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Petitioner: MAHMOOD HUSSAIN and anothers VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): M. A. Shahid Siddiqui, Mian Muhammad Najum-uz-Zaman Title: MAHMOOD HUSSAIN and anothers vs THE STATE Case No.:Criminal Appeals Nos.339, '1419 and Criminal Revision No,315 and Murder
JUDGMENT
Reported As: 2002 YLR 2130 Result: Appeals accepted Judgment JUDGMENT ' M. A. SHAHID SIDDIQUI, J.---This judgment is intended to dispose of Murder Reference No,6-T of 2001, Criminal Appeals Nos.339 of 2001, 1419 of 2001 and Criminal Revision No,315 of 2001. Mehmood Hussain, Babar Rashid and Muhammad Nadeem appellants were tried along with Muhammad Imran and Wajid Ali alias Bhola (since acquitted) accused by the learned Judge, Anti-Terrorism Court, Faisalabad in case F.I.R. No, 17 dated 18-1-2000, under sections 302, 396, 365-A, 120-B, 148, 149 and 412, P.P.C., and section 7 of the Anti Terrorism Act, 1997. They have been convicted by the learned Special Judge, Anti-Terrorism Court No,III, Lahore, under section 302(b) read with section, 34, P.P.C. They have been awarded the following sentences:- (1) Under section 302(b), P.P.C.: Mehmood Hussain has been sentenced to death, while Babar Rashid and Muhammad Nadeem has been sentenced to imprisonment for life. All the three appellants have also been burdened with a fine of Rs, 2,00,000 each and in default thereof, they have to undergo further simple imprisonment for six months. (2) Under section 392/34, P.P.C.: Sentenced to 14 years' R.I. With a fine of Rs,1>p0,000 each. In default of payment thereof, they have to undergo six months simple imprisonment, each. (3) Under section 365/34, P.P.C.: Sentenced to R.I. For 7 years' and a fine of Rs,50,000 each. 2. The prosecution case, in brief, is that on 17-1-2000, Dr. Shamsul Haq (deceased) was abducted by the accused from Sahil Hospital, Faisalabad, on some pretext and was being taken in his own car bearing Registration No,8825/FDT, when it collided with a truck bearing Registration No,MR/2460, which was parked on the road without lights near . Grid Station Khurrianwala. The car after colliding with the truck skidded into the (Khatans) big ditches on the right side of the road.
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Tariq Javed complainant (P.W.11) brother of the wife of Dr. Shamsul Haq, who was also heading towards Lahore in his car alongwith Naeem Khalid (given up P.W.) and Muhammad Asghar Sultan (D.W.12) immediately stopped his car reached the place of occurrence. They saw, in the headlights of their car, three unidentified persons, who were carrying firearms with them running out of the car. According to the F.I.R. One of those persons was of medium height, the other one appeared to be thin and active and third one was tall. All were young. They found Dr. Shamsul Haq Tayyab lying injured on the back seat with his hands and legs tied with a cord. A fire-arm injury was found on the right and left side of his head. He was removed to Allied Hospital, Faisalabad, but he died on the way. Tariq Javed after leaving the dead body at Allied Hospital, Faisalabad, rushed to inform the police. He met Jahangir Khan, S.I., near the Bye-pass of Khurrianwala, at 1-45 a.m., who recorded his statement (Exh.P.E.). Tariq Javed further disclosed that a motorcycle bearing Registration No,3346/FDN with two riders on it had also struck with the said car. He further stated that the wrist watch bearing the name of Dr. Shamsul Haq Tayyab, a golden ring and a mobile telephone were found missing. He suspected that Dr. Shamsul Haq Tayyab, who was an active member of Jamaat- e-Ahmadia had been murdered by some religious organization or fanatics. 3. Jahangir Khan (P.W.13) after recording the statement of Tariq Javed send the same to the police station for formal registration of case. He then rushed to the spot. Leaving two Constables at the spot, he went to the Allied Hospital and prepared injury statement and inquest report. He contacted the medical officer of Khurrianwala Hospital and arranged post-mortem examination and carried out usual investigations. At his instance, Umar Hayat, Patwari, (P.W.2) prepared side plan (Exh . P. D ) on 21-1-2000. 