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Petitioner: MUHAMMAD RAFIQUE and others VS Respondent: THE STATE and others
Court Name: Supreme Court of Pakistan Judge(s): Rehmat Hussain Jaffery, M. A. Shahid Siddiqui, Tasaddaq Hussain Jillani Title: MUHAMMAD RAFIQUE and others vs THE STATE and others Case No.:Criminal Appeals Nos.354 to 356 of 2002 and Criminal Petition No,623-L of
JUDGMENT
Reported As: 2010 SCMR 385 Result: Appeals accepted Judgment JUDGMENT ' RAHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Criminal Appeal No,354 of 2002 (filed by the appellants Muhammad Rafique, Saeed Ahmed Chheena and Naseer Ahmad Chheena), Criminal Appeal No,355 of 2002 (filed by the appellant Aziz Khan), Criminal Appeal No,356 of 2002 (filed by the appellant Iftikhar Ahmad Khan) to challenge their convictions and sentences and Criminal Petition No,623-L of 2002 (filed by Mst. Khurshid Begum widow of one of the deceased Mahmood Akbar Khan) to challenge the acquittal of 12 accused persons namely, Riasat Ali, Ashiq Ali, Muhammad Asif, Akbar Gadhi, Muhammad Shafiq, Farooq, Razzaq Khan, Shahbaz Khan, Mohsin Khan, Ishtiaq Khan, Mushtaq Khan (since dead) and Basharat Khan (since dead), as they arise out of common judgments passed the learned trial and High Courts. 2. The prosecution story as disclosed in the F.I.R. Lodged by the complainant Nasrullah P.W.17 on 14- 4-1998 at 11-35 p.m. Is that on the same day at about 10-15 p.m. Mahmood Akbar Khan MNA, Masood Akbar Khan, Muhammad Sadiq, Sher Muhammad, Riasat Ali, Aziz-urRehman SDO WAPDA, Abdul Latif, Naseer Khan, Muhammad Sadiq, Haji Taj Din, Muhammad Moazam Khan and Bashir Khan were sitting at Dera of deceased MNA. The main gate of the Dera was closed while the small door was opened. The electricity lights were on. From the small door Naseer and Nasir armed with Kalashnikovs, Munir and Riasat armed with Rifle.222, Ashiq armed with .12 bore gun, who were: identified on electric bulbs/lights along with 13 unknown persons armed with firearm weapons entered the Dera. They recklessly started firing at Mahmood Akbar Khan and Masood Akbar Khan. The complainant Nasrullah Khan, Moazam P W.18, Haji Taj P.W.21 and Bashir Khan (not examined) ran and took shelter in a room of the Dera. The firing continued for about 10/15 minutes and
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thereafter the culprits went away on their Motorcycle, Wagon and Car. After the departure of the accused, the complainant and others came out from the room and found Mahmood Akbar Khan, Masood Akbar Khan, Riasat, Sher Muhammad Abdul Latif and Aziz-ur-Rehman sustained multiple firearm injuries. On the firearm reports, several persons arrived, with their assistance all the above named persons were shifted to Hospital. Except Aziz-ur-Rehman and Muhammad Sadiq, all the remaining injured persons died. 3. It is further alleged in the F.I.R. That before the incident, P.W. Amir Ali (not examined) informed the complainant that on 8-4-1998 at 2-00 p.m. He and his son Ramzan were present in the Dera of Saeed Chheena, where Saeed Chheena, Naseer, Nasir, Munir, Ashiq, Riasat along with 5/6 other persons were present. While they were sitting at the above time some vehicles (Pajeroes) came in which 8/9 persons were sitting and then they started consulting with each other. Saeed Chheena was telling his brothers that Waris had forcible occupied their land with the help of Mahmood Akbar Khan and Masood Akbar Khan, therefore, they should be eliminated and he would pursue the matter and get them released. Therefore, Naseer and other accused persons in pursuance of the conspiracy and on the direction and instance of Saeed Chheena committed the murders of Mehmood Akbar Khan, Masood Akbar Khan etc. And injured Aziz-ur-Rehman and Muhammad Sadiq. 4. The above statement of the complainant was recorded by Arshad Mahmood, Inspector (P.W.27) in Civil Hospital, Sheikhupura which was incorporated in 154, Cr.P.C. Book at 11-50 p.m. On the same night. 