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Petitioner: SAIF ULLAH and 2 others VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: SAIF ULLAH and 2 others vs The STATE Case No.: Criminal Appeal No, 30 and Murder Reference No.23 of 2009 Date of Judgment:2013-04-11 Reported As: 2015 P Cr. L J 820 Result: Appeal accepted
JUDGMENT
JUDGMENT MALIK SHAHZAD AHMAD KHAN, J.---Saif Ullah, Muhammad Alam alias Goga and Hafiz Tanveer Ahmad appellants were tried in case FIR No, 371, dated 11-12-2006, registered at Police Station Kakrali, District Gujrat in respect of offences under section 302, P.P.C. (section 34 of P.P.C. Added at the time of framing of the charge). After conclusion of the trial, the learned trial Court vide its judgment dated 6-1-2009 has convicted and sentenced the appellants as under:-- Saif Ullah, Muhammad Alam alias Goga and Hafiz Tanveer Under section 302(b)/34, P.P.C. To 'Death' sentence to each appellant for committing Qatl-i-amd of Intizar Ahmad deceased. They were also ordered to pay Rs, 10,00,000 (rupees ten hundred thousand only) each as compensation under section 544-A of Cr.P.C. And in default thereof to suffer simple imprisonment for six months each. 2. Feeling aggrieved, the appellants have challenged their convictions and sentences through Criminal Appeal No, 30 of 2009, whereas, the learned trial Court has transmitted Murder Reference No,23 of 2009 for confirmation or otherwise of the Death sentences of Saif Ullah, Muhammad Alam alias Goga and Hafiz Tanveer appellants. We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 6-1-2009 passed by the learned Additional Sessions Judge, Kharian, District Gujrat. 3. Brief facts of the case as given by the complainant, namely, Riaz Ahmad (P.W.9) in his Ward Biayan' (Exh.PH) on the basis of which the formal FIR (Exh.PH/1) was chalked out, are that he (complainant) was resident of 'Bhadhar' and cultivator by profession. He (complainant) and his younger brother Intizar Ahmad were living in one and the same house. On 11-12-2006, at about 5-00 a.m., Intizar Ahmad (deceased) as per his routine was going to the mosque 'Qureshian' to offer his
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morning prayer. As soon as Intizar Ahmad (deceased) reached at the corner of the house of one Dr. Muhammad Aslam in the street which was a thoroughfare, unknown persons opened fire shots for murderous assault at Intizar Ahmad, which hit on different parts of his body. On hearing the report of firing, he (complainant) reached at the spot along with other relatives and found that Intizar Ahmad had expired. The deadbody of Intizar Ahmad (deceased) was lying in the street and unknown assailants had already decamped from the spot. It was further alleged by the complainant that the cause of murder was not known to him and that as and when he would get the knowledge of the said cause, he would inform the police about the same. The complainant Riaz Ahmad (PW9) is not an eye-witness of the occurrence and he did not name any person as accused in his 'Fard Biayan' Exh.PH on the basis of which the formal FIR (Exh.PH/1) was registered. However, on the same day, (11-12-2006), at evening time, he got recorded his supplementary statement Exh.PJ wherein he implicated the appellants on the basis of information imparted to him by Bashir Ahmad (given up P.W.) and Liaqat Ali (P.W.8). The complainant stated in the above mentioned supplementary statement Exh. PJ that on 11-12-2006 at 6-00 p.m. He (complainant) was sitting at Tateh Khawani' of his deceased brother Intizar Ahmad, where Liaqat Ali (P.W.8) and Bashir Ahmad (given up P.W.) came to him and told that on that day (11-12-2006) at 5-00 a.m. They had seen Saif Ullah appellant armed with Kalashnikov, Hafiz Tanveer Ahmad appellant armed with .12 bore pump action and Muhammad Alam alias Goga armed with .12 bore pump action, while running in the street. The complainant further stated in his above mentioned supplementary statement Exh.PJ that he was sure that his brother Intizar Ahmad was murdered by the appellants because Muhammad Alam alias Goga and Hafiz Tanveer Ahmad (appellants) used to bring women of bad character to the Dera of Saif Ullah appellant where they used to commit illicit inter course with them and against this, Intizar Ahmad deceased complained to Saif Ullah appellant and due to this grudge, the appellants committed the murder of Intizar Ahmad deceased. 