylon (P-33) from the spot and secured vide recovery memo Exh.PS. From the kitchen the Investigating Officer collected a piece of sweet (Ras Gulla) and made into sealed parcel vide recovery memo Exh.PU. He further secured two butts of cigarettes (P-34/1-2) one of Embassy Filter and the other of Wills Filter and made into sealed parcel
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vide recovery memo Exh.PT. At the same time the Investigating Officer secured shirt bloodstained (P-35) of Mst. Zubaida from bathroom and made into sealed parcel vide recovery memo Exh.PV. All the recovery memos were signed by the witnesses and the Investigating Officer also recorded their statements in this regard in terms of section 161, Cr.P.C. Besides above, he prepared rough site plan of the place of occurrence (Exh.PGG). ' After the postmortem examination on 12-2-2005, Ayyaz constable handed over last worn clothes of Mst. Zubaida viz. Woolen Chadhar (P-I), qameez (P-2), shalwar (P-3), underwear (P-4), a piece to the Investigating Officer which he took into possession vide recovery memo Exh.PG. Similarly last worn clothes of Khurram Mukhtar shalwar (P-8), qameez ,(P-9), jersey high-neck (P-10), two pieces of cloth (P-11/1-2) and a frock (P-12) were secured vide recovery memo Exh.PH. Last worn clothes of Mst. Kim Mukhtar frock (P-13), pajama (P-14), jersey (P-15), string nylon (P-16) were secured vide recovery memo Exh.PJ while last worn clothes of Mst. Irum Mukhtar qameez (P17), shalwar (P-18), paranda (P-19) and dupatta (P-20) were taken into possession vide recovery memo Exh.PK. Finally last worn clothes of Mst. Iqra Mukhtar jersey (P-21), pajama (P-22), frock (P-23) and two pieces of string (P-24/1-2) were produced before the Investigating Officer, which he secured vide recovery memo Exh.PL. ' On 12-2-2005, the Investigating Officer had recorded supplementary statements of the complainant and Javed Iqbal. Similarly, on 15-2-2005, Mukhtar Ahmed, husband of Mst. Zubaida deceased appeared before the Investigating Officer and he recorded his statement in terms of Section 161, Cr.P.C. ' On 20-2-2005, the Investigating Officer arrested the appellants. Muhammad Afzal appellant after making disclosure led the police party towards Hanif Autos situated at Bus Adda and got recovered his shalwar (P-36), qameez (P-37) and a safa (P-38), all bloodstained, which were secured vide recovery memo Exh.PK. Thereafter, the appellant further led to the recovery of chhuri (P-39), which the Investigating Officer took into possession vide recovery memo Exh.PY. He also prepared rough site plan of the place of recovery. Thereafter, Imran Javed appellant after making disclosure led to the recovery of mobile phone NOKIA-3310 (P-40), a pair of tops/ear rings made of gold (P-41/1-2) and a golden ring (P-42) lying under a plank of Sewing Machine, which were secured vide recovery memo Exh.PZ. The Investigating Officer also prepared rough site plan of the place of recovery (Exh.PZ/1). On reaching the Police Station, the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned and also recorded the statements of the prosecution witnesses in terms of section 161, Cr.P.C. ' On 21-2-2005, the accused were produced before the learned Illaqa Magistrate, Bahawalpur; where they got recorded their statements in terms of Section 164, Cr.P.C. 5. After conclusion of investigation, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the court of competent jurisdiction. Firstly the appellants were charge sheeted on 22-10-2005, subsequently on 18-1-2006 and thereafter fresh amended charge was framed on 21-2-2006 to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as sixteen (16) prosecution witnesses. ' Muhammad Irshad (P.W.8) is the complainant of the case while his stance was supported through the statements of Riaz Ahmed (P.W.9) and Muhammad Boota (P.W.10). Syed Gul Hassan Shah Patwari had prepared scaled site plan (Exh.PF and Exh.PF/1) of the place of occurrence. The accused had got recorded their statements in terms of section 164, Cr.P.C. Before Muhammad Tariq Javed, learned Magistrate (P.W.15) while Khawar Zaman Lodhi, DSP (P.W.16) besides recording of FIR had also investigated the case. ' Dr. Tabussam Jabeen Durrani (P.W.1), on 11-2-2005, had conducted postmortem examination upon the dead body of Mst. Zubaida deceased and found following injury on her person:-