5. The police recorded the statements of witnesses, collected bloodstained earth, 126 empties of Kalashnikovs, 17 empties of Rifle .222, 5 empties of Rifle .244, 5 empties of .12 bore Gun and 12 bullets from the place of occurrence. They also recovered Wagon No,SGC-8186, Car No,AA-1400 and a motorcycle. The Investigating Offic'er also recoyered Rifle .222, .12 bore gun and kalashnikovs from appellants Muhammad Rafique, Aziz Khan and Iftikhar Ahmed Khan respectively, four Kalashnikovs and one rifle were recovered from the house of one Altaf Saleh on 8-6-1998. F.S.L. Report in respect of weapons secured from the house of Altaf Saleh and empties secured from the place of incident was positive. On 15-4-1998, P.W.27 recorded the statement of injured Siddique, who died on 21-4- 19998 thereafter it was treated as Dying Declaration. The Investigating Officer also collected the evidence of extra judicial confession of appellant Saeed Ahmed before P.W.23 Abdus Sattar. After arresting the accused and completing the investigation the police challenged 17 accused persons, namely Saeed Ahmed Chheena, Iftikhar, Mohsin Khan, Naseer Ahmed, Farooq, Basharat (since dead), Shahbaz Khan, Razzaq, Ishtiaq Khan, Akbar Gadhi, Muhammad Shafiq, Riasat Ali, Muhammad Asif, Mushtaq Khan (since dead) Aziz Khan, Muhammad Ashiq and Rafique Gadhi and showed 10 accused persons, namely Ali ,Raza Khan, Fazal-ur-Rehman Khan,Naseer Ahmed, Munir Ahmed, Shan, Qaiser alias Pervez, Qaiser Chheena, Mansha alias Dr. Javed, Akram Rehmani and Farooq alias Pomi as absconders out of them 3 accused, namely Qaiser alias Pervez, Mansha alias Dr. Javed and. Akram Rehmani died in police encounters. 6. At the trial, the prosecution examined 30 witnesses. The trial Court relied upon motive, conspiracy, ocular evidence, dying declaration and recoveries but did not believe the extra-judicial confession of the appellant Saeed made before P.W.23. The learned trial Court after relying upon the above pieces of evidence and scrutinizing the same acquitted the accused Riasat, Ashiq, Muhammad Asif, Akbar Gadhi, Muhammad Shafiq and Farooq son of Siddique, whereas, convicted and sentenced the remaining accused in the following manner:-- Iftikhar Khan } Naseer Ahmed Chheena } Aziz Khan } Muhammad Rafiq Gadhi }Conviction under sections 148/149 P.P.C. Sentence 3 years R.I. each Fine Rs,50,000
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In default 3 months S.I. Ditto Conviction under sections 460/149, P.P.C. Sentence: Imprisonment for life each Ditto Conviction: under sections 302(b)/149, P.P.C. Sentence Death on six counts. Compensation: one Lac in default: 6 month S.I. Conviction: under sections 324/149, P.P.C. Sentence: 10 years' R.I. Each Ditto Compensation: Rs,50,000 In default: 36 months' S.I. Each Naseer Ahmad Chheena } Saeed Ahmad Chheena } Mushtaq Khan } Shahbaz Khan } Razaq Khan }Conviction: under sections 120(b)/149 Sentence: Imprisonment for life Compensation: Rs,50,000 In default: 3 month S.I. Mohsin Khan } Ishtiaq Khan } Aziz Khan } Basharat }Conviction: under sections 129(b)/149 Sentence: Imprisonment for life Compensation: Rs,50,000 In default: 3 month S.I. Mohsin Khan } Razaq Khan } Shehbaz Khan }Conviction: under section 342, P.P.C. Sentence: 1 year R.I. each Iftikhar Khan } Naseer Ahmad Chheena } Aziz Khan } Muhammad Rafiq Gadhi } Saeed Ahmad Chheena } Mushtaq Khan } Razaq Khan } Shehbaz Khan } Mohsin Khan } Ishtiaq Khan } Basharat }Conviction: under section 7 of ATA, 1997 Sentence: Death to each Saeed Ahmad Chheena The Sentence of death set aside but convicted under section 120-B read with 302, P.P.C. -and sentenced to imprisonment for life on six counts. Further directed to pay Rs,50,000 on each count under section 544-A, Cr.P.C. And in default to undergo six months R.I. On each count."
