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Petitioner: Muhammad Mansha VS Respondent: The State
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: Muhammad Mansha vs The State Case No.:Criminal Appeal Nos. 740, 187-J of 2008 and Murder Reference No. 150 of
JUDGMENT
Reported As: KLR 2013 Criminal Cases 226 Result: Sentence altered. Judgment JUDGMENT MALIK SHAHZAD AHMAD KHAN, J. - This judgment shall dispose of Criminal Appeal No. 740 of 2008, preferred by appellant Muhammad Mansha, Criminal Appeal No. 187-J of 2008, preferred by appellant Haider Ali and Murder Reference No. 150 of 2008, sent by the learned Trial Court for confirmation or otherwise or the sentence of death awarded to Muhammad Mansha appellant, as all these matters have arisen out of the same judgment dated 27.06.2008, passed by the learned Addl. Sessions Judge, Toba Tek Singh, in caise F.I.R. No. 78, dated 19.02.2007, offence under Sections 302, 324, 392, 353, 186, 440, 411 and 34, P.P.C., registered at Police Station Saddar Gojra, District Toba Tek Singh, whereby, Muhammad Mansha, appellant was convicted under Section 302(b), P.P.C, for committing the murder of Tanveer (deceased) and sentenced to death with the direction to pay Rs. 1,06,000/- (rupees one lac) as compensation to the legal heirs of deceased Tanveer as required under Section 544-A of the Code of Criminal Procedure and in default, thereof, to undergo six months. Muhammad Mansha appellant was further convicted under Section 392, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous imprisonment for ten years with a fine of Rs. 10,000/- (rupees ten thousand) and in default, thereof, to undergo simple imprisonment for six months. He was also convicted under Section 353, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous, imprisonment two years. He was further convicted under Section 324, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous imprisonment for ten years with a fine of Rs. 10,000/- (rupees ten thousand) and in default, thereof, to further undergo simple imprisonment for six months. Muhammad Mansha appellant was also convicted under Section 440, P.P.C, read with, Section 34, P.P.C, and sentenced to rigorous imprisonment for three years with fine of Rs. 10,000/- (rupees ten thousand) and in rif fault, thereof, to further
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undergo simple imprisonment for six months. Haider Ali (appellant) was convicted under Section 392, P.P.C, read with Section 34, P.P.G, and sentenced to rigorous imprisonment for ten years with a fine of Rs. 10,000/- (rupees ten thousand) and in default, thereof, to undergo simple imprisonment for six months. He was also convicted under Section 353, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous imprisonment for two years. He was further convicted under Section 324, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous imprisonment. For ten years with a fine of Rs.-10,000/- (rupees ten thousand) and in default thereof to further undergo simple imprisonment for six months. Haider Ali (appellant) was also convicted under Section 440, P.P.C, read with Section 34, P.P.C^ and sentenced to rigorous imprisonment for three years with fine of Rs. 10,000/- (rupees ten thousand) and in default, thereof, to further undergo simple imprisonment for six months. Muhammad Rafique alias Naveed, co-convict of the appellants was convicted under Section 392, P.P.C, read with Section 34 P.P.C, and sentenced to rigorous imprisonment for the years with a fine of Rs. 10,000/- (rupees ten thousand) and in default, thereof, to undergo simple imprisonment for six months. He was also convicted under Section 353, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous imprisonment for two years. He was further convicted under Section 324, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous imprisonment for ten years with a fine of Rs. 1,000/- (rupees ten thousand) and in default, thereof, to further undergo simple imprisonment for six months. Muhammad Rafique alias Naveed, co-convict of the appellants was also convicted under Section 440, P.P.C, read with Section 34, P.P.C, and Sentenced to rigorous imprisonment for three years with fine of Rs. 10,000/- (rupees ten thousand) and in default, thereof, to further undergo simple imprisonment for six months. All the sentences awarded to the appellants and Muhammad Rafique alias Naveed, co-convict of the appellants were ordered to run concurrently. They were also given the benefit I f Section 38'2-B of the Code of Criminal Procedure. It is pertain A to mention here that Muhammad Rafique alias' Naveed, co-convict of the appellants did not file any appeal against his convictions and sentences. 