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Petitioner: IDREES RAZA VS Respondent: StateHonorable Justice Manzoor Ahmad MalikM.A. Zafar and Muhammad Shoaib Zafar
2013 Y L R 382
[Lahore]
Before Manzoor Ahmad Malik and Sardar Tariq Masood, JJ
IDREES RAZA and another---Appellants
Versus
The STATE---Respondent
Criminal Appeal No.1265 and Murder Reference No.639 of 2006, heard on 14th December, 2011.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 337-F(v)---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Question was, whether the evidence which had not been believed to the extent of four acquitted co-accused, who were also accused of firing at the deceased and the injured, could be believed to the extent of accused---Such evidence could only be believed if the same was corroborated by any other independent piece of evidence---No recovery of any weapon of offence had been effected from one accused on his pointation---Recovery of a rifle from the other accused was in pursuance of a joint disclosure of both the accused and the crime empties secured from the spot were not found by the Forensic Science Laboratory to have been fired from the said rifle---Admission of accused before Police that the said rifle was the weapon of offence, was not admissible in evidence being a confession before the Police---Accused in their statements recorded under S.342, Cr.P.C. had denied their role in the occurrence and mere suggestions to Investigating Officers, reply of which was based on their opinion, was also not admissible in evidence---No specific motive had been alleged against the accused---No proceedings under Ss.87 and 88, Cr.P.C. had been initiated against the accused to prove their alleged abscondence---No corroborative piece of evidence thus was available on record for maintaining the conviction of accused---Accused were acquitted in circumstances.
Iftikhar Hussain v. The State 2004 SCMR 1185; Muhammad Tashfeen and others v. The State and others 2006 SCMR 577; Zulfiqar Ahmad v. The State 2006 PCr.LJ 91; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Zaiaullah v. State 1993 SCMR 155; Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Shahid Raza and another v. The State 1992 SCMR 1647; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Ahmad Khan v. The State 1990 SCMR 803 and Akhtar Ali and others v. The State 2008 SCMR 6 ref.
(b) Criminal Trial---
----Appreciation of evidence---Whether a common set of ocular account can be used for recording acquittal and conviction of accused charged for the same offence---Principles.
Iftikhar Hussain and another v. State 2004 SCMR 1185; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Zaiaullah v. State 1993 SCMR 155; Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Shahid Raza and another v. The State 1992 SCMR 1647; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Ahmad Khan v. The State 1990 SCMR 803 and Akhtar Ali and others v. The State 2008 SCMR 6 ref.
(c) Criminal trial---
---Motive--- Connotation--- Motive is a double edged weapon that cuts both ways---On the one hand it can be a cause of commission of an offence and simul-taneously it can be a reason for false implication of the accused in a case.
M.A. Zafar and Muhammad Shoaib Zafar for Appellants.
Mian Muhammad Awais Mazhar, Deputy Prosecutor General for the State.
Ch. Farooq Haider for the Complainant.
Date of hearing: 14th December, 2011.
JUDGMENT
MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No.1265 of 2006 titled as "Idrees Raza and others v. The State" and Murder Reference No.639 of 2006 titled as "The State v. Idrees Raza and others" as both these matters have arisen out of the same case i.e. F.I.R. No.43 dated 5-3-2005 registered under sections 302, 324, 109, 148 and 149, P.P.C. at Station Saddar Lalamusa District Gujrat.
2. Idrees Raza and Shahid Anwar appellants filed Criminal Appeal No.1265 of 2006 against the judgment dated 23-8-2006 whereby, they were convicted by the learned Addl. Sessions Judge, Kharian District Gujrat under sections 302(b), 324 and 337-F(v), P.P.C. and sentenced them as under:--
"50. ...They both are convicted under section 302(b), P.P.C. and are sentenced to death as Tazir as they committed the offence in a callous and brutal manner and there is no mitigating circumstance for awarding lessor punishment. They shall be hanged by their neck till death. They shall pay compensation in the sum of Rs.100,000 each to the legal heirs of Khizer Hayat deceased under section 544-A, Cr.P.C. In case of failure to pay the compensation, they shall have to undergo six months' S.I. Both the above named accused inflicted injuries to Nazar Hussain and attempted to commit his murder. They are convicted under section 324, P.P.C. and are sentenced to 10 years' R.I. They shall also be liable to pay fine of Rs.10000 each. Both the above named accused inflicted injuries of fracture of his leg and they are convicted under section 337-F(v), P.P.C. and shall pay Daman to Nazar Hussain in the sum of Rs.20000 each. They are also sentenced with imprisonment for 3 years' R.I each. In case of failure to pay Daman aforementioned, they shall have to undergo S.I imprisonment for 3 months each."