4. Asad-ur-Rehman, Inspector/S.H.O., Police Station Sargodha Road, Faisalabad, (P.W.14) took up the investigation of the case on 15-5-2000, under the orders of the Senior Superintendent of Police, Faisalabad. On the same day, he apprehended all the five accused from the graveyard of Mohallah Nighabanpura and recovered the watch of Dr. Shamsul Haq (P.12) from the pocket of Mehmood Hussain and took the same into possession vide recovery memo. (Exh. P.K). He also recovered golden ring (P.13), from the possession of Babar Rashid accused vide recovery memo. (Exh. P.L) and got arranged identification parade on 23-5-2000. On the completion of the investigation, he submitted the challan. 5. On the commencement of the trial, the accused pleaded not guilty to the charge framed against them on 15-9-2000 and claimed trial. The prosecution examined as many as 16 witnesses besides tendering in evidence the reports of Chemical Examiner (Exh. P.X) and (Exh. P.Y), reports of Serologist (Exh. P.Z) and (Exh. P.AA) and the report of Forensic Science Laboratory (Exh. P.BB) in order to substantiate the charges. 6. Tariq Javed (P.W.11) and Muhammad Asghar (P.W.12) gave the ocular account of the occurrence, whereas Muhammad Shakeel, Magistrate 1st Class, (P.W.8) proved his report (Exh. P.H), which pertains to the proceedings of identification parade. Malik Mubashar Ahmad (P.W.9) deposed about the extra-judicial confession made by Mehmood Hussain accused before him on 12-5-2000. Arshad Iqbal (P.W.10) deposed about the arrest of the accused and recovery or wrist watch and golden ring. Dr. Khalid Mahmood Fakhar (P.W.1) proved the post-mortem report, while Umar Hayat, Patwari, (P.W.2) deposed about the site plan (Exh. P.D.), prepared by him after the inspection of the spot. The statements of the remaining witnesses are of formal nature. 7. Before we proceed further, we would like to deal with the medical evidence which has been furnished by Dr. Khalid Mehmood Fakhar, S.M .0. , T . H. Q. , Khurrianwala (P.W.1). He conducted the post-mortem examination of the dead body of Dr. Shamsul Haq on 18-1-2000 at 1-45 p.m., while he was posted at Rural Health Center, Khurrianwala. He found the following injuries on his person:-- 1. A fire-arm wound of entry 8 c.m. x 6 c.m. H-shaped on right temporal area, 3 c.m. Above from right ear, 2 c.m. From right eyebrow. Burning was present all around the wound with fire-arm
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wound of exit, 3.5 c.m. x 3 c.m. Left side of the head six c.m. Above from left ear, 9 c.m. From midline. 2. A contused swelling .8 c.m. x 6 c.m. Back of right hand and with contusion mark 1 c.m. x 1 c.m. Around the right wrist. 3. A contusion mark 1 c.m. x 1 c.m. Around the left wrist. 4 A contusion mark 1 c.m. x 1 c.m.Around the left ankle and lower leg. 5. A contusion mark 1 c.m. x 1 c.m.Around the right ankle and lower leg. ' The skull was found converted into multiple pieces shown in the diagram. Haematoma was present under scalp and brain matter and membranes were congested and brain matter was coming out from the exit wound. ' The bullet entered from right temporal bone into right temporal lobe and left temporal lobe and exited from left side of parietal bone. ' All other organs were found healthy and normal. ' He opined that the cause of death in this case was haemorrhage and shock due to the injury No,1 caused by fire-arm weapon and was ante-mortem in nature, which was sufficient to cause death in the ordinary course of nature. The probable time between injury and death was immediate and between death and post-mortem was about 12 hours. He testified that Exh. P.A. Was correct carbon copy of postmortem report. 