4. The appellants namely Saif Ullah and Muhammad Alam alias. Goga were arrested on 24-1-2007 by Sajjad Anwar, SI (P.W.18), whereas, Hafiz Tanveer Ahmad was arrested in this case on 17-10-2007. According to the prosecution case, on 26-1-2007, the appellant Muhammad Alam alias Goga led to the recovery of gun pump action (P-7) and three live cartridges P-8/1-3, which were taken into possession through memo Exh.PE. Likewise, on 27-1-2007, the appellant Saif Ullah led to the recovery of Kalashnikov (P-9) and ten live cartridges P-10/1-10, which were taken into possession through memo. Exh.PF, whereas, on 1-10-2007, the appellant Hafiz Tanveer Ahmad led to the recovery of gun .12 bore Pump action (P-1), which was taken into possession through memo. Exh.PN. After completion of investigation, the challan was prepared and submitted before the court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants namely Saif Ullah and Muhammad Alam alias Goga on 12-7-2007. After the arrest of Hafiz Tanveer Ahmad appellant amended charge was framed against all the appellants on 12-1-2008, to which they pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution produced 18 witnesses, during the trial. Riaz Ahmad (P.W.9) is the complainant of the case. Liaqat Ali (P.W.8) is the witness of waj-takkar, whereas, Bashir Ahmad (P.W.5) and Muhammad Sarwar (P.W.6) are the witnesses of extra judicial confession. Rafique Ahmad (P.W.4) is the witness of motive incident. The medical evidence was furnished by Dr. Nasir Mumtaz (P.W .2). Muhammad Sarwar (P.W.6) is also witness of the recovery of gun pump action P-7 and three live cartridges P-8/1-3 and Kalashnikov P-9 along with ten live bullets P-10/1-10, which were recovered on the pointation of Muhammad Alam alias Goga and Saif Ullah appellants through memo. Exh.PE and Exh.PF, respectively. Khurram Shahzad 945/C (P.W.15) and Faiz Ahmad, ASI (P.W.16) are witnesses of the recovery of gun .12 bore pump action P-11, which was recovered on the pointation
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of Hafiz Tanveer Ahmad appellant through memo Exh.PN. Muhammad Arif, Inspector (P.W.14) and Sajjad Anwar, SI (P.W.18) are the Investigating Officers of the case. Muhammad Iqbal 34/C (P.W.1), Muhammad Iqbal (P.W.3), Muhammad Azeem 926/C (P.W.7), Abdul Rehman 606/MHC (P.W.10), Akhtar Naqash Draftsman (P.W.11), Tasawar Ali, SI (P.W.12), Muhammad Khalid 227/C (P.W.13), Muhammad Arif, SI (P.W.14), Amjad Hussain 1298/C (P.W.17), are the formal witnesses. The prosecution produced documentary evidence in the shape of post mortem report of the deceased Exh.PA, pictorial diagram Exh.PA/1, memo of possession of blood stained earth Exh.PB, memo. Of possession of empty bullets Exh.PC, memo. Of possession of last worn clothes of the deceased Exh.PD, memo. Of possession of gun .12 bore pump action Exh.PE, copy of rough site plan of the place of recovery of gun .12 bore Exh.PE/1, memo. Of possession of Kalashnikov from Saif Ullah appellant Exh.PF, copy of rough site plan of the place of recovery of Kalashnikov Exh.PF, memo. Of possession of gun .12 bore pump action from appellant Exh.PG, copy of rough site plan of place of recovery of .12 bore gun pump action Exh.PG/1, statement of Riaz Ahmad complainant Exh.PH, FIR Exh.PH/1, copy of supplementary statement given by the complainant Riaz Ahmad complainant Exh.PJ, scaled site plan of the place of occurrence in duplicate Exh.PK and Exh.PK/1, warrant of arrest of Hafiz Tanveer Ahmad appellant Exh.PL and report Exh.PL/1, application by the I.O. To summon the appellant Hafiz Tanveer Ahmad confined in District Jail, Gujrat and order Exh.PM, memo of possession of gun .12 bore pump action from Tanvir Ahmad appellant Exh.PN, injury statement of the deceased Exh.PQ, application for conducting post mortem examination of the deceased Exh.PR, inquest report Exh.PS, rough site plan of the place of occurrence Exh.PT, warrant of arrest of Hafiz Tanveer Exh.PU and report Exh. PU/1, application for issuance of warrant of arrest and order Exh.PV, application for proclamation under section 87 of Cr.P.C. Exh.PX, bailable warrants of arrest of Hafiz Tanveer appellant (Exh.CW-1/A), report on the said warrants (Exh.CW-1/B), proclamation against Hafiz Tanveer appellant (Exh.CW-2/A), report on the said proclamation (Exh.CW-2/B), report of chemical examiner Exh.PY, report of serologist Exh.PZ, reports of Forensic Science Laboratory Exh.PAA and Exh.PBB and closed its evidence. The statements of the appellants under section 342, Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case against you and why the P. Ws. Have deposed against you" the appellants have responded as under:-- Saif Ullah "This case which has been got registered at the instance of Riaz Ahmad complainant is baseless, false and foisted. The fact of the matter is that Lt. Gen. Mukhtar Ahmad is my staunch enemy and a close relative of the complainant. Similarly Shafqat S.P. Is inimically disposed towards me because in various Union Council Elections and for the election of Provincial Assembly, his close relative contested those elections and I vehemently opposed them. Lt. Gen. Mukhtar aforementioned had land dispute with me and he wanted to take forcible possession of some parcel of my land, to which I opposed tooth and nail and so both Shafqat S.P. And Lt. Gen. Mukhtar aforementioned joined hands and head together and wanted to wreak vengeance from me. Both the aforementioned officers imported their various relatives from different villages and they prepared false circumstantial evidence. All the P. Ws. Of this are close kith and kin inter se and they after conniving with Riaz Ahmad and the police fabricated a false version and they got this case registered against me which is totally false. This is a case trumpeted up by enemies. I am innocent and I had no reason whatsoever to commit the murder of Intizar deceased. This was totally an unwitnessed occurrence. The names of none of the accused figure in the FIR and late in the day both the officers mentioned above convened together and made Riaz Ahmad complainant as a tool in their hands in order to satisfy the grudge and ill will, which they bore against me. The complainant and most of the other witnesses, they themselves took up