' All the sentences were ordered to run concurrently with benefit of section 382-B, Cr . P. C 7. The convicted 'accused persons preferred appeals to challenge their convictions and sentences, whereas the State filed appeal against the finding of acquittal before the Lahore High Court,
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Lahore. The learned High Court after hearing the parties' counsel found that there was electric light in the Dera at the time of occurrence; ocular account was partly believed; independent and total reliance was not placed on the dying declaration but sought corroboration which was found from the evidence of P.Ws.17, 18 and 21; conspiracy hatched on 8-4-1998 was not relied upon, but the fact of arrest of the appellant Saeed Ahmed Chheena in a 13(d), Arms Ordinance case before the incident was found favour, therefore, he was found liable for commission of offence punishable under section 120-B, P. P. C .; wrongful confinement of Driver of the Wagon Arshad Pervez P. W.16 was found doubtful therefore conviction and sentence under section 342, P.P.C. Were set aside, evidence of extra judicial confession was not challenged, therefore no finding was given. The High Court also relied upon F.S.L. Report in respect of weapons secured from the possession of appellant Naseer, Iftikhar, Aziz and Rafique. Motive in respect of rivalry between Mahniood Akbar Khan and Manwar Manj was not relied upon on the ground that offence could not have been committed because of Munawar Manj and no effort was made to prove the said motive. As regards the motive about grievance of Naseer Chheena, about recovery of possession of land by Waris with the help of deceased Mahmood Akbar and his brother, the Court observed that the said motive might have existed but it did not make any difference because Waris had not been produced in the evidence. 8. After assessing the evidence, the learned High Court acquitted the accused Razzaq Khan, Shehbaz Khan, Mohsin Khan, Ishtiaq Khan, Mushtaq Khan (since dead) and Basharat by allowing their appeals, while the appeals of Iftikhar Khan, Aziz Ahmed Khan, Muhammad Rafiq Gadhi, Naseer Ahmed Chheena and Saeed Ahmed Chheena were dismissed and reference for confirmation of death sentence was allowed under the impugned judgment dated 11-6-2002. 9. On 1-10-2002, this Court granted leave to appeal on the petitions filed by the appellants inter alia to consider whether the appellants were convicted and sentenced by the trial Court as well as the High Court by following the principle of safe administration of justice or otherwise. On the same date an order for issuance of pre-admission notice to the acquitted accused was passed on the petition filed by Mst. Khurshid Begum. 10. We have heard the learned counsel for the parties as also for the State and have reappraised the evidence with their assistance. 11. Learned counsel for the appellants in Criminal Appeals Nos.354 to 356 of 2002 have separately argued their respective cases. However, their submissions are mainly on five counts i,e, (1) presence of electricity light at the time of incident, (2) dying declaration, (3) conspiracy, (4) F.S.L. Report and (5) ocular account. Their common arguments are that there was no electricity at the time and place of occurrence; they have seriously challenged the statements of witnesses and particularly the statement of Aziz-ur-Rehman P.W.19; that the incident took place at about 10-15 p.m. But the electricity was restored at 10-30 p.m.; that the witnesses have improved their statements by changing the time of occurrence from 10-15 p.m. To in-between 10-30 p.m. To 10-45 p.m. So as to bring the occurrence within the time when the electricity was restored; that improvements so made created doubt about the credibility of witnesses; that only five accused persons were nominated by name in the F.I.R. But subsequently the number of nominated accused persons was gradually increased to 27 and that there are other improvements also, therefore, the evidence of the witnesses cannot be relied upon. 12. As regards the dying declaration, they have submitted that the deceased Sadiq was not in a position to talk when the alleged dying declaration was recorded; that the deceased had received serious injury on the vital part of his body and when he was brought in the hospital his condition was serious therefore he was referred to Surgical Ward for further necessary treatment and that it was not, possible for the deceased to have given statement on the next day of the incident after operation in critical condition. They added that the dying declaration was not recorded in the presence of Doctor; that no certificate was obtained from the Medical Officer to the effect that the
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deceased was able to talk; that no such Doctor was examined to prove that he granted such permission; that the dying declaration was written by another Police Officer but he was not examined in the Court to prove that he was the author of the dying declaration; that the Investigating Officer namely Arshad Mahmood, P.W.27 simply attested the dying declaration by putting his signature on it; that the dying declaration is a forged document; that the learned High Court has also not believed the dying declaration in toto as it was partly believed and that in such circumstances the dying declaration has lost its evidentiary value. 13. As regards conspiracy, they have stated that in the F.I.R. The complainant alleged that the conspiracy was disclosed to him by P.W. Amir Ali but he was not examined and instead thereof his son Muhammad Ramzan P.W.14 was examined; that the complainant has introduced Muhammad Ramzan so as to give more details of the conspiracy allegedly hatched on 8-4-1998; that the complainant has improved his statement during the course of evidence from his statement made in the F.I.R. And that the learned High Court has not believed the conspiracy which has rightly been discarded. 