8. The statement of Tariq Javed (P.W.11) and Muhammad Asghar Sultan (P.W.12) are to the effect that on the night between 17/18-1-2000, they were on their way from Faisalabad to Lahore accompanied by Naeem Khalid (given up P.W.) in a car bearing Registration No,BRD/33333. They were at some distance from Gatt Wala Bridge, when they saw the car of Dr. Shamsul Haq Tayyab (deceased) proceeding ahead when all of a sudden at about 12-15 a.m., .The car of Dr. Shamsul Haq struck with a truck, which was parked without lights on the road. After striking with the truck it slided towards right side and went into the 'Khatans'. They immediately reached near the car of Dr.Shamsul Haq'and saw in the headlights of their car three persons coming out of the car of Dr. Shamsul Haq. Tariq Javed stated that he observed the features of those three persons very promptly, while Muhammad Asghar Sultan (P. W.12) stated that he fully saw and identified the culprits. While giving description of the features both stated that one of them was of medium height and other one was thin and smart while the third one was a bit tall. They also identified the accused in Court, when asked by. The Court. After the decampment of the accused, they found Dr. Shamsul Haq Tayyab lying on the rear seat of the car in an injured condition with his hands and feat tied with a string. He was 'alive at that time, therefore, they put him in their own car and rushed towards Allied Hospital, Faisalabad. They noticed that the wrist watch, the golden ring and the mobile telephone set of the deceased were missing. According to him, Dr. Shamsul Haq Tayyab had died before they reached Allied Hospital. Tariq Javed left Allied Hospital for Police Station Khurrianwala and made statement Exh. P.E. Both these witnesses have been subjected to lengthy cross-examinations. Tariq Javed explained that on 17-1-2000 at about 5-30 p.m., they had come to Faisalabad from Lahore to attend the ceremony of 'Aamin' of the son of Dr. Shamsul Haq (deceased), which started at about 6-00 p.m., and continued for 3/4 hour's and the deceased had also attended the ceremony. They left the house of the deceased at 11-30 p.m. For Lahore. According to Tariq Javed the car of the deceased when they first saw it was at a distance of 100 meters ahead, which was going at a very high speed, therefore, they could not cross the car. After the accident, he turned his car towards the car of the deceased and stopped at a distance of about eight feet from the car of the deceased and saw the accused coming out of the car from a distance of about eight feet. He firmly stated that the accused did not come towards them and that they ran towards the Southern side. He further stated that the faces of the accused were clearly visible and they were carrying some weapons in their hands, whith he could not clearly distinguish. He also stated to have witnessed the striking of motorcycle with the truck.
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9. Tariq Javed admitted that Muhammad Asghar Sultan (P. W.12) is the husband of her sister and Shabbir Ahmad (P.W.6) is related to Dr. Shamsul Haq (deceased), whereas Arshad Iqbal (P. W.10), Malik Mubashar Ahmad (P.W.9) and that the witnesses, who have been given up by the prosecution, namely Naeem Muhammad Ahmad and Sheikh Muhammad Naeem are not related, to him. However, they belong to Jamaat-e-Ahmadia. 10. Malik Mubashar Ahmad (P.W.9) stated about the extra-judicial confession made before him by Mahmood Hussain accused alone. According to him, Mahmood Hussain accused, who was known to him for the last 5/7 years, came to him on 12-5-2000 in the evening in a perplexed conditions and asked him for obtaining pardon. The accused disclosed that he used to go to the house of Dr. Shamsul Haq (deceased) to repair Dish Antenna and other electric-goods. He thought that ,Dr. Shamsul Haq was a rich man. He also wanted to become rich and in order to achieve this object, he associated two relations of his Mohallah and two other persons namely Imran and Nadeem from Sheikhupura. Mahmood Hussain accused further told that he had sent two of his companions to Sheikhupura to wait for them and he himself armed with a pistol accompanied by Babar and Nadeem, who were carrying 'Churries and a string went to Sahal Hospital and told Dr. Shamsul Haq that the mother of Babar accused was seriously ill and that they wanted him (Dr. Shamsul Haq) to accompany them. Dr. Shamsul Haq accompanied by the accused left his hospital and drove his car towards the Motorway. When they reached near the Boys Hostel at Sargodha Road, Babar Rasheed accused put his pistol on the temple of Dr. Shamsul Haq, who was then made to sit on the rear seat in the middle alongwith