2. Brief facts of the case, as disclosed by Muhammad Bashir, complainant (PW-11) in his 'Fard Biyari (Exh-PF), on the basis of which formal F.I.R. (Exh-PF/1) was registered, are that he (complainant) was resident of Chak No. 326/G.H. He (complainant) alongwith his son Tanveer Ahmad (deceased) had established a hotel for tea at Adda Mongi on the bank or canal. On 19.02.2007, Maqsood Ahmad (PW-12) and Muhammad Irfan (given up PW) also came there to see them. At about 05.15 p.m., three persons who were riding on a motorcycle which was without registration number passed near their hotel at a high speed and went towards Gavair Canal. Meanwhile, Shah Nawaz (PW-13) raised hue end cry that his motorcycle, applied for, 'Marka' Ravi, silver coloured, engine and chassis No. HKFO3E4909 has been snatched alongwith cash amounting to Rs. 7000/- (rup Hs seven thousand) and mobile phone Sony Ericsson. Meanwhile, the police of police post Mongi Bangla, Gojra started chasing the accused persons on official vehicle No. TSC-5364, whereupon, accused persons made a fire shot which landed on front screen of the official vehicle and its major portion was broken. All the three accused persons left their motorcycle on road and concealed themselves in the sugarcane crop. Meanwhile, he (complainant), Tanveer Ahmad (deceased), Muhammad Irfan (given up PW), Maqsood Ahmad (PW-12) also came there. One accused ran towards Chak No. 244/G.B. Tanveer Ahmad (deceased) tried to apprehend him, upon which, said accused made a
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straight fire shot which landed on the left side of neck of Tanveer Ahmad (deceased). They (complainant party) took care of the deceased who succumbed to the injuries. The complainant Muhammad Bashir, in F.I.R. (Exh-PF/1) has further stated that few days prior to the occurrence, Muhammad Rafique, co-convict of the appellants, Muhammad Mansha and Haider Ali (appellants) came at his hotel and took tea and amongst them, Muharram Mansha (appellant) has committed the murder of Tanveer Ahmad (deceased) by making fire shot with his pistol. 3. Muhammad Mansha, Haider All (appellants) and Muhammad Rafique alias Naveed, co-convict or the appellants, all were arrested in this case on 26.02.2007 by Muhammad Quresh, S.I. (PW-14). At the time of their arrest, their physical search was made. On personal search or Muhammad Mansha (appellant), .30 bore pistol (P-6) was recovered from right fold of his Shalwar, which was taken into possession vide recovery memo. Exh-P1. On personal search of Muhammad Rafique, co- convict of the appellants, .30 bore pistol (P-7) was recovered from right fold of his Shalwar, which was taken into possession vide recovery memo. Exh-PM whereas, on personal search of Haider Ali (appellant), .30 bore pistol P-8 (inadvertently it has been mentioned in the statement of PW-14 as P-9) was recovered from right fold of his Shalwar, which was taken into possession vide recovery memo. Ex-PN. On 02.03.2007, the appellants alongwith their co-convict . Muhammad Rafique alias Nave-rl got recovered motorcycle (P-5), which was taken into possession vide recovery memo. Exh-PE. On 12.03.2007. Muhammad Mansha (appellant), while in police custody, after making disclosure, got recovered mobile phone Sony Ericsson (P-9), which was taken into possession vide recovery memo. Exh.PC. On the same day i. e. 12.03.2007. Muhammad Rafique alias Naveed, co- convict of the appellants, while in police custody, after making disclosure, got recovered one note (P-10) of the denomination of Rs. 1000/-, which was taken into possession vide recovery memo. Exh.PB. On the same day i. e. 