However, the learned trial Court acquitted Muhammad Asghar, Noor Dad, Tahir alias Tariq, Nasar Rehman, Basharat Ali and Rashad Ali (since murdered before final arguments but even then the learned trial Court acquitted him) co-accused of the appellants while giving them the benefit of doubt. The learned trial Court has sent Murder Reference No.639 of 2006 for confirmation or otherwise of the sentence of death awarded to Idrees Raza and Shahid Anwar (convicts) as required under section 374 of Code of Criminal Procedure.
3. Brief facts, of the case are that on the complaint of Muhammad Inayat complainant (P.W.8), F.I.R. (Exh.PE) was registered at Police Station Saddar Lalamusa, District Gujrat wherein the complainant stated that he is cultivator and they are five brothers. About 3/4 months prior to the occurrence, Muhammad Asghar son of Tajay Khan caste Gujjar resident of Chak Sikandar etc., the opposite party made murderous assault on his brother Khizer Hayat in order to take revenge of Muhammad Ashraf and injured him. Khizer Hayat brother of the complainant got registered a case bearing F.I.R. No.279 of 2004 under section 324, P.P.C. Police Station Saddar Lalamusa against Muhammad Asghar etc. and Muhammad Asghar is in judicial lock-up District Jail, Gujrat. Today i.e. 5-3-2005, the complainant, Khizer Hayat, Zafar Iqbal his brothers and Adalat Khan son of Manay Khan caste Gujjar resident of Deh had gone to Kharian to attend the proceedings of said case whereas, Rashid, Basharat, Shahid, Nasar Iqbal, Idrees, Tahir alias Tariq caste Gujjar residents of Deh, their opposite party had also gone to Kharian to attend the proceedings of said case. Muhammad Asghar had also come from Gujrat Jail. After the proceedings, they all four persons boarded the wagon and alighted at Gunja Phatak and started walking in a street. Khizer Hayat, brother of the complainant was walking few paces ahead of the complainant. At about 3-00 p.m, when they reached near the house of Malik Mushtaq at the corner of the street, Rashid son of Behram Khan armed with .222 bore, Muhammad Basharat son of Allah Ditta armed with Kalashnikov, Shahid Mahmood son of Muhammad Anwar armed with Kalashnikov, Nasar Iqbal son of Bahadar Khan armed with Kalashnikov, Muhammad Idrees son of Jalal Khan armed with .222 bore, Tahir alias Tariq son of Hakim Ali armed with .222 bore caste Gujjar residents of Deh, who were already sitting there in prosecution of their common object, stood up and they all started firing with their respective weapons at Khizer Hayat brother of the complainant. The complainant, Zafar Iqbal (brother of the complainant) and Adalat Khan saved their lives after taking the shelter behind the wall. Meanwhile, Nazar Hussain son of Mian Muhammad caste tailor resident of Mohallah Ahmad Abad Lalamusa, a passerby, fell down after receiving injuries by the firing of the accused person. This occurrence was committed at the abetment of Muhammad Asghar son of Tajay Khan caste Gujjar resident of Deh who is confined in jail and Noor Dad son of Rajay Khan caste Gujjar resident of Deh.
The motive for the occurrence, as stated in the F.I.R., was that there is enmity between the complainant party and the accused persons of murders and attempt to commit murder and because of this, all the accused persons have committed the murder of Khizer Hayat, brother of the complainant.