Babar and Nadeem accused. His hand and feet were tied. Babar Rasheed and Nadeem accused asked Dr. Shamsul Haq about his wealth. When they reached near the Grid Station Khurrianwala, the car struck with a truck, which was wrongly parked with no parking lights. The car sided towards the wrong side and fell into the Khatanz'. The other accused came out of the car. Babar Rasheed accused feeling that they may be identified, fired at Dr. Shamsul Haq hitting on his right temple and then they ran away towards Nishat Abad. Malik Mubashar Ahmad stated that he promised with the accused that he would try for a compromise and asked Mahmood Hussain to leave. In cross-examination, he stated that on the following day, he went to Lahore and on 16-5-2000 at 6-00 p.m., he went to the police station after reading the news of the arrest of Mahmood Hussain accused. He first identified the accused in Police lock-up and then met Rana Asad-urRehman, S.H.O., who recorded his statement. '11. The prosecution has also relied upon the evidence of recovery of wrist watch (P.12) recovered from the pocket of Mahmood Hussain accused and the golden ring (P.13) from the possession of Babar Rasheed accused at the time of their arrest on 15-5-2002 from the graveyard of Mohallah Nighabanpura. Asad-ur-Rehman (P.W.14) and Arshad Iqbal (P.W.10) have deposed about it. The occurrence took place within the area of Police Station Khurrianwala, but on 15-5-2000, Asad-ur- Rehman, Inspector/ S.H.O., Police Station Sargodha Road, Faisalabad, took up the investigation of the case, which as per his own statement, was entrusted to him by the S.S.P., Faisalabad, on the same day. Asad-ur-Rehman was on patrol duty at Akbar Chowk, Gulistan Colony, Faisalabad, when he met Arshad Iqbal and his son Muhammad Ahniad at about 3-00 p.m. While on patrol duty, he reached the graveyard of Mohallah Nighabanpura. He made his entry through the broken eastern wall of the graveyard alongwith Arshad Iqbal. And Muhammad Ahmad (P.Ws.) besides his subordinates. He found five boys sitting under the shade ' of Peeple tree. When 'questioned by Asad-ur-Rehman, Inspector, all the five became perplexed and could not give satisfactory answers and on search, a wrist watch was recovered from the pocket of Mahmood Hussain accused on which the name of Dr. Shamsul Haq was engraved and a golden ring on the top of which the words "S.H" were written was recovered from the right side pocket of Babar Rasheed. Both these articles were taken into possession vide recovery memo. (Exh. P.K) and (Exh. PL) attested by Arshad Iqbal
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(P.W.10) and his son Muhammad Ahmad (given up P.W.). Arshad Iqbal (P.W.10) also deposed that on 15-5-2000, he joined the investigation of this case, alongwith his son Muhammad Ahmad and went to graveyard of Mohallah Nighabanpura alongwith the police party, where all the five accused were found sitting along the eastern wall of the graveyard. On personal search of the accused, a wrist watch was recovered from the possession of Mahmood Hussain, while golden ring was recovered from the possession of Babar Rasheed. Both these articles were taken into possession vide recovery memos. (Exh. P.K and Exh.P.L). This witness is a property-dealer and resides at Chak No,120 (Bawa Chak), where he has made his office as property dealer near the school at Adda Bawa Chak, which is at a distance of 9 Kilometers from city Faisalabad. During cross-examination, it transpired that he also belongs to Jamaat-e-Ahmadia and on that day he had gone to meet his partner Muhammad Akbar. He could not tell the number of his bungalow. So, he came to Faisalabad by chance and met Asad-ur-Rehman, Inspector, at Akbar Chowk, from where he in the company of the police party went straight to the graveyard. 