12.03.2007. Haider Ali (appellant), while in police custody, after making disclosure, got recovered one note (P- 11) of the denomination of Rs. 1000/-, which was taken into possession vide recovery memo. Exh.PA, (It is noted that Muhammad Quresh, S.I. (PW-14) in his statement he inadvertently mentioned the year 2006 in all the above underlined dates instead of year 2007 whereas, the occurrence took place on 19.02.2007). After completion or investigation, the challan was prepared and submitted before the learned Trial Court. The learned Trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure ; 1898, framed charge against the appellants and their co-convict Muhammad Rafique alias Naveed on 11.06.2007, to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution produced fifteen witnesses,. During the trial. Muhammad Waris 563/C (PW-10) Muhammad Bashir, complainant (PW11), Maqsood Ahmad (PW- 12) and Shah Nawaz (PW-13) furnished the ocular account of this case, It is pertinent to mention here that Muhammad Bashir, complainant died after the recording of his examination-in-chief and in this respect, the learned Trial Court recorded the statement of Muhammad Iqbal 592/C as PW-15 who produced the death certificate of Muhammad Bashir, complainant as Exh-PR. Shah Nawaz (PW-13) was also the witness of recovery alongwith Nadeem Sajid 843/C (PW-1) regarding mobile phone (P-9) at the instance of Muhammad Mansha (appellant), One Currency note (P-10) of the denomination of Rs. 1000/- at the ir lance or Muhammad Rafique, co-convict of the appellants, one currency note (P-11) of the denomination of Rs. 1000/- at the Instance of Haider Ali (appellant). Muhammad Boota 205/C (PW-2) and Farzand Ali 554/C (PW-5) are the witnesses of recovery of motorcycle (P-5). The medical evidence was furnished by Dr. Waseem Ullah Khan (PW-7), -.Who conducted the postmortem examination on the dead-body of Tanveer Ahmad (deceased).
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Muhammad Quresh, S.I. (PW-14) is the Investigating Officer of the case. Muhammad Yaqub 385/C (PW-3), Nazir Ahmad, S.I (PW-4), Zafar Iqbal, Patwari (PW-6), Abdul Ghafoor 304/C (PW-8) and Muhammad Akhtar Shah (PW-9) are the formal witnesses. The prosecution also produced documentary evidence in the shape of recovery memo, of one currency note of the denomination of Rs. 1000/- (P-11) at the instance of one currency note of the denomination of Rs. 1000/- (P-10) at the. Instance of Muhammad Rafique alias Naveed, co-convict of the appellants (Exh-PB), recovery memo. Of mobile phone Sony Ericsson (P9) at the instance of Muhammad Mansha appellant (Exh-PC), recovery memo, of last worn clothes or deceased,(Exh-PD), recovery memo, of motorcycle P-5 (Exh-PE), rough site plan of the place of recovery of motorcycle (Exh-PE/1), statement of complainant for registration of case (Exh-PF), F.I.R. (Exh- PF/1), scaled site plan, in duplicate, of the place 'of occurrence (Exh-PG & Exh-PG/11), post-mortem report alongwith pictorial diagram of deceased' Tanveer Ahmad (Exh-PH and Exh-PH/1), injury statement (Exh-Pl), inquest report (Exh- PJ), recovery memo, of blood-stained earth (Exh-PK), recovery memo, of .30 bore pistol (P-6) at the instance of Muhammad Mansha appellant (Exh-PL), recovery memo. Of .30 bore pistol (P-7) at the instance of Muhammad Rafique alias Naveed, Co-convict of the appellants (Exh-PM), recovery memo, of .30 bore pistol (P-8) at the instance of Haider Ali appellant (Exh-PN), identification memo. Of motorcycle P-5 (Exh-PO), rough site plan of the place of occurrence (Exh-PP), rough site plan of the place of record of mobile phone P-9 and currency notes P-10 & P-11 ;Exh-PQ), death certificate of Muhammad Bashir, complainant (Exh-PR), report of Chemical Examiner (Exh-PS), report of Serologist (Exh-PT) and closed Its evidence. The statements of Muhammad Mansha and Haider Ali (appellants) alongwith their co-convict Muhammad Rafique alias Naveed, under Section 342 of the Code of Criminal Procedure, were recorded on 08.04.2008. They refuted the allegations levelled against them and processed their innocence. While answering to question "Why this case against you and why he PWs have