4. Zulfiqar Verya Inspector/S.H.O., who appeared in the witness box as P.W.11 has stated that on 5-3-2005, Muhammad Inayat complainant appeared before him in police station and got recorded F.I.R. (Exh.PE) regarding the occurrence, which was read over to him who signed the same as token of its correctness. Thereafter, he proceeded to the place of occurrence, prepared injury statement (Exh.PJ) regarding Nazar Hussain injured and sent him to RHC Lalamusa through Anar Khan S.-I. for his medico-legal examination. He also prepared injury statement (Exh.PK) of deceased, inquest report (Exh.PL), application for postmortem examination (Exh.PM) and sent the dead body of Khizer Hayat to Civil Hospital, Kharian for postmortem examination under the escort of Muhammad Yousaf 51/C (P.W.10). He then inspected the place of occurrence and secured the blood-stained earth, made the same into sealed parcel and took it into possession vide recovery memo Exh-PF. He also secured twelve empties of .222 bore rifle (P-2/1-12), made the same into sealed parcel and took it into possession vide recovery memo. Exh-PG. He prepared rough site plan (Exh-PN) of the place of occurrence. After the medico-legal examination of Nazar Hussain injured, Anar Khan S.-I. handed over to him his medico-legal report (Exh-PA). After the postmortem examination of Khizer Hayat, Muhammad Yousaf 51/C (P.W.10), handed over to him the last worn clothes of deceased which he took into possession vide recovery memo Exh.PH. On 8-3-2005, he took Akhtar Naqash draftsman to the place of occurrence who took rough notes on his instructions and as pointed out by the eye-witnesses who on 9-3-2005 handed over to him scaled site plans (Exh.PC and Exh.PC/1). On 18-3-2005, he recorded the statement of Nazar Hussain injured. On 1-4-2005, he moved an application (Exh-PQ) to the learned Illaqa Magistrate to obtain permission to join Muhammad Asghar accused, who was confined in jail, in this case. On 5-4-2005, he interrogated Muhammad Asghar accused and arrested him in this case. On 8-4-2005, he arrested Noor Dad, Idrees Raza, Shahid Anwar, Tahir alias Tariq, Nasar Rehman and Basharat Ali accused. On 10-4-2005, during investigation, he found Muhammad Asghar accused involved in this case and sent him to judicial lock-up. On 22-4-2005, Idrees Raza accused, after disclosure, got recovered .222 bore rifle (P-1) from his residential house, which he took into possession vide recovery memo Exh.PD. On 23-4-2005, he sent the accused persons to judicial lock up whereas, Rashid accused could not be arrested. He prepared incomplete challan and submitted the same in the court.
5. Muhammad Sharif S.-I. appeared in witness box as CW-1 and stated that on 3-7-2005, he arrested Rashid Ali accused in this case who produced before him photocopy of application regarding his attendance at the place of his posting at Rawalpindi. On 4-7-2005, he went to Rawalpindi. He obtained Rapt Roznamcha regarding the attendance of Rashid accused from Moharrer which he took into posses-sion vide recovery memo Exh.CW.1/A. He also verified the application regarding attendance of Rashid Ali accused at the place of his posting. On 9-7-2005, he came to the conclusion that Rashid Ali accused was innocent in this case. On 11-7-2005, he sent Rashid Ali accused to judicial lock-up. After that he sent up the challan in the court after placing the name of accused in Column No.2.
6. The appellants along with their co-accused (since acquitted) were summoned by the learned Addl. Sessions Judge, Kharian to face the trial. Copies of the documents, as required under section 265-C, Code of Criminal Procedure, were provided to them and formal charge was framed against them on 13-10-2005 to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as eleven witnesses whereas, Muhammad Sharif S.-I. and Mushtaq Ahmad DSP appeared before the learned trial Court as CW-1 and CW-2 respectively. Dr Naeem Akhtar (P.W.1) medically examined Nazar Hussain injured whereas, Dr Navid Iqbal (P.W.2) conducted the postmortem examination on the dead body of Khizer Hayat deceased. Muhammad Inayat complainant (P.W.8) and Zafar Iqbal (P.W.9) furnished the ocular account of the occurrence. Sabir Hussain (P.W.7) is witness of abetment and recovery of .222 bore rifle (P-1) at the instance of Idrees Raza appellant. Zulfiqar Verya Inspector/S.H.O. (P.W.11) and Muhammad Sharif S.-I. (CW-1) described the different steps taken during the investigation whereas, the remaining witnesses are formal in nature. Thereafter, the learned Deputy District Attorney, vide his statement dated 14-7-2006, tendered in evidence certified copy of judgment dated 14-10-2003 passed by learned Addl. Sessions Judge, Kharian in case titled as "State v. Khizer Hayat, Atif Raza and others" and attested copy of F.I.R. No.279 of 2004 of the Police Station Saddar Lalamusa Exh.PS and Exh.PR respectively (under objection). He also tendered in evidence report of Chemical Examiner (Exh.PT), report of Serologist (Exh-PU) and that of Forensic Science Laboratory (Exh.PV). Learned Deputy District Attorney closed the prosecution case vide his statement dated 18-7-2006. After that, on 20-7-2006, the statements of the appellants were recorded under section 342, Code of Criminal Procedure. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Idrees Raza appellant replied as under:--
