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Petitioner: MUHAMMAD YAQOOB AND 4 OTHERS VS Respondent: THE STATE
1988 P Cr
1988 P Cr. L J 807
[Lahore]
Before Khalil‑ur‑Rehman and Abdul Waheed, JJ
MUHAMMAD YAQOOB and 4 others‑‑Appellants
Versus
THE STATE‑‑Respondent
Criminal Appeal No. 11 of 1988, decided on 8th February, 1988.
Penal Code (XLV of 1860)‑‑
‑‑‑Ss. 302/148/149‑‑Occurrence took place as a sequel to civil and criminal litigation between parties‑‑Hostility due to said litigation being inveterate, motive was clearly two pronged; it could provoke aggression and also prompt false implication‑‑Reports received from Chemical Examiner and from Serologist showing that blood‑stained articles recovered in the case were stained with human blood‑‑Report received from Forensic Science Laboratory indicating that out of ten empties of .12 bore recovered from spot, seven were not fired from any of the guns recovered from accused and three were without percussion caps not possessing identifiable data and nothing could be said as to whether or not same were fired from these guns‑‑Recoveries from some of accused made thirteen days after their arrest and no reason, plausible or otherwise, apparent from record for belated recoveries‑ Police did not associate any independent person while effecting recoveries‑‑Recoveries as such not only doubtful, dubious but also fading into insignificance in view of report of Forensic Science Laboratory‑‑Ocular account furnished by witnesses who were interested and closely related to deceased and inimical and adversaries against accused in civil and criminal cases and at trial they changed their version about injuries to deceased to bring it in accord with medical evidence and did not stick to what they stated in their statements before police under section 161, Cr.P.C., or to what was mentioned in first information report‑‑Presence of eye‑witnesses at spot at time of occurrence not appearing to be indubitable and no reliance could be placed on their testimony‑‑Discrepancies existing is prosecution case coupled with ambient circumstances carrying countervailing significance, not establishing case against accused‑‑Convictions and' sentences set aside in circumstances.
Sultan Ahmad and Sardar Muhammad Latif Khan Khosa for Appellant.
Najam‑uz‑zaman A .A.‑G. for the State.
Shaukat Bajwa for the Complainant.
Dates of hearing: 30th, 31st January, 2nd, 6th, 7th and 8th February. 1988.
JUDGMENT
ABDUL WAHEED, J:‑‑Muhammad Yaqoob (52), Muhammad Hanif (26),Iftikhar (21),Abdaal (21) and Ghulam Ali (30) were tried under sections 148 and 3021149, P‑P .C. for forming an unlawful assembly armed with fire‑arms and in prosecution of the common object thereof committing the murder of three brothers namely Amir Ali (38), Ahmad Ali (33) and Muhammad Ali (48). Liaqat Ali (25), Najabat Ali (41), Salabat Ali (45) and Ahmad Ali (56) were charged under section 302/109, P.P.C. for instigating the abovementioned accused to commit the three murders. The Punjab Special Court for Speedy Trials No. 2, Lahore vide its judgment, dated 60 of January, 1988 while acquitting Liaqat, Najabat, Salabat Ali and Ahmad Ali of the charge under sections 302/ 109, P. P. C. convicted Muhammad Yaqoob, Muhammad Hanif, Iftikhar, Abdaal and Ghulam Ali under sections 148 and 302/109, P.P.C. They were sentenced under section 148, P.P.C. to suffer R.I. f9r three years each and under sections 302/149, P.P.C. to death each on three counts and to pay a fine of Rs.10,000 each or in default to undergo R.I. for a further period of two years on each of the three cents. They were further directed to pay Rs.10,000 as compensation to the legal heirs of each of the deceased. The sentence under section 148, P.P.C. was ordered to operate only if the sentence of death was not confirmed and was to some other term of imprisonment. In that event both the altered sentences were to run concurrently. The five convicts have filed an appeal against their convictions and sentences. An appeal has been filed by the State also assailing the acquittal of Liaqat Ali, Najabat Salabat Ali and, Ahmad Ali of the charge under section 302/109, P.P.C. This judgment shall dispose of both the appeals.