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themselves to be a panacea for all the ailment of the prosecution and have fabricated a case of circumstantial evidence against me. The complainant of this case contested an election for the Naib Nazim of the U. C. Bhadar and in that elections I opposed him tooth and nail and when he was defeated in that elections I jubilated and resorted fireworks and this fact also rankled in his eye like a thorn and he in order to satisfy his ill will and grudge installed himself as a complainant of this case. The case is completely false and coined by me against my adversaries." Muhammad Alam alias Goga and Hafiz Tanveer "The complainant of this case namely Riaz Ahmad contested elections for the seat of Naib Nazim of Union Council of Bhadar and I jubilated resorted to fire works in front of his house. His rival for that seat was a friend of mine and so I rejoiced at his success and this fact ranked in the eye of complainant like a thorn. He had a fight with me also, in which I picked and slapped him. So he subsequently involved me in this case after due deliberations and consultation with Let. Gen. Mukhtar and S.P. Shafqat." Neither the appellants made statements under section 340(2), Cr.P.C. Nor they produced any evidence in their defence. The learned trial Court vide its judgment dated 6-1-2009, found the appellants guilty and convicted and sentenced them as mentioned and detailed above. 6. Learned counsel for the appellants, in support of this appeal, contends that the appellants have falsely been implicated in this case; that the appellants were not named in the FIR which was registered by the brother of the deceased and the complainant simply stated in the FIR that his brother has been murdered by some unknown accused; that the complainant subsequently got recorded his supplementary statement regarding the incident which carries no value in the eye of law; that the complainant was informed by Liaqat Ali (P.W.8) and Bashir Ahmad (given up P.W.) that they had seen the appellants after the occurrence running in the street while holding firearm weapons in their hands but the said Bashir Ahmad was not produced in the witness box and statement of Liaqat Ali (P.W.8) carries no value because he stated that at the relevant time, he along with Bashir Ahmad came out of the house of one Tanveer Ahmad in order to proceed to Rawalpindi in connection with an urgent piece of work but he has not been able to give any rational answer in his cross-examination about the nature of their work at Rawalpindi and moreover, he is a chance witness; that so far as the motive is concerned, complainant did not state anything in the FIR and he stated regarding the motive in his supplementary statement which was to the effect that Hafiz Tanvir Ahmad and Muhammad Alam alias Goga (appellants) used to bring women of easy virtue at the Dera of Saif Ullah (appellant) and the appellants used to commit adultery with them and that against this the deceased complained to Saif Ullah appellant but no such motive was mentioned in the FIR, therefore, no reliance can be placed in this respect; that the evidence of extra judicial confession allegedly made by the appellants before the witnesses carries no value, for the reason, there was no reason with the appellants to make such confession before the witnesses; that it is the case of Bashir Ahmad (P.W.5) that he was present in the house when Saif Ullah appellant had confessed his guilt that he along with Muhammad Alam alias Goga appellant and Tanveer Ahmad appellant had committed the murder of Intizar Ahmad, deceased but had this appellant confessed his guilt in the house of Bashir Ahmad (P.W.5) he could easily have overpowered him as his other family members were also present in his house; that so far as recovery of fire arm weapons at the instance of the appellants and positive reports of FSL are concerned, learned counsel for the appellants contends that it is a corroborative piece of evidence and relevant only if the primary evidence inspires confidence and merely on the basis of recovery and positive reports of Forensic Science Laboratory, conviction of the appellants cannot be sustained; that the prosecution miserably failed to prove its case against the appellants beyond the shadow of doubt, thus, this appeal be accepted and the appellants may be acquitted from the charges.