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" InjuryNo,1 ' There was an incised wound measuring 2.5 cm x 1 cm x blind deep on left upper chest just lateral to midline of mediasternum. Peritoneum was cut on dissection of chest. Pericardium was cut, a clotted blood was present in pericardial cavity. Ascending aorta was .Cut at the origin. Somewhat semi-digested food was present in stomach." ' After conducting the postmortem examination, the doctor opined as under:-- "After thorough external and internal postmortem examination, I am of the opinion that Injury No,1 causing shock leading to coma and death is sufficient to cause death in ordinary course of life. Injury was ante mortem in nature and caused by sharp edged weapon. Samples of stomach with contents, small and large intestines pieces, piece of liver, spleen and kidney were taken, preserved in saturated saline and sent to Chemical Examiner, Government of Punjab, Lahore for detection of any poison/sedative along with quantitative and qualitative analysis if any. Final opinion regarding poisoning will be given after receiving report. ' Probable time that elapsed between injury and death was within five minutes and between death and postmortem was more than 18 hours and less than 36 hours." ' On the same day at 11:55 p.m., the doctor had further conduced postmortem examination upon the dead body of Mst. Hum and found following injury on her person:-- "There was brownish black pressure impact abrasion irregular measuring 4 cm x 3 cm on lateral aspect of left middle neck. On dissection of injury clotted blood present on underlying muscles. A clotted blood present on left cornu of hyoid bone which was fractured." ' After conducting the postmortem examination, the doctor rendered the following opinion:- "After thorough external and internal postmortem examination, I am of the opinion that Injury No,1 causing compression of neck leading to acute insufficiency of circulation of oxygen leading to asphyxia, coma and death was sufficient to cause death in ordinary course of life. Injury was ante mortem in nature and as a result of strangulation. Sample of perineal swabs along with piece of shalwar taken, sealed and sent to Chemical Examiner, Lahore for detection of semen along DNA typing. Final opinion regarding sexual assault if any will be given after receiving report. Samples of stomach with contents, small and large intestines pieces, piece of liver, spleen and kidney taken, preserved in saturated saline and sent to Chemical Examiner, Government of Punjab, Lahore for detection of any poison/sedative along with quantitative and qualitative analysis if any. Final opinion regarding poisoning will be given after receiving report. ' Probable time that elapsed between injury and death was within 15 minutes and between death and postmortem was more than 18 hours and less than 36 hours." ' On 12-2-2005 at 1:00 a.m. (night), the doctor also conducted postmortem examination upon the dead body of Mst. Kim Mukhtar and observed as under:- "There .Was ligature mark on whole upper neck with yellow ligature of nylon.Subconjuctival petechial haemorrhages in both eyes. Face suffused on cutting of rope a ligature mark was present on whole upper neck, brownish in colour. On dissection of neck deep bruising present in underlying muscles. Hyoid bone was fractured. No visible mark of violence except described above." ' After conducting the postmortem examination, the doctor opined as under:- "After thorough external and internal postmortem examination, I am of the opinion that Injury No,1 causing compression of neck leading to asphyxia, coma and death was sufficient to cause death in ordinary course of life. Injury was ante mortem in nature and caused by strangulation with the rope. Samples of stomach with contents, small and large intestines pieces, piece of liver, spleen and kidney taken, preserved in saturated saline and sent to Chemical Examiner, Government of Punjab, Lahore for detection of any poison/sedative along with quantitative and qualitative analysis if any. Final opinion regarding poisoning will be given after receiving report.