deposed against you?" Muhammad Mansha, appellant replied as under:- 'The identity of culprits could not be ascertained. The first part of F.I.R, reveals that the culprits were not acquainted with PWs, therefore, in the whole narration of occurrence the accused were not nominated. Even in first part of statement of complainant in Court the culprits were not nominated. It means that after recording first part of F.I.R, the second part was deferred till the nomination of the accused by T. Iess. Similarly in first pan or statements of the PWs in investigation under Section 161, Cr.P.C, and in Court the culprits were not nominated. It appears that after recording first part of statements of PWs under Section 161, Cr.P.C., the remaining statements were deferred. The second part of the statements was recorded by the I.O. Himself and not on the statements of PWs after due deliberation and guess work. I did not participate in the occurrence and was falsely roped in this case. The PWs deposed against me on the asking of police." Haider Ali (appellant) and Muhammad Rafique alias Naveed, L- co-convict of the appellants in answer to the above- mentioned question, also replied on the same lines. The appellants and their co-convict Muhammad Rafique alias Naveed neither opted to give evidence on Oath as provided under Section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against them nor producer: ly evidence in their defence. 5. Learned counsel for the appellants, in support of these appeals, contends that this F.I.R, was got registered by Muhammad Bashir, complainant who though appeared before the learned Trial
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Court as PW-11 but he was not cross-examined on behalf of the appellant as he died on 15.12.2007, therefore, his evidence cannot be used against the appellants. So far as the remaining evidence is concerned, learned counsel for the appellants contends that none of the witnesses while narrating the story stated that it was Muhammad Mansha (appellant) who fired at the deceased though at the end of their statements, they implicated Muhammad Mansha (appellant); that even Muhammad Waris 563/C (PW-10), in his cross-examination, has stated that now he has come to know that it was Muhammad Mansha who fired at, the deceased; that no identification parade was conducted in this case; that in fact, there is no evidence against the appellants. So far as the recoveries are concerned, learned counsel for the appellants contend that it was the case of the prosecution that motorcycle (P-5) was thrown on the bank of canal by the accused persons l t later on, same motorcycle, on the joint Plantation of the appellants and Muhammad Rafique alias Naveed, co-convict of the appellants, was allegedly recovered from the sugarcane crop, thus; the alleged recovery of motorcycle (P-5) carries no value; that no description or the mobile phone was given in the F.I.R, or disclosed before the learned Trial Court; that even no description of currency notes (P-10 & P-11), allegedly recovered at the instance of Muhammad Rafique alias Naveed, co- convict of the appellants and Haider Air (appellant) was given in the F.I.R. (Exh-PF/1). Further contends that none of these recoveries was put to either of the appellants while recording their statements under Section 342 of the Code of Criminal Procedure, therefore, this evidence cannot be used against the appellants; that the case of the prosecution against the appellants from all angles is of doubtful nature; that the prosecution has miserably failed to prove its case against the appellants beyond -the shadow of doubt; thUa. Both th&se appeals be accepted and the appellants maybe acquitted from the charges. 6. Notice was issued to toe complainant but, it was reported on the notice that the complainant has died Ch 15.12.2007, upon which, notice was issued to his son but none is present on behalf of son of the complainant. 