14. As regards the F.S.L. Report, learned counsel for the appellants have argued that the prosecution allegedly recovered Rifle .222 from Muhammad Rafique, .12 bore gun from Aziz Khan and Kalashnikov from Iftikhar Ahmed Khan; that the F.S.L. Report does not show that any empty secured from the place of incident matched with the weapons secured from the appellants; that the F.S.L. Report is in, respect of the weapons secured from the house of one Altaf Saleh in the absence of the accused therefore the said report does not connect the appellants with the commission of the crime; hence the finding of the learned High Court on the above point is not correct. 15. As regards motive, they have argued that the learned High Court has believed the motive to connect the appellant Saeed only on the ground that he was arrested in a 13(d) Arms Ordinance case through the accused Basharat (now dead); that there is no evidence on record to show that there was any conspiracy between Basharat and the appellant Saeed or that the said case was manipulated by the appellant so as to create a defence in the case; that the said defence does not find place in the F.I.R. As such it is an improved version of motive. They have added that the prosecution evidence is not sufficient to convict the appellants on the capital charge. 16. Conversely, learned counsel for the petitioner in Criminal Petition No,623-L of 2002 has argued that the incident took place after the restoration of electricity as all the witnesses deposed that they saw the incident on the electric light; that the statement of Aziz-ur-Rehman P.W.19 clearly establishes the fact that he reached at the Dera of deceased Mahmood Akbar Khan after getting the electricity restored and he saw the incident on the said light; that P.W.19, an injured witness, SDO WAPDA has no relationship with the complainant and has fully supported the incident; that P.W.21 Haji Taj Din is also not related to the complainant; that the specific time of the incident given by the witnesses is immaterial in presence of the fact that there was electricity at the time of incident. He has further argued that the ocular testimony of P.Ws.17, 18, 19 and 21 establishes the incident by giving its details and their evidence is unanimous on all material aspects of the case; that the witnesses have no reason to falsely involve the appellants; that the complainant gave the names of the remaining 'accused in his supplementary statement, which was recorded in the Inquest Report; that the said statement was recorded on the night of the incident without loss of time, therefore, it cannot be discarded and no adverse inference can be taken on the evidence of complainant; that the ocular evidence is supported and corroborated by the medical evidence, which is further corroborated by Kamran Khan P.W.20, who saw the appellant reaching the place of incident when he was standing in the street and also saw them decamping from the said place in their vehicles and that the ocular testimony is trustworthy and reliable. 17. As regards dying declaration, he has stated that dying declaration was signed by the Investigating Officer, who has fully supported the case; that the deceased made dying declaration
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before him; that the deceased was able to talk as per endorsement made by the Doctor on the application moved by the Investigating Officer; that both the Courts below have relied upon the dying declaration which is not . Required to be interfered with and that the deceased had died after seven days of the incident. 18. As regards conspiracy, he has stated that the evidence of the Nasrullah Khan, the complainant P.W.17, Muhammad Ramzan P.W.14 and Arshad Pervez alias Gullo Badshah P. W.16 has fully supported the conspiracy hatched on 8-4-1998 in the Dera of the appellant Saeed. Ahmed Chheena; that P.W.14 disclosed the conspiracy to the complainant who had also supported him, therefore, the learned High Court did not properly appreciate the evidence of these witnesses and reached a wrong conclusion, which is required to be set aside. He has also argued that the weapons secured from the possession of the appellants Muhammad Rafique, Aziz Khan and Iftikhar Ahmed and the weapons secured from the house of Altaf Saleh with positive F.S.L. Report further support the prosecution case. 19. Learned counsel for the State has supported the impugned judgment and adopted the arguments of learned counsel for the petitioner. 20. Having heard the arguments of learned counsel for the parties and reappraised the evidence on record, we find that in the F.I.R., the complainant alleged that the incident took place on 31-8- 1998 at 10-15 p.m. He also stated that he identified the accused on the electric light meaning thereby that from the very beginning the prosecution took the plea that when the incident took place, the electricity was on. It is an, admitted position that before the incident there was electricity failure and the matter was reported to the WAPDA authorities who got the electricity restored. The presence of Aziz-ur-Rehman Khan, SDO WAPDA P.W.19 and the deceased Muhammad Latif, Line Superintendent further establishes the fact that there was some fault in the electricity but P.W.19 Aziz-ur-Rehman categorically stated . In his statement before the Court that after getting the electricity restored, he reached the Dera of deceased Mahmood Akbar Khan. The other witnesses nameiy P.W.s.18 and 21, who were present inside the Dera and P.W.20 who was present outside the Dera stated that electricity was on at the time of incident. Thus it has been established beyond any shadow of doubt that the electricity was on when the incident took place. No doubt, the P.Ws gave different time of occurrence as at the initial stage the prosecution took the plea that time of incident was 10-15 p.m. But this time was approximate as in the F.I.R. The complainant had used the words "at about" while mentioning the time of incident. Subsequently, the witnesses gave the time in-between 10-30/45 p.m. The important question in this case is not the time of incident but whether there was electricity light at the time of occurrence. 