"I am innocent. I have been falsely implicated in this case alongwith my other family members. Previously one Ashraf brother of Asghar accused was murdered in that case. The sons of complainant Muhammad Inayat were arrayed as accused persons during the investigation. We were P.Ws against the sons of complainant in that case. Due to this reason complainant particularly nourished grudge against us. We have nothing to do with the murder of Khizer Hayat in fact complainant party belongs to desperate criminal clan having enmities in different villages with different groups in the territorial jurisdiction of Police Station Dinga, Sadar Lalamusa, City Lalamusa and Pahrianwala. They remained involved in different cases, arranging from custody of illicit arms, dacoities, attempts to murders, free fights arising out of Dogs fights. Khizer Hayat deceased was involved in double murder of Malik and Said Begum and injuring Bashir Bibi, Raj Bibi and Inayat Bibi vide F.I.R. No.76 of Police Station Dinga Exh.D-2; for containing illicit arms vide F.I.R. No.182 of 2002 Police Station Dinga Exh.D-3; for encountering with police as the police raided at the Dera of Khizer Hayat for the arrest of proclaimed offenders vide F.I.R. No.181 of 2002 Police Station Dinga Exh.D.4. 7 M.M rifle was recovered from accused Khizer Hayat and a case F.I.R. No.12 of 1988 Exh.D.5 was registered at Police Station Dinga. Case F.I.R. No.315 of 2000 Police Station Sadar Lalamusa Ex.D.6 was registered against Khizer Hayat for harbouring proclaimed offenders. Illicit arms were recovered from deceased Khizer Hayat and F.I.R. No.485 of 2002 Exh.D.7 was registered against him. The complainant party was involved in case F.I.R. No.246 of 2001 Police Station Dinga for the murder of one Khursheed R/O Sandhanwala Exh.D.8. Complainant party was involved in double murder of Anwar and Liaqat Ali R/O Sandhanwala vide F.I.R. No.183 of 2001 Police Station Dinga Exh.D-9. Complainant party was also involved in case F.I.R. No.90 of 1985 Police Station Dinga for an altercation arising out of Dogs fighting which is Exh.D.10. Complainant party was also involved in case F.I.R. No.336 Police Station Dinga in the murder of Amanat R/O Dhakranwali Exh.D-11. Complainant party was also involved in case F.I.R. No.276 of 2000 registered at Police Station City Lalamusa Exh.D.12. Son of complainant namely Atif was involved in a Dacoity case vide F.I.R. No.225 of 2001 Police Station Sadar Lalamusa Exh.D-13. Again Atif son of complainant was involved in case F.I.R. No.135 of 2006 under section 392, P.P.C. Police Station City Lalamusa Exh.D-14. Complainant party was also involved in case F.I.R. No.194 of 1994 Police Station Dinga Exh.D-15. All these exhibits spell volumes about the character and enmities of complainant party and their nephews in different villages. Deceased was done to death by his unknown enemies. (All the aforementioned documents produced by the accused are exhibited under objection). I was not present at the place of occurrence at the time of occurrence. I have been falsely involved in this case. Complainant being inimical to us has managed to concoct a false story just due to grudge mentioned in earlier para."
To the same question, Shahid Anwar appellant opted the reply made by Idrees Raza appellant. The appellants neither opted to appear as their own witnesses, in disproof of the allegations levelled against them, as provided under section 340(2), Code of Criminal Procedure nor produced any evidence in their defence.
7. The learned trial Court after the conclusion of the trial convicted the appellants as stated above.
8. Learned counsel for the appellants, in support of this appeal, contends that the matter was reported to the police after due deliberation and consultation because as per complainant, the occurrence allegedly took place at 3-00 p.m. whereas, the F.I.R. (Exh-PE) was recorded at 3-30 p.m. and the injured was brought in the hospital at 2.35 pm which is clear from the statement of Dr Naeem Akhtar (P.W.1) and moreover the injured was taken to the hospital by the police; that both the eye-witnesses namely, Muhammad Inayat complainant (P.W.8) and Zafar Iqbal (P.W.9) are not only inimical towards the appellants but they are also chance witnesses as they are not the residents of the area where this occurrence took place; that they were not the complainant or witness in the case in which Khizer Hayat deceased appeared on the day of occurrence; that the star witness of the prosecution namely, Nazar Hussain injured did not appear before the learned trial Court to support the prosecution story.