7. Learned Deputy Prosecutor General vehemently opposes both these appeals on the grounds that the F.I.R, was got registered by Muhammad Bashir (PW-11) whose, real son was done to death and he has no enmity with the appellants or with Muhammad Rafique alias Naveed, co-convict of the appellants for their false implication in the case; that examination-in-chief of Muhammad Bashir, complainant (PW-11) was recorded on 13.07.2007 but he was not cross-examined by the learned defence counsel and he died on 15.12.2007, therefore, his evidence can be used against the appellants; that apart from the evidence of the complainant, there are statements or other eye- witnesses namely, Muhammad Waris 563/C (PW10), Maqsood Ahmad (PW-12) and Shah Nawaz (PW-13); that Maqsood Ahmad r! (PW-12) and Shah Nawaz (PW-13), in their statements before the learned Trial Court, have stated that it was the appellant Muhammad Mansha who fired at the deceased and the said fact was also mentioned in their statements recorded under Section 161 of the Code of Criminal Procedure; that both the witnesses have no enmity with the appellants for their raise implication in the case; that the prosecution case got full support from the medical evidence furnished by Dr. Waseem Ullah Khan (PW-7); that the prosecution case is further corroborated by the recovery of .30 bore pistols and recovery of snatched articles from the possession or the appellants and from Muhammad Rafique alias Naveed, co-convict of the appellants; that the prosecution has proved its case against the appellants from all angles; that the sentences were rightly awarded to the appellants by the learned Trial Court and the Same may be maintained, appeal may be dismissed and Murder Reference be answered in the alternative. 8. We have heard the arguments of learned counsel for the appellants, the learned Deputy
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Prosecutor Gene-nl and have also gone through the record with their able assistance. 9. The occurrence in this case took place on 19.02.2007 at 05.15 p.m., in the fields or Chak No. 244/G.B situated within the jurisdiction of Police Station Saddar Gojra, District Toba Tek Singh. The matter was reported to the police on the same evening (19.02.2007) at 06.45 p.m. By Muhammad Bashir, complainant (PW-11) through his 'Fard Biyan' (Exh-PF), on the basis of which, formal F.I.R. (Exh-PF/1) was also registered on the same night at 07.45 p.m. The distance between the place of occurrence and the police station is eleven miles. Considering the circumstances of the case, time of occurrence, place of occurrence and the distance between the place of occurrence and the police station, we are of the view that there was no delay in . Reporting the matter to the police. 10. The ocular account of the prosecution was furnished by Muhammad Waris 563/C (PW-10), Muhammad Bashir, complanar (PW-11), Maqsood Ahmad (PW-12) and Shah Nawaz (PW-13). We have noted that examination-in- chief of Muhammad Bashir complainant (PW-11) was recorded by the learned Trial Court on 13.07.2007 and cross-examination on the said witness was reserved on the - request of learned defence counsel. Thereafter, the complainant Muhammad Bashir (PW-11) did not appear before the learned Trial Court on 18.07.2007, 30.07.2007, 11.08.2007 and on 05.09.2007. On 05.09.2007, bailable - warrants of arrest of the complainant were issued. On 12.09.2007, learned counsel for the complainant stated that the complainant was ill (The name of Bashir complainant has been inadvertently typed as Shabhir). Thereafter, on two dates (29.09.2007 and 08.10.2007), the learned Presiding Officer was on leave. On 17.10.2007, again complainant did not appear before the learned Trial Court, anyhow, he appeared on 29.10.2007. On 12.11.2007, the learned Presiding Officer was on leave. On 21.11.2007 and 03.12.2007, the complainant was not present and he died on 15.12.2007. Cross-examination on the complainant could not be recorded due to his death on 15.12.2007, therefore, we cannot rely upon the statement of Muhammad Bashir, complainant (PW- 11) who could n6t be subjected to cross- examination. Anything if the statement of Muhammad Bashir, complainant (PW-11) is excluded from consideration, even then there remains the evidence of other eye-witnesses of the occurrence namely, Muhammad Waris 563/C (PW-10),, Maqsood Ahmad (PW-12) and Shah Nawaz (PW-13), In this