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' Probable time that elapsed between injury and death was within 15 minutes and between death and postmortem was more than 18 hours and less than 36 hours." ' Further on 12-2-2005 at 1:50 a.m. P.W.1 also conducted postmortem examination upon the dead body of Iqra Mukhtar and observed as under:- "There was ligature mark on neck with yellow ligature of nylone around the neck. Face was suffused. On cutting of ligature i,e, rope a ligature mark was present on upper whole neck brownish in colour. On dissection of neck deep bruising present in under lying muscles. Hyoid bone was fractured. No other visible mark of violence except described above." ' After conducting the postmortem examination, the doctor opined as under:- "After thorough external and internal postmortem examination, I am of the opinion that Injury No,1 causing compression of neck leading to asphyxia, coma and death was sufficient to cause death in ordinary course of life. Injury' was ante mortem in nature and caused by strangulation with the rope. Samples of stomach with contents, small and large intestines pieces, piece of liver, spleen and kidney taken, preserved in saturated saline and sent to Chemical Examiner, Government of Punjab, Lahore for detection of any poison/sedative along with quantitative and qualitative analysis if any. Final opinion regarding poisoning will be given after receiving report. ' Probable time that elapsed between injury and death was within 15 minutes and between death and postmortem was more than 18 hours and less than 36 hours." ' It is pertinent to mention here that the visceras taken out of all the dead bodies were sent to the office of Chemical Examiner and as per respective reports, in all the cases it was opined that morphine was detected in the visceras. However, quantitative estimation was not possible. ' On 12-2-2005 at 2:40 a.m. Dr. Rao Muhammad Javed Akhtar (P.W.2) had conducted postmortem examination upon the dead body of Khurram Mukhtar and observed following injury on his person:- "There was a brownish coloured ligature mark present with a depressed bed in the ligature mark. On the dissection of the ligature mark bruising was present in the underlying muscles and subcutaneous tissue. Hyoid bone was fractured." ' After conducting the postmortem examination, the doctor opined in the following terms:- "After thorough external and internal postmortem examination, I was of the opinion that Injury No,1 causing compression of neck, mouth and nose leading to acute asphyxia leading to coma and death was sufficient to cause death in ordinary course of life. Injury was ante mortem in nature and caused by strangulation. Samples of stomach with contents, small and large intestines pieces, piece of liver, spleen and kidney taken, preserved in saturated saline and sent to Chemical Examiner, Government of Punjab, Lahore for detection of any poison/sedative along with quantitative and qualitative analysis if any. Final opinion/regarding poisoning will be given after receiving report. ' Probable time that elapsed between injury and death was within 15 minutes and between death and postmortem was more than 18 hours and less than 36 hours." ' In this case too, as per report of Chemical Examiner, morphine was detected in the visceras. ' Statements of rest of the prosecution witnesses are formal in nature. 6. On 3-8-2006 learned Public Prosecutor gave up Javed Iqbal and Ayyaz Ahmed, P.Ws., being unnecessary. Further vide his statement recorded on 16-4-2008, besides giving up Riaz Ahmed, Abdul Majeed and Muhammad Ismail, P.Ws., being won over, learned Public Prosecutor after tendering in evidence the report of Chemical Examiner No, 634/B, dated 22-2-2005 (Exh.PHH), report No,853/B dated 15-3-2005, (Exh.PJJ) report No,258/PV dated 6-4-2005 (Exh.PKK) and reports of Serologist No,1962/Sero, dated 27-9-2005 (Exh.PLL) and report No,775/Sero dated 9-5-2007 (Exh.PMM), closed the prosecution evidence. 7. The appellants/convicts were also examined under Section 342, Cr.P.C.; wherein they opted to produce defence evidence, however, they opted not to appear as their own witnesses in terms of
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section 340(2), Cr.P.C. In disproof of the allegations levelled against them in the prosecution evidence. While replying to the question why this case against him and why the P.Ws. Deposed against him, Shabbir Ahmed appellant made the following deposition:-- "P .Ws . Waheed Akhtar and Muhammad Dawood are related inter se and with deceased. They were inimical towards me that is why they have deposed falsely against me." ' Muhammad Afzal, appellant, while replying to this particular question replied as under:-- "P.Ws. Wahid and Dawood are inimical towards me being our political rivals. They are related inter se and with deceased, that is why they have deposed against me." ' While replying to this specific question Imran Javed, appellant, made the following deposition:-- "P.Ws. Are related inter se and with deceased. They are interested witnesses. No independent witness was produced against me." 8. Learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt against the appellants resulting into their conviction in the afore stated terms. 