2. Ghulam Ali appellant is the brother of Liaqat Ali, Najabat Ali, Salabat Ali and Ahmad Ali who were acquitted. Their sister is married to Yaqoob appellant. Hanif appellant is son‑in‑law of Yaqoob appellant. The father of Iftikhar appellant is mother's sister's son of Ghulam Ali appellant. Abdaal appellant is nephew of Ghulam Ali appellant. The sister of Hanif appellant is married to Ghulam Ali appellant.
3. Ghulam Ali appellant and his brothers are collaterals of the deceased. Yaqoob appellant is the son of the sister of the father of the deceased.
4. The occurrence took place on 6th of October, 1986 at 5‑30 a.m. at the Railway Station of Nawan Pind, fifteen miles away from Police Station Farooqabad, District Sheikhupura. F.I.R. ' Ex. P.A/1 ort the statement of Amir .Zaman P.W. 11, brother of the deceased, was recorded at the Railway Station on the same date at 8‑00 a.m. by S.I. Shaukat Ali Shah P.W. 13, S.H.O. Police Station Farooqabad. On the basis of this statement, formal F.I.R. Ex. P.A. was drawn at the Police Station on the same date at 8‑45 a.m. by M.H.C. Maqsood‑ ul-Hassan P .W. 1.
5. The prosecution case as alleged in the F.I.R. Ex. PA/1 was that on 6th of October, 1986, the three deceased alongwith Amir Zaman P.W. 11 and Ghulam Ali P.W. (not produced), their brothers, Ghulam Ali son of Kathu P.W. 12, their maternal uncle Mehdi Hasan P.W. 10 and Manzoor Ahmad (not produced), their cousins, reached Railway Station Nawan Pind at about 5‑30 a.m. to board a train for Sheikhupura to appear in a case under section 435, P.P.C. pending in the Court of Mr. Munawar Ahmad Majoka, Magistrate 1st Class. After purchasing tickets from the booking office of the Railway Station, they proceeded towards the railway line. Yaqoob, Hanif, Iftikhar and Abdaal, appellants, all armed with guns, and Ghulam Ali appellant carrying a rifle who had ambushed themselves in the masafarkhana of the Railway Station surprised them. Ghulam Ali appellant raised a lalkara that none from Muhammad Ali etc. should escape, whereupon Yaqoob and Hanif appellants fired at Muhammad Ali deceased from their respective guns hitting him on the face and head. Ghulam ‑Ali appellant from his rifle and Abdaal appellant from his gun fired at Amir Ali deceased hitting him on the various parts of his body. On receipt of the injuries, both the deceased fell to the ground. Iftikhar appellant from his gun fired at Ahmad Ali, deceased who after having been hit started running towards the back side of the Railway Station to save himself. Ghulam Ali appellant from his rifle fired at Ahmad Ali, deceased as a result of which he too fell down. Then all the appellants fired at Ahmad Ali from their respective fire‑arms. As a result of the firing by the appellants, Muhammad Ali, Amir Ali and Ahmad Ali, deceased succumbed to the injuries at the spot. Amir Zaman P.W. 11 and his brother Ghulam Ali (not produced) saved themselves by lying down in a nearby paddy field and Mehdi Hassan P.W. 10, his brother Manzoor Ahmad (not produced) and Ghulam Ali P.W. 12 hid themselves in a sugarcane field on the back side of the Railway Station.
6. The attack was allegedly as a sequel to civil and criminal litigation between the parties. The civil suit in respect of land was decided in favour of the deceased and against Yaqoob appellant etc. On the report of Yaqoob appellant, a case under section 435, P.P.C. was registered against the deceased and two others namely Ahmad and Muhammad Ali. It was pending at the time of occurrence. During the investigation of the case, both the parties fell out and proceedings were initiated against them under sections 107/151, P.P.C.
7. It was further alleged that four days before the occurrence, Liaqat Ali, Najabat, Salabat Ali and Ahmad Ali were heard instigating the appellants to kill the deceased undertaking that they would bear all the expenses. Mirza P.W. 9 and Noor P.W. (not produced) happened to over‑hear the conspiracy while passing in front of the house of Salabat Ali etc.
