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Petitioner: The STATE VS Respondent: MUHAMMAD ABBASI and others
Court Name: Islamabad High Court Judge(s): Athar Minallah, Aamer Farooq Title: The STATE vs MUHAMMAD ABBASI and others Case No.: Murder Reference No.6 of 2011 Date of Judgment:2015-06-18 Reported As: 2015 P Cr. L J 1685 Result: Appeals dismissed
Judgment ORDER ATHAR MINALLAH, J.---Through this consolidated judgment we intend to decide the instant Murder Reference No,6 of 2011 along with Crl. Appeal No,103 of 2011, Crl. Appeal No,1 of 2012 and Crl. Revision No,3 of 2012, as they relate to the same incident and arise from the judgment dated 10-12- 2011, passed by the learned Additional Sessions Judge, Islamabad. Cr. Appeal No, 103 of 2011 has been filed by Muhammad Abbassi, who has been convicted and sentenced to death, while Cr. Appeal No,1 of 2011 and Cr. Revision No,3 of 2011 have been instituted by Abdul Rehman, who had filed a private complaint regarding the incident. In the former, the acquittal of Liaqat Ali Abbasi has been assailed, while in the latter enhanced compensation has been sought. 2. The Murder Reference has been referred in respect of the judgment dated 10-12-2011 whereby the appellant in Crl. Appeal No,103 of 2011 has been convicted and sentenced in the following terms: "Since, the defence side has not produced any evidence to prove its version, reflecting the mitigating circumstances for a lesser punishment, therefore, he is convicted under section 302(b)/34 P.P.C. And sentenced to death by way of tazeer. He shall be hanged by his neck till he is dead. He shall also pay a compensation in the sum of Rs,3,00,000 to the legal heirs of the deceased under section 544-A, Cr. P. C. In case of failure to pay compensation, he shall have to undergo six months imprisonment." 3. The respondent, namely Liaquat Abbassi in Criminal Appeal No,1 of 2012, was acquitted on the grounds of benefit of doubt. 4. The facts, in brief, are that criminal case FIR No,52/2010 dated 13-3-2010, Exh.PH/1 (hereinafter referred to as the "FIR") was registered under section 302/34 of the Pakistan Penal Code, 1860 (hereinafter referred to as the "P.P.C.") by Mst. Ghulam Fatima, who is the mother of the deceased
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Naseer Ahmed (hereinafter referred to as the "deceased"). The case of the prosecution, as narrated in the FIR, is that the complainant was informed by her daughter-in-law Mst. Nuzhat Abbass, wife of the deceased, that at 8-30 am on 13-3-2010, while the latter was travelling with the deceased on a motorcycle, a silver coloured vehicle, bearing registration No,943, intercepted them and Muhammad Abbassi, Liaqat Abbassi and two other unknown companions alighted therefrom. They were said to be carrying firearms at that time. It was alleged that Muhammad Abbassi placed a pistol on the head of the deceased, while the other accused forced him to sit in the vehicle. One of the accused took away the motorcycle. Mst. Nuzhat Abbass went to the nearby residence of the complainant i,e, the mother of the deceased, and informed her about the incident. Since a male member was not present in the house of the complainant, therefore, she informed Abdul Rehman, her son-in-law.. Abdul Rehman, after being so informed came to the complainants house. The three went to Bani Gala in a Taxi, and upon reaching the under construction house of Muhammad Abbasi, they witnessed that the deceased was being fired upon by the latter, along with Liaqat Abbassi and two other unknown persons on the roof. Having witnessed the incident, they promptly proceeded to the nearest Police Station and an FIR was registered pursuant to the complaint, Exh.PH. The deceased had been 'nominated in a criminal case registered for the murder of Muhammad Abbassi's brother and nephew. The deceased remained a proclaimed offender in the said trial till his murder on 13-3-2010. The proceedings for the attachment of the properties of the deceased in the said criminal case had also been ordered by the learned trial court. 