9. Learned counsel for the appellants while addressing the Court submitted that admittedly it was an unseen occurrence and even no exact time of occurrence was mentioned in the crime report. Learned counsel forcefully argued that the appellant was resident of 80-KMs away from the place of occurrence and there is nothing on record for the purpose of proceedings to the house of his sister. He contended that even the statement of the complainant is belied by the deposition of the Investigating Officer (P.W.16) according to whom the police was informed about the occurrence by the tenants of the house of deceased sister of the complainant. It was urged that the medical evidence is in conflict with the prosecution version as the doctor had opined that duration in the death and postmortem examination was ranging from 18-36 hours. Moreover, morphine was also detected in the visceras taken out from all the dead bodies. Learned counsel emphasized that the presence of the prosecution witnesses of last seen viz. Muhammad Akhtar (P.W . 11) and Muhammad Javed (P.W.12), is doubtful. Regarding confessional statements recorded by the appellants in terms of section 164, Cr.P.C., learned counsel while drawing attention of the Court towards an application (Exh.DF) urged that the same was moved by mother of one of the appellants' before the Magistrate on 17-2-2005 and thereafter while adopting 3rd degree matters the Investigating Officer raised pressure on the appellants, therefore, the alleged confessional statements recorded on 20-2-2005 cannot be termed as voluntary and this also do not coincide with other circumstances. Regarding recovery of articles affected from the appellants, learned counsel urged that it has come in the statement of Khawar Zaman Lodhi, DSP/Investigating Officer that at the time of spot inspection the doors of the Almirahs, boxes, suit case were not broken, therefore, the alleged recovery is of least importance. In this backdrop, learned counsel urged, in absence of any interlinking evidence, the learned trial court was not justified in recording conviction/ sentence against the appellants. Learned counsel for the appellants, in support of his contentions, referred the dictum of law laid down in the cases of Fazal Mahmood alias Pappu v. The State (1999 SCM R 2040), Wilayat All v.The State and another (2004 SCM R 477), Majeed v.The State (2010 SCM R 55). 10. As against above, learned DDPP assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellants with the submissions that nevertheless the appellants were not named in the crime report, however, after their arrest on 20- 2-2005, at their own, the appellants made voluntary statements in terms of Section 164, Cr.P.C. Before the learned Magistrate, hence they are fully linked with the instant case. Learned counsel for the complainant submitted that from the spot CNIC of Shabbir appellant was recovered from which the accused were traced and subsequently during the course of investigation stolen articles and diary were also recovered on their pointing out, which fully establish their link with the
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commission of offence. Regarding medical evidence, learned counsel for the complainant urged that the same is in line with the prosecution version.. Learned counsel emphasized that Riaz Ahmed (P.W.9) was equally related to the deceased, as well as, the accused party, therefore, he was having no reason to falsely depose against the appellants and even no suggestion was put to him that he made false deposition. It was finally argued that in view of cogent and confidence inspiring evidence led by the prosecution, while attending each and every aspect of the case, the learned trial court rightly passed conviction against the appellants. The learned DDPP, as well as, learned counsel for the complainant, in these circumstances prayed for dismissal of the appeal filed by the appellants. In support of his contentions learned counsel for the appellants placed reliance on the dictum of law laid down in the cases of Nabi Bakhsh and another v. The State and another (1999 SCM R 1972), Muhammad Gul and others v. The State (1991 SCM R 942), Muhammad Amin v.The State (PLD 2006 Supreme Court 219). 11. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants, learned counsel for the complainant, as well as, learned DDPP. 12.. Before recording our observations with regard to authenticity of the prosecution version it is manifest to note that admittedly it was a gruesome occurrence, which resulted into death of five innocent persons in a very brutal/ reckless manner. No doubt the occurrence had taken…
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