8. On 6th of October, 1986, S. I. Shaukat Ali Shah P.W. 13 who was then posted as S.H.O. Poilce Station Farooqabad while at the police station at 6‑00 or 6‑30 a.m. received an information of the murder of three persons at Railway Station Nawan Pind. He alongwith other police officials proceeded towards the Railway Station and on reaching there recorded statement Exh. P.A/1 of Amir Zaman P.W. 11 at 8‑00 a.m. He prepared injury statements P. T., P. U. and P. V. and inquest reports P.T/1, P.U/1 and P.V/1 in respect of the dead bodies of Muhammad Ali, Amir Ali and Ahmad Ali respectively and sent the dead bodies to the mortuary for post‑mortem examination. He collected blood‑stained earth from the places where the dead bodies of the deceased where lying and made it into separate parcels vide memo. Exh. P.E., P.F. and P.J. He recovered five empties P. 14 to P.18 of .12 bore from near the dead bodies of Muhammad Ali and Amir Ali deceased and made them into a sealed parcel vide memo Exh. P.H. He also recovered five empties P. 19 to P. 23 of .12 bore and an empty P. 24 of 7 mm. from near the dead body of Ahmad Ali deceased and made them into a sealed parcel vide memo. Exh. P.K. He further recovered from near the dead bodies of Muhammad Ali and Amir Ali deceased four railway tickets P.7 to P.10, two blood‑stained broken wooden pieces P.11 and P.12 of the Butt of a gun and one blood‑stained live cartridge P. 13 of .12 bore and made them into a sealed parcels vide memo. Exh. P.G.
9. The appellants alongwith Salabat Ali and Ahmad Ali were arrested on 7th of October, 1986 while Liaqat and Najabat were arrested on 7th of January, 1987. On 20th of October, 1986, Hanif, Abdaal, Ghulam Ali, Iftikhar and Yaqoob respectively got recovered gun P.25, gun P.26, rifle P.27, gun P.28 and gun P.30 and S.I. Shaukat Ali Shah P.W. 13 too them into possession and made them into sealed parcels vide memo. Exh. P.O., P.P., P.Q., P.R. and P.S. in the presence of Nazar Muhammad P.W. 8 and Murid (not produced). The Chemical Examiner vide his report Exh. P.Y. and the Serologist vide his report Exh. P.Z. opined that the blood‑stained articles recovered in this case were stained with human blood. The empties recovered from the spot and the four guns and one rifle allegedly recovered at the instance of the appellants were sent to the Forensic Science Laboratory, Lahore which observed vide report Exh. P.AA. that out of the ten empties of .12 bore recovered from the spot, seven were not fired from any of the guns recovered from the appellants and three were without percussion caps for which reason nothing could be said as to whether or not the same were fired from these guns. The gun alleged to have been recovered from Abdaal appellant was not in working order in its present condition and test empties could not be prepared for comparison with crime empties. It was further observed that crime empty of 7 mm. recovered from the spot was not fired from the rifle alleged to have got recovered by Ghulam Ali appellant.
10. On the completion of the investigation as above, the appellants were challaned under sections 148 and 302/149, P.P.C. and their acquitted co‑accused were challaned under sections 302/109, P.P.C.
11. Dr. Asif Mahmood, P.W. 7, Medical Officer, District Headquarters Hospital, Sheikhupura on 7th of October, 1986 at 8‑45 a.m. performed post‑mortem examination on the dead body of Ahmad Ali, deceased and found the following injuries: ‑‑
(1) A fire‑arm wound of entrance with blackening around wound measuring 10 c. m. x 5 c. m. fracturing the temporal bone, left upper and lower jaws.
(2) A, wound of exit 12 c.m. x 6 c.m. on the right side of angle of mouth, the right and upper lower jaws were also fractured. Brain matter could be seen in the wound.
(3) A penetrating circular wound of entrance 4 c.m. x 4 c.m. on the front of mid of left chest 2 c. m. below the left nipple.