12. Lastly, the prosecution has relied upon the report (Exh. P.H) relating to the proceedings of the identification test supervised - by Muhammad Shakeel, Magistrate 1st Class, Faisalabad, (P.W.8). Asad-ur-Rehman, Inspector, (P.W.14) stated that he submitted an application dated 17-5-2000 (Exh. P.G.) in order to obtain permission for holding identification parade, which was accepted vide an order dated 20-5-2000. Muhammad Shakeel, Magistrate 1st Class, (P.W.8) deposed that he reached District Jail, Faisalabad, at 12-50 p.m. On 23-5-2000 for holding identification parade in the instant case. He directed the Assistant Superintendent Jail, Faisalabad, that 16/17 under trials of the same similarity and complexion of the accused be arranged and produced at the venue. The present accused were mixed up with Muhammad Nadeem, Babar Rasheed and Mahmood Hussain, accused, and made to sit down in a semi-circle. Naeem Khalid, Muhammad Asghar Sultan and Tariq Javed (P.Ws.) were called one after the other to identify the accused. All the three accused were correctly identified by the witnesses. He affirmed that he had signed every page of the report (Exh. P.H) and given certificate (Exh.P.H/1). He denied the suggestion that before holding identification parade, accused raised their objections as to the fact that they were confined at the police station and the police had shown them to the witnesses and they were also produced by the police in different Courts and in that duration their photographs were taken for showing them to the P.Ws. He admitted that identification parade was held jointly and that it was his first experience of conducting the identification parade. He also admitted that the ratio of the participants was not one to ten and that he had not asked the witnesses about the role of each accused at the time of occurrence. 13. The learned trial Court relying upon the prosecution evidence brought on the record came to the conclusion that the prosecution had established its case against Mahmood Hussain, Babar Rasheed and Muhammad Nadeem accused beyond any reasonable doubt under sections 302(b)/34, 392/34, 365/34, P.P.C. And they were accordingly convicted and awarded the aforesaid sentences. 14. Learned counsel for the appellants while assailing the conviction, inter alia, argued:- ' That the presence of the P.Ws. At the time when the car of Dr. Shamsul Haq (deceased) collided with a truck within the area of Police Station Khurrianwala is not established; ' That it was a dark and foggy night in the mid-January. The visibility was so poor that not only the car of the deceased struck with the said truck but also a motorcycle on the same night with two persons on it and it was not possible for the P.Ws., who had just a glimpse of the accused from a distance of about 28 Karams to see the perpetrators in the headlights of a car and keep 'their features in memory and identify them after about four months of the alleged occurrence; ' That the features of the accused given by the P.Ws. Are of general nature and that they were merely picked up by the P.Ws. During the identification parade, which was otherwise not held
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strictly in accordance with the law and the guidelines laid down by the Superior Courts; ' That the evidence of extra-judicial confession has been fabricated after the arrest of the accused as there was no reason for Mahmood Hussain accused to approach Malik Mubashar Ahmad (P.W.9) to seek pardon just three days prior to his arrest from the legal heirs of the deceased, who had absolutely no concern with the P.W . ' That the proceedings showing recovery of wrist watch (P.12) and golden ring (P.12) are fake. 15. The learned counsel for the complainant while supporting the judgment and praying for the dismissal of the appeals contended that the P.Ws. Have absolutely no motive to falsely implicate the accused and the recovery of 'wrist watch and golden ring of the deceased from the possession of the accused strongly corroborates the prosecution case. 16. We have considered the arguments put forth by the learned counsel for the parties with utmost care and caution being conscious of the fact that a person belongin to a very noble profession has been brutally murdered out of sheer greed and passion for money but at- the same time, we are also conscious of the onerous duty to ensure that innocent people are not punished on mere conjectures and surmises. The consequences of error in conviction are more harmful to the society than the consequences of error in acquittal. The circumstances under which Dr. Shamsul