9. As far as recovery of .222 bore rifle (P-1) taken into possession at the pointation of Idrees Raza appellant is concerned, learned counsel for the appellants contends that the same is of no consequence as the empties (P-2/1-12) recovered from the spot did not match with rifle (P-1) and the report of the Forensic Science Laboratory (Exh.PV) is not positive; that this was the case of the prosecution in the F.I.R. as well as before the learned trial Court that Idrees Raza appellant was armed with .222 bore, Shahid Anwar appellant was armed with Kalashnikov, Tahir alias Tariq was armed with .222 bore, Rashid (since murdered before final arguments before the learned trial Court) armed with .222 bore, Muhammad Basharat armed with Kalashnikov and Nasar Iqbal armed with Kalashnikov fired at the deceased Khizer Hayat but no specific injury was attributed to any of these persons and a general allegation of firing was levelled against all the accused persons; that Tahir alias Tariq, Nasar Iqbal and Basharat accused have been acquitted by the learned trial Court whereas, Rashid Ali accused though died before the final arguments but even then he was acquitted by the learned trial Court; that Asghar and Noor Dad who were accused of abetment have also been acquitted by the learned trial Court and the appeal (Criminal Appeal No.1306 of 2006) filed against their acquittal has already been dismissed by this Court vide order dated 21-5-2007 and the said order was not assailed further before the Hon'ble Supreme Court of Pakistan, therefore, the evidence which has been disbelieved qua the co-accused of the appellants especially those who were accused of firing at the deceased and injured cannot be believed to the extent of the appellants unless and until it is corroborated by any other independent piece of evidence which corroboration, as per learned counsel, is very much lacking in this case as no recovery was effected from Shahid Anwar appellant and the rifle (P-1) allegedly recovered from Idrees Raza appellant cannot be considered as corroborative piece of evidence for the reason that as per recovery memo it was a joint recovery. Moreover, the empties (P-2/1-12) allegedly recovered from the spot did not match with the rifle (P-1) and the report of the Forensic Science Laboratory (Exh.PV) is not positive. Learned counsel further contends that the motive cannot be considered a corroborative piece of evidence and even otherwise, this motive, as per F.I.R. and statements of witnesses, was specifically against Asghar etc. and Asghar accused has been acquitted by the learned trial Court and the said acquittal has been maintained by this Court. In support of his contentions, learned counsel for the appellants places reliance on "Iftikhar Hussain v. The State" (2004 SCMR 1185).
10. On the other hand, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant vehemently opposes this appeal on the grounds that there was no delay in reporting the matter to the police as the occurrence took place at 3-00 p.m. and the matter was reported to the police at 3-30 p.m.; that all necessary details of the incident including the names of the appellants, their roles, names of the witnesses and name of the injured were mentioned in the F.I.R.; that some discrepancies in the time of arrival of the injured in the hospital is of no consequence. So far as the argument of learned counsel for the appellants that the evidence of the prosecution has been disbelieved to the extent of Rashid Ali (though murdered before the final arguments but acquitted by the learned trial Court), Basharat, Nasar Iqbal and Tahir alias Tariq, therefore, the same cannot be believed qua the appellants, the learned counsel for the complainant contends that from the trend of the cross-examination on the prosecution witnesses i.e. Zulfiqar Verya Inspector (P.W.11), Muhammad Sharif S.-I. (CW-1) and Mushtaq Ahmad DSP (CW-2), it can safely be inferred that the appellants admitted their presence at the spot; that finally the prosecution challaned the appellants whereas, the names of other accused persons (who have been acquitted) were placed in Column No.2 of the challan and they were not arrayed as accused, therefore, their acquittal is not helpful for the appellants; that the co-accused of the appellants namely, Rashid (since murdered), Muhammad Basharat, Nasar Iqbal and Tahir alias Tariq were acquitted mainly because of the reasons that they were found innocent by the police during the course of investigation; that the injured of this case namely, Nazar Hussain stated before the doctor Naeem Akhtar (P.W.1) that two persons resorted to firing and it was the reason which weighed with this Court while dismissing the appeal filed by the complainant against acquittal. As far as recovery of .222 bore rifle, at the instance of appellants is concerned, learned counsel for the complainant contends that this recovery was effected at the instance of Idrees Raza appellant, therefore, it is a corroborative circumstance notwithstanding the fact that the report of the Forensic Science Laboratory (Exh.PV) regarding this rifle (P-1) and the empties (P-2/1-12) is negative because Idrees Raza appellant disclosed before the police that it was weapon of offence; that the F.I.R. was lodged by real brother of Khizer Hayat deceased, therefore, no question of substitution arises; that there was no question of misidentification because the parties were known to each other. As far as motive is concerned, learned counsel for the complainant contends that in the F.I.R. (Exh.PE) and in his statement before the learned trial Court, it was stated by the complainant that the motive was that about 3/4 months ago, Khizer Hayat brother of the complainant was injured by Asghar etc.; that it is clear from Exh.PS that Idrees Raza appellant was also involved in the list of accused in said case, therefore, it is another…
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