21. After re-assessing the evidence on record qua the above points, we concur with the findings of the learned High Court that the incident took place when the electricity was restored. 22. As regards the ocular testimony, it consists of four witnesses, the complainant Nasrullah Khan P.W.17, Muhammad Moazam Khan P.W.18, Aziz-ur-Rehman P.W.19 and Haji Taj Din P.W.21. P.W.18 is cousin of the complainant, P.Ws.19 and 21 are not related with the complainant but they happened to be present at the Dera when the occurrence took place. Evidence of P.Ws 17, 18 and 21 is identical to each other as they are the persons who ran and took protection in a room of Dera during the course of firing. They did not receive any injury, whereas P.W.19 received the injuries as he was present at the place where the other deceased persons received injuries, therefore, the presence of Aziz-ur-Rehman P.W.19 cannot be disputed. 23. The complainant in the F.I.R. Involved 18 persons out of them 5 were identified to be accused namely Naseer, Nasir, Munir, Riasat and Ashiq while 13 accused were unknown persons. However, in the deposition in Court he disclosed that total number of the accused was 16 out of them he identified 15 accused persons, namely Riasat, Ashiq, Munir, Iftikhar, Ali Raza, Fazal Rehman, Qaiser, Naseer, Aziz Khan, Nasir, Rafique Gadhi, Qaiser of Narowal, Mansha alias Dr. Javed, Akram Rehmani
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and Shan and one accused was not identified by him. In the cross-examination, he admitted that he had not named Ishtiaq, Shahbaz, Raza Khan, Mohsin Khan, Iftikhar Khan and Ali Raza in the F.I.R. But further added that he named them in the supplementary ' statement. 24. From the above position, it is clear that the complainant has improved his statement from the statement which he had already made in the F.I.R. And that too by nominating more persons in his Court statement though at the initial stage he was not able to recognize those persons as they were unknown. It is also in evidence that the complainant knew these persons before the incident, therefore, if he had seen them at the time of incident when he claimed that there was electricity light then it does not appeal to reasons that he would have missed the name of all those persons. This improvement creates serious doubt about his veracity and credibility. Further he admitted that he named the appellant Asif, Aziz Khan and Fazal Rehman in the F.I.R. But when he was confronted with it then it was found that he did not name them. He has also belied his own statement recorded in his examination-in-chief by stating that he did not state that accused Naseer, Nasir, -Munir, Riasat, Ashiq and Qaiser are real brothers of accused Saeed Ahmed Chheena but when he was confronted with the examination-in-chief it was found that he had stated such fact. This shows that the witness has supported suppressed the truth and spoke lie and has no sanctity of Oath. This Court in the case of Saeed Muhammad Shah v. State 1993 SCM R 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such C witness requires corroboration. In the case of Khalid Javed v. State 2003 SCM R 1419 while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence. 25. As regards supplementary statement, P.W.17 took names of 10 more accused persons from the names he took in the F.I.R., the same can be treated as statement under section 161, Cr.P.C. That can only be used by the accused to contradict the witness. It cannot be used by the prosecution for any purpose. This improvement clearly shows that supplementary statement was made after due consultation and E deliberation to falsely involve the accused. This point was examined by this Court in the case of "Falak Sher v. State 1995 SCM R 1350", wherein it has been observed that, "any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it and the involvement of additional accused in such statement was fake improvement which made the basis for other eyewitnesses as well for false implication". The said rule was reiterated in subsequent decision of this Court in the case of Khalid Javed v. State 2003 SCM R 1419 and further observed that such witness would be unreliable. 26. The statements of P, W.18 Muhammad Moazam Khan and P.W.21 Haji Taj Din reveal that they also took the names of 15 accused persons and one accused was shown to, be unknown. Their statements are in line with the supplementary statement ,of the complainant. The record shows that their statements under section 161, Cr.P.C. Were recorded after the recording of supplementary statement of the complainant, therefore, the possibility of consultation and deliberation before recording there statements cannot be ruled out. Their statements further G reveal that they idso made improvements from their earlier statements on various points, such as running towards north side, firing made on…
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