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8. Learned Deputy Prosecutor-General, for the State, assisted by learned counsel for the complainant, opposes this appeal on the grounds that bona fide of the complainant is clear from the fact that he did not nominate anybody in the FIR and had he any enmity with the appellants he could have easily implicated them in the FIR; that the complainant got recorded his supplementary statement on the same day when he got information from Liaqat Ali (P.W.8) and Bashir Ahmad (given up P.W.), thus, this evidence clearly connected the appellants with the commission of crime; that the evidence of motive has been produced through Rafiq Ahmad (P.W.4) who 'had no enmity with the appellants to falsely implicate them in the case; that the prosecution case is further supported by the evidence of extra judicial confession and none of the witnesses has any enmity with any of the appellants; that ocular account gets support from the medical evidence as there are eleven firearm injuries on the person of the deceased; that one of the appellants namely Hafiz Tanveer remained fugitive from law for a considerable period and his abscondence has been proved through the statement of Muhammad Khalid (P.W.13); that the prosecution case is further corroborated by the evidence of recovery of Kalashnikov P-9 which was recovered on the pointation of Saif Ullah appellant, the recovery of gun pump action P7 which was recovered on the pointation of Muhammad Alam alias Goga appellant and recovery of gun .12 bore from the possession of Hafiz Tanveer Ahmad appellant; that the prosecution case is further corroborated by the positive report of Forensic Science Laboratory (Exh.PAA); that there is no mitigating circumstance in this case; that the sentences of death were rightly awarded to the appellants and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative. 9. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance. 10. Since there is no direct evidence and prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. But if any link in the chain is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the apex Court of the country reported as 'Ch. Barkat Ali v. Major Karam Elahi Zia and another' (1992 SCMR 1047), 'Sarfraz Khan v. The State' (1996 SCMR 188) and 'Asadullah and another v. The State' (1999 SCMR 1034). In the case of Ch. Barkat Ali (supra), the august Supreme Court of Pakistan, at page 1055, observed as under:-- '...Law relating to circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See 'Siraj v. The Crown' (PLD 1956 FC 123). In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused.' In the case of Sarfraz Khan (supra), the august Supreme Court of Pakistan, at page 192, held as under:- '7...It is well settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence.' Further reliance in this context is placed on the case of `Altaf Hussain v. Fakhar Hussain and another' (2008 SCMR 1103) wherein, at page 1105 it was held by the Hon'ble Supreme Court as under:- ' 7....Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain.'