case, the star eye-witness of the prosecution is Shah Nawaz (PW-13) because motorcycle (P-5), mobile phone (P-9) and cash amount of Rs. 7000/- (rupees seven thousand) were snatched by the accused persons from the said witness. The examination-in-chief of Shah Nawaz (PW-13) recorded by the learned Trial Court on 13.07.2007 is reproduced hereunder for ready reference:- "I am resident of Chak No. 148/GB. At about 5.00 p.m. I on my motorcycle which as applied for "Ravi Marka" silver engine and Clasis No. HKF03E4909, was going on the bank or Gogera Branch canal and when I had gone a little ahead, in front Of my three persons armed with fire-arms stopped me and snatched order or cycle from me. All the three persons threatened me to murder. After snatching the motorcycle they ascended on my motorcycle and went on the bank of the said canal or Moongi Bangla. I was armed and was following the culprits and was raising alarm because the culprits had snatched Rs. 7,000/- and mobile Sony Ericsson from me and had fled away. On my alarm Muhammad Bashir son of Asmat Ullah caste Arain resident of Chak No. 326/GB Police Station Chutiana presently owner of the hotel ar Moongi Bangia, his son Muhammad Irfan PW, Tanveer deceased and Maqsood son of Ashraf caste Arain resident of Chak No. 336/GB Police Station Chutiana on hearing my alarm joined us in pursuing the culprits, In the meantime the service vehicle of police No. 5364/TSC of police post Moongi Bangla was also following the culprits. The
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culprits were armed with fire-arms who resorted to aimed fire at the police vehicle which damaged the vehicle. All the three culpri.;; threw motorcycle at Katcha road and entered the sugarcane crop. We and the police continued the pursuit. Taking advantage of the sugarcane crop the culprits escaped towards Chak No. 244/GB. But one of the culprits separated himself from the others while running, whom Tanveer deceased tried to apprehend. That culprit fired at Tanveer hitting on the left side of his neck with the intention to murder him who fell injured. We attended Tanveer who had succumbed to the injury at the spot. Few days prior to the occurrence the accused Muhammad Rafique son of Abdul Hameed caste Faqeer resident Of Naimat Abad, Data Colony, Faisalabad, Muhammad Mansha son of Muhammad Akram caste Balkhana Jat resident of Chak No. 664/5GB police station Peermahal and Haider Ali son of Muhammad Hanif caste Malik resident of Mohallah Naimat Abad, Sahianwala, Faisalabad had" taken tea at the hotel of Muhammad Bashir complainant whom Muhammad Bashir complainant identified out of which Muhammad Mansha had fired at Tanveer deceased with pistol due to which he died. These three persons had murdered Tanveer Ahmed deceased. My motorcycle, cash Rs. 7,000/- and mobile phone Sony Ericsson was snatched and the service vehicle was damaged by tiring. All the three accused had done excess. I had witnessed the occurrence. I had identified my motorcycle after recovery vide identification memo. Exh.PO. On 12.3.2007 Muhammad Mansha accused while in police custody made disclosure and in support of that disclosure led to the recovery of mobile phone P-9 which was taken into possession by the I.p. Vide recovery memo. Exh.PC attested by me and Nadeem Sajid Constable. On the same day Muhammad Rafique accused while in police custody made disclosure and in support of that disclosure Muhammad Rafique accused led to the recovery of currency note of the denomination or Rs. 1000/- P-10 which was taken into possession by the I.O. Vide recovery order. Fino. Exh.PB attested by me and Nadeem Sajid Constable. On the same day Haider Ali accused while in police custody made disclosure and in support of that disclosure Haider Ali accused led to the recovery of currency note of the denomination of Rs. 1000/- P-11 which was taken into possession by the I.O. Vide recovery memo. Exh.PA attested by me and Nadeem Sajid Constable." The evidence of other eye-witnesses namely, Muhammad Waris 563/C (PW-10) and Maqsood Ahmad (PW-12) is also on the same lines. The above-mentioned eye-witnesses…
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