Haq (deceased) was abducted were and are still a mystery because we feel reltictant to place implicit reliance upon the testimony of Mubashar Ahmad (P.W.9), who tried to show his least concern with the deceased, although, he admittedly belongs to Jamaat-e-Ahmadia of which the deceased was an active member. According to him, Mahmood Hussain accused came to his house on 12-5-2002 and narrated the entire story, confessed his guilt and sought pardon. It is Strange that he remained in active and silent till the arrest of the accused. For him, Dr. Shamsul Haq Tayyab was not an ordinary nian. The moment Mahmood Hussain accused made confession before him, he (P.W.9) should have apprehended him or at least he should have informed the family of the deceased or the police. In cross-examination, he stated that he was not familiar with the complainant party and that he came to know about them in the Court premises. If he had no concern with the complainant party, then what nor did he go to the police station on 16-5-2000, joined the investigation, identified A Mahmood Hussain accused and opted to become a witness by getting his statement recorded under section 161, Cr.P.C. His statement and conduct both do not inspire confidence. Therefore, his testimony cannot he safely relied upon. 17. The presence of Tariq Javed (P.W.11) and Muhammad Asghar Sultan (P.W.12) has also been seriously challenged on behalf of the accused. Both these witnesses, in fact, belong to Bahawalnagar and at the relevant time, they were posted at Lahore. Both these witnesses in their statement before the police had not specified the purpose of their visit to Faisalabad on 17-1-2000. Both are educated, therefore, they Must have realized that they would be required to explain their presence at the relevant time. Therefore, at the trial, they must have come prepared. Both during cross-examination unanimously stated that they had come to Faisalabad to attend the 'Aamin' ceremony of the son of Dr. Shamsul Haq Tayyab (deceased). According to Tariq Javed, the ceremony started at about 6-00 p.m. And continued for 3/4 hours, which the deceased also attended and they remained at the house of the deceased and started at 11-30 p.m. For Lahore. Both these witnesses claim to have removed Dr. Shamsul Haq (deceased) in an injured condition from the place of occurrence to Allied Hospital. Tariq Javed, in his cross-examination, stated that after making his statement before the police, he accompanied by the Sub-Inspector after 1-50 a.m. Reached the spot, where he found a motorcycle lying near the truck. Muhammad Asghar Sultan (P.W.12) also deposed that one motorcycle was also present there at that time, but he did not note at what time the motorcycle struck with the truck as they were busy in handling the case of deceased doctor. In this regard, Jahangir Khan, S.I. (P.W.13) admitted in his cross-examination that he joined one Muhammad Ameer son of Nazar Muhammad, who was the Cleaner of the aforesaid
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truck, who stated before him that at the time of accident, he was sleeping in his truck and on the alarm of the accident, he woke up and saw the said car at a distance of 20/22 Karams lying in the 'Khatans'. After hearing alarm of the accident, he saw two persons coming out the said car and running away from that place and he did not hear any report of fire-arm shot and due to fear he ran towards Western away from the truck. He further admitted that Muhammad Aslam son of Peer Muhammad, Caste Rajpute, resident of, Katchi Abadi, Jaranwala, driver of Ambulance also joined the investigation of this case and stated that he was driver of Ambulance aid on 17-1-2000, he alongwith one Fateh Khan was going in the said Ambulance towards Arzoo Mills, Faisalabad, and that at about 12-20 a.m., when they reached near the Grid Station Khurrianwala, some persons from public and police officials were present there and that they all stopped Ambulance and told him that an accident had taken place and one person was seriously injured was to be taken to the Hospital and that he agreed and that the police officials and other persons…
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