(4) A fire‑arm wound of entrance 4 c.m. x 4 c.m. x depth not probed on the back of abdomen at mid‑line at 12th thoracic vertabra.
(5) An exit wound 1 c.m. x 1 c.m. the mid of upper part of abdomen and mutiple hard object could be left at left hypochondrium and epigastrium.
(6) Two fire‑arm wound of entrance each 1 c.m. x 1 c.m. on the lateral and upper part of right upper arm.
(7) A fire‑arm wound of entrance 1 c.m. x 1 c.m. on the back of right middle finger with fracture of terminal phalynx.
(8) An exit wound 1 c.m. x 1 c.m. on palmer aspect of right middle finger terminal part.
(9) Two wounds of entrance each one c.m. x one c.m. with fracture of the bone of ring finger on the back.
(10) Fire‑arm wound 2 c. m. x 1 c. m. x skin deep on the medial aspect of right palm.
(11) Fire‑arm wound 2 c.m. x 1 c.m. x skin deep on the inner side of lower part of right fore‑arm.
(12) Wound of exit 1 c.m. x 1 c.m. on the posterior lateral side of right upper arm.
(13) Abrasion 2 c.m. x 2 c.m. each on the back of right and left elbow joint.
(14) Wound of exit 2 c.m. x 1 c.m., on the palmer aspect of right ring finger.
Injury No. 1 was entrance wound. One card‑board was found from the mouth cavity. Blackening was present around injury No. 1. Blackening was also present on injury No. 3. Two pieces of card‑board were found from paricardium. Five pellets were found in the chest wall. One pellet was recovered from right arm. One piece of card‑board was recovered from the liver. Five pellets were recovered from the interior abdominal wall. Blackening was also present at injury No. 4.
In the opinion of the doctor, all the injuries were ante‑mortem. All the injuries except No. 13 were caused by fire‑arm. Injury No. 13 was the result of blunt weapon. Injuries Nos. 1, 3 and 4 were sufficient to cause death individually and collectively in the ordinary course of nature. Death was due to severe shock and haemorrhage on account of‑ injuries to brain, heart and spinal cord. Time between injuries and death was within few mintues and between death and post‑mortem within 25 to 34 hours.
On the same day at 10‑20 a.m., the above doctor conducted post‑mortem examination on the dead body of Muhammad Ali and found the following injuries: ‑-
(1) A fire‑arm wound of entrance 3.05 c. m. x 3.05 c. m. with blackening around the wound on the left temporal region, base of skull was fractured, first cervical vertebrae was fractured and left and right temporal bones were fractured. Lower and upper both left and right jaws were fractured.
(2) Exit wound of injury No. 1 was 14 c.m. x 10 c.m. on the right side of head at the side of right Par.
(3) Wound of entrance of fire‑arm 4 c.m. x 4 c.m. on the chin.
(4) Wound of exit 16 c.m. x 12 c.m. on the site of right parietal bone of skull.
One card‑board and three pellets were recovered from the brain‑matter.
In the opinion of the doctor; all the injuries were ante‑mortem and caused by fire‑arm. All the injuries were sufficient to cause death in the ordinary course of nature individually as well as collectively. Death was due to severe shock and haemorrhage and damage to brain. Time between injuries and death was within few minutes and between death and post‑mortem about 25 to 35 hours.
The above doctor conducted post‑mortem examination on the dead body of Amir Ali the same day at 11‑30 a.m. and found the following injuries thereon: ‑‑
(1) Lacerated wound 5 c.m. x 3 c.m. x bone deep on the occipital region of skull.
(2) Lacerated wound 3 c.m. x 1.5 c,m. x bone deep on the right side of head, 4 c.m. from the fore‑head.
(3) Lacerated wound 3 c.m. x 1 c.m. x bone deep on the back side of right side of head.
(4) A fire‑arm wound 3.5 c. m. x 3.5 c. m. blackening and tattooing ruffed the wound, on the interior right side of chest, 4 c.m. lateral to right nipple.
(5) 8 exit wounds on the posterior lateral side of left chest in an area of 12 c. m. x 12 c. m .