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Keeping in view the parameters, laid down in the above-mentioned judgments, we will discuss each part of the prosecution evidence, separately. 11. The prosecution case is based on the following pieces of evidence:-- (i) Wajtakkar; evidence. (ii) Evidence about extra judicial confession of Saif Ullah and Muhammad Alam alias Goga appellants. (iii) Motive. (iv) Medical evidence (v) Recoveries 12. (i) `Wajtakkar' evidence. As mentioned earlier, the occurrence in this case was unseen which took place in the month of December, i,e, 11-12-2006 at 5-00 a.m. In village "Bhadhar". The complainant Riaz Ahmad (P.W.9) is not an eye-witness of the occurrence and he did not name any accused in his `Fard Biayan' Exh.PH on the basis of which the formal FIR Exh.PH/1 was registered. However, on the evening of 11-12-2006 he got recorded his supplementary statement Exh.PJ wherein he implicated the appellants on the basis of information imparted to him by Bashir Ahmad (given up P.W.) and Liaqat Ali (P.W.8). The complainant stated in the above mentioned supplementary statement Exh.PJ that on 11-12-2006 at 6-00 p.m. He was sitting at Tateh Khawani' of his deceased brother Intizar Ahmad, when Liaqat Ali (P.W.8) and Bashir Ahmad (given up P.W.) came to him and told that on that day (11-12-2006) at 5- 00 a.m. They had seen Saif Ullah appellant armed with Kalashnikov, Hafiz Tanveer Ahmad appellant armed with .12 bore pump action and Muhammad Alam alias Goga appellant armed with .12 bore pump action, while running in the street. The complainant further stated in his supplementary statement Exh. PJ that his brother Intizar Ahmad was murdered by the appellants because Muhammad Alam alias Goga and Hafiz Tanveer Ahmad (appellants) used to bring women of bad character to the Dera of Saif Ullah appellant where they used to commit illicit inter course with them and Intizar Ahmad deceased complained to Saif Ullah appellant and due to this grudge the appellants committed the murder of Intizar Ahmad deceased. We have noted that both the above mentioned witnesses of Wajtakkar namely Liaqat Ali (P.W.8) and Bashir Ahmad (given up P.W.) were not the residents of village `Bhadhar' where this occurrence took place. Liaqat Ali (P.W.8) is resident of a different village, i,e, village Sidh, where as, Bashir Ahmad (given up P.W.) was resident of village Kotla. In order to establish their presence at the spot, at the time of occurrence which took place in the darkness of night, i,e, on 11-12-2006 at 5-00 a.m., Liaqat Ali (P.W.8) stated that Bashir Ahmad (given up P.W.) was his `Khalu' and his daughter Mst. Sajida Parveen was married to one Tanveer Ahmad resident of village Badhar'. He further stated that Bashir Ahmad (given up P.W.) came to the house of his daughter at village `Bhadhar' and he also summoned him (Liaqat All P.W.8) to village `Bhadhar' as he (Bashir Ahmad given up P.W.) had to go to Rawalpindi due to some piece of work, therefore, he (Liaqat All P.W.8) went to Bhadhar' and stayed there in the house of Tanveer Ahmad for the night and on 11-12-2006 at 5-00 a.m. He saw the appellants while armed with different weapons running in the street. Liaqat Ali (P.W.8) is `mamoonzad' (maternal cousin) of the deceased Riaz Ahmad and this fact was brought on the record during the cross-examination of the complainant Riaz Ahmad. He claimed that after the occurrence he saw the appellants near the house of one Sher All Butt. It was so mentioned in the FIR that the occurrence took place near the house of one Dr. Muhammad Aslam. Liaqat Ali (P.W.8) has further stated during his cross-examination that the house of above mentioned Dr. Muhammad Aslam and Sher Ali Butt are located in a street and the distance between the said two houses was 60 Karams. The relevant part of the statement of Liaqat Ali (P.W.8) at page No, 61 of the Paper-book reads as under:--
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"Dr. Aslam is also known to me. The distance between the house of Sher Ali Butt and Dr. Muhammad Aslam is 60 Karams. The house of Dr. Aslam is towards the west of the house of Sher Ali Butt. All these houses are located in a street. There are about 15/20 houses lying in the street where the house of Sher Ali is located. The house of Saif Ullah accused lies towards north west of the house of Sher Ali Butt at a distance of about 15/20 Karams." It is evident from the perusal of the above mentioned portion of the statement of Liaqat Ali (P.W.8) that the house of Dr. Muhammad Aslam where the occurrence took place and the house of Sher Ali Butt where he saw the appellants after the occurrence is situated in a street and the distance between the house was only 60 Karams (330 feet). The conduct of Liaqat Ali (P.W.8), who is `mamoonzad' (maternal cousin) of the deceased, is highly un-natural because had he been present at the spot he would have heard the report of fire shots. This witness did not bother to go to the spot to see as to what had happened over there rather he stated that he along with Bashir Ahmad (given up P.W.) went to Rawalpindi and they came back in the evening. He has not given any reason of his visit to Rawalpindi and simply stated that Bashir Ahmad (given up P.VV.) asked to accompany him as he was going for an urgent piece of work over there. However, during his cross-examination he stated that Bashir Ahmad (given up P.W.) did not inform him the purpose of his visit to Rawalpindi. He further stated that he did not disclose to police any purpose of his visit to Rawalpindi and the name of…
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