(6) Fire‑arm wound 3.5 c.m. x 3.5 c.m. on the interior medial and upper side of right thigh, blackening and tattooing was present on the wounds.
(7) 4 exit wounds in an area of 10 c: m. x, 8 c. m;,on the sacral region and .4 hard objects could be felt in that area under, the skin. The small incision were given on, these and 4' pellets were recovered.
(8) Lacerated wound 2 c.m. x 0.5 c.m. x bone deep on the back mid of right fore‑arm with fracture of ulna.
One card‑board was found from the stomach. From injury. No. 4, pellets entered the chest cavity from the right chest wall and after fracturing ribs and causing injury to pleura, right lung, heart, liver and spleen made their exit at injury No. 5. From injury No. 6, pellets passed through right thigh and fractured the pelvic bone. One card‑board was found behind pubic symphysis. Four pellets made exit while four were found under the skin on sacrum.
In the opinion of the doctor, all the injuries were ante‑mortem. Injuries Nos. 4, 5, 6 and 7 were caused by fire‑arm while injuries Nos. 1, 2, 3 and 8 were caused by blunt weapon. Death was due to severe shock and haemorrhage on account of injuries Nos. 1, 4 and 6 which were individually as ‑ well as collectively sufficient to cause death in the ordinary course of nature. Time between injuries and death was within few minutes and between death and post‑mortem within 25 to 35 hours.
12. At the trial, the appellants pleaded not guilty to the charge framed against them under sections 148 and 302/149, P.P.C. Similarly the four acquitted co‑accused pleaded not guilty to the charge framed against them under section 302/109, P.P.C. When examined under section 342, Cr.P.C. they denied the prosecution case and the recoveries attributed to them. The appellants, however, admitted the civil and criminal litigation between the parties. They further admitted their relationship inter se. Liaqat Ali and his three brothers also in their statements denied the prosecution case as regards conspiracy against them. None of the accused made a statement on oath under section 340(2), Cr.P.C. in dis‑proof of the allegations against them. Muhammad Yaqoob appellant produced a copy of the report under section 173, Cr.P.C. and interim orders in the case under sections 148 and 307/436/149, P.P.C. However, no oral evidence was led by the appellants and their co‑accused.
13. The prosecution in support of its case examined thirteen witnesses who included Dr. Asif Mahmood P.W. 7 who conducted autopsy on the dead bodies, Nazar Muhammad P.W. 8, who deposed to the recoveries attributed to the appellants, Mirza P.W. 9, a witness of the conspiracy, three eye‑witnesses namely Mehdi Hasan, P.W. 10, Amir Zaman P.W. 11 (complainant) and Ghulam Ali son of Kathu P.W. 12 and S.I. Shaukat Ali Shah P.W. 13 who investigated the case. The learned trial Court after appraising the evidence convicted and sentenced the appellants but acquitted the four co‑accused of the charge of conspiracy.
14. Learned counsel for the appellants has assailed the convictions and sentences on the, grounds that the eye‑witnesses examined by the prosecution are admittedly inimical and interested and their testimony could not be given credence without un‑impeachable independent corroboration, that the ocular account does not accord with the medical evidence and that the recovery of fire‑arms attributed to the appellants has not only remained unsubstantiated but also lost any incriminating significance in view of the fact that none of the empties recovered from the spot hast matched with them. On the other hand, the learned Assistant Advocate‑General and learned counsel for the complainant while supporting the impugned judgment have challenged the acquittal of Liaqat Ali, Najabat Ali, Salabat Ali and Ahmad Ali of the charge of conspiracy.
15. As regards the motive, Amir Zaman P.W. 11 who is the brother of the deceased and the complainant in the case deposed that his father purchased land from the father of Yaqoob appellant. Yaqoob appellant instituted a suit to pre‑empt the sale. This suit was decided against Yaqoob appellant. Then Hanif appellant instituted a declaratory suit in respect of different property against the deceased, their brothers, sister and mother as well as Yaqoob appellant. This suit too was decided in favour of the deceased etc. On 6th of December, 1985 on the report of Yaqoob appellant, a case under sections 148 and 307/436/149, P.P.C. was registered against the three deceased and two others. This case was pending. During the investigation of the case, both the parties attacked each other and they were proceeded against by the police under sections 107,/151, Cr.P.C. These proceedings also were pending at the time of occurrence. The earlier civil litigation which terminated in favour of the complainant party and pendency of criminal litigation between the parties at the time of occurrence is not controverted. While the complainant party would have felt incensed against the appellants for their having dragged them in litigation, the appellants having been vanquished would have felt revengeful. The hostility between the parries being inveterate, the motive was clearly two‑pronged; it could provoke aggression and also prompt false implication.
16. So far as the recovery of fire‑arms is concerned, S.I. Shaukat Ali Shah P.W. 13 deposed that he arrested the appellants on 7th of October, 1986 and on 20th of October, 1986, Hanif, Abdaal, Ghulam Ali, Iftikhar and Yaqoob respectively produced gun P.25, gun P.26, rifle P.27, gun P.28 and gun P.30 and he took them into possession and made them into separate sealed parcels vide memoranda Exhs. P.O., P.P., P.Q., P.R. and P.S. According to him, he effected the recoveries in the presence of Murid and Nazar P.Ws. Murid was not produced at the trial. Nazar Muhammad P.W. 8 supported him. HE stated that the appellants while in custody led to the recovery of the above fire‑arms from their deras. On close scrutiny, however, these recoveries appear dubious. Out of the fire‑arms, rifle P.27 of Ghulam Ali, gun P.28 of Iftikhar and gun P.30 of Yaqoob were licensed. No reason, plausible or otherwise, is apparent from the record for the belated recovery of these fire‑arms; thirteen days after the arrest the appellants. Nazar Muhammad stated in his cross‑examination that during the period of 14/15 days from the registration of the case till the recovery of weapons, he remained associated with the police, the police had been raiding the deras and houses of the appellants in his presence but nothing incriminating was recovered from there. He further stated that on the day of the recoveries, the police after arriving at the dera of Ahmad Ali, had summoned the villagers and the people who collected there hailed from the brotherhood of the complainant, the accused and other tribes who were independent persons. However, the police did not associate any independent person while effecting the recoveries. Nazar Muhammad is admittedly related to the deceased and on account of the hostility between the parties, he cannot be treated as an independent witness. S.I. Shaukat Ali Shah P.W. 13 on 6th of October, 1986 had recovered from the spot ten empties of .12 bore P.14 to P. 23 and one empty of 7 mm. P.24. These empties and the weapons alleged to have been got recovered by the appellants were sent to the Forensic Science Laboratory. Its report is Exh. P. A A. According to it, out of the ten empties of .12 bore, three were without percussion caps and did not possess identifiable data. The remaining seven empties of .12 bore and the empty of 7 mm. were found not, having been fired from the guns anti rifle recovered from the appellants. In these circumstances, the recovery of fire‑arms at the instance of the appellants not only is doubtful but also fades into insignificance in view of the report o the Forensic Science Laboratory.
17. The ocular account was furnished by Mehdi Hasan P.W. 10, Amir Zaman P.W. 11 and Ghulam Ali P.W. 12. They are respectively the first paternal cousin, the brother and the maternal uncle of the deceased. They stated that on the day of occurrence at about 5 or 5.30 a. m. they alongwith the three deceased and two others namely Manzoor Ahmad and Ghulam Ali son of Muhammad Siddiq (not produced) arrived at Railway Station Nawan Pind to catch a train for, Sheikhupura as they were to appear in the Court of Mr. Manzoor Ahmad Majoka, Magistrate in security proceedings against them. After purchasing tickets from the booking office, they entered the Railway Station. They had covered a little distance when Yaqoob, Hanif, Iftikhar and Abdaal, appellants carrying guns and Ghulam Ali, appellant armed with a rifle emerged from the masafarkhana. On the lalkara of Ghulam Ali that none should escape, Yaqoob and Hanif from their guns fired at Muhammad Ali deceased hitting him on the face and head. Abdaal appellant from his gun and Ghulam Ali appellant from his rifle fired…
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