5. Pursuant to the complaint Exh-PH, and FIR, Exh-PH/1, the Investigating Officer, namely Muhammad Fayyaz Khan SI, who appeared as CW-7, proceeded to the crime scene i,e, the under construction house of Muhammad Abbassi. He found the dead body of the deceased, while Muhammad Abbassi was said to be lying on the floor in an injured condition. The latter was taken to the hospital for medical examination. The injury statement of Muhammad Abbassi Exh.CW-7/A and site plan Exh-CW-7/B were prepared. Recovery memos were also prepared and the same are as follows:- i. Blood sample obtained on cotton Exh-PB. ii. Two empties of .30 Bore pistol Exh-PD. iii. 9MM pistol P-20 along with magazine and four live bullets Exh. PC. iv. Two empties of .30 bore pistol Exh. PD. v. One empty of .9MM Exh-PE vi. One helmet, two live rounds, one broken pair of glasses, keys of motorcycle Exh-PE. vii. A mobile phone taken into possession after the search of the deceased, a handkerchief and cash amount Exh-PG. 6. An inquest report Exh-PW-4/B was prepared and the body of the deceased was dispatched for conducting an autopsy (Postmortem). Vehicle No,HJ-943 and the motorcycle of the deceased were taken into possession vide recovery memo. Muhammad Abbassi was arrested at the hospital and his cell phone and trousers (Shalwar) were taken into possession vide recovery memo. Exh- PW-7/C. The clothes of the deceased were taken into possession vide Exh-CW-7/E. At 3:45 pm Muhammad Abbassi gave a written application and the same was received and placed on record as Exh-CW-7/F. The site plan of the place from where the deceased was said to have been forcibly taken away/abducted was prepared as Exh.PW-7/D. The draftsman visited the place of occurrence on 22-3-2010 and prepared site plans Exh-CW-4/A & CW-4/B. The Investigating Officer received the respective cell phone details said to have been in the possession of the deceased and Muhammad Abbassi. The autopsy report of the deceased, dated 13-3-2010, is Exh-CW-1/1. The medico legal certificate of Muhammad Abbassi is CW-3/1 , whereas the report of the Medical Board, which had examined the latter on 19-5-2010 is Exh.CW-13/A. The reports of the Chemical
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Examiner, Forensic Science Laboratory and the Serologist were tendered during the trial as Exh.PJ, Exh.PK and Exh.PL respectively. 7. The report under section 173 of the Criminal Procedure Code (hereinafter referred to as the "Cr.P.C.") was submitted before the Trial Court on 2-7-2010. In the said report, Liaqat Abbasi was placed in column No,2. The charge was formally framed on 18-9-2010 against Muhammad Abbassi and Liaqat Abbasi under section 302/34 of the P.P.C. A private complaint was filed by Abdul Rehman under section 302, P.P.C. On 7-5-2011. Pursuant to conducting an inquiry under section 202 of the Cr.P.C. a report was submitted on 25-8-2011. On 10-9-2011, the proceedings of the Challan case and the complaint case were consolidated, and a charge was framed under section 302/34, P.P.C. On 17-9-2011. Muhammad Abbassi and Liaqat Abbassi did not plead guilty and consequently the trial ensued. 8. The prosecution produced five witnesses, while thirteen witnesses, appeared and were examined as Court witnesses. The prosecution gave up six witnesses namely Fazal-ur-Rehman, Tariq Mehmood, Muhammad Shafi, Abdul Ghaffar, Ahsan Ali and Tahir Abbass. Mst. Ghulam Fatima was also given up as a witness on the ground that due to her old age she could not appear. Muhammad Khan, said to be the guard of Muhammad Abbassi, was alleged to have been influenced and won over by the defense side and, therefore, dropped. 9. Muhammad Asad Mughal son of Shoukat Ali Mughal PW-1, deposed regarding handing over of the pistol belonging to the deceased along with the license in the latter's name to the Investigating Officer. The ocular account was given by Abdul Rehman son of Mehboob Rabanni PW-2, Mst. Nuzhat Abbass, widow of Naseer Ahmed, as PW-3, Zamir Ahmad son of Masood Akhtar PW-4 and Liaqat Abbassi son of Muhammad Jaffar Abbassi PW-5. Mst Nuzhat Abbas PW-3 and Liaqat Abbassi, PW-5 stated having witnessed the taking away of the deceased from near the portrait of Quaid-e-Azam Muhammad Ali Jinnah on the Expressway. Abdur Rehman, PW-2, and Mst. Nuzhat Abbas PW-3, deposed that they had witnessed the occurrence of firing at the deceased by Muhammad Abbassi and others on the roof of the under construction house. Zamir Ahmed, PW-4, stated that when he received information regarding the incident he reached the place of occurrence and witnessed the concerned police officials there. He also signed the inquest report Exh . PW-4/A. 10. The medical evidence in the form of the autopsy report dated 13-3-2010 Exh-CW-1/l, was prepared pursuant to conducting of the autopsy by Dr. Muhammad Naseer, Director Emergency, PIMS Hospital, Islamabad, who appeared as CW.1. He signed the inquest report Exh-CW-1/2 and prepared the pictorial diagram Exh-CW-1/3. The details of injuries on the .Body of the deceased are as follows; i. Fire arm entry wound with no blackening but, charring marks on the medial aspect of axilary line 5 cm inferlateral to right nipple measuring 2x1 cm ii. Fire arm exit wound on the lateral aspect of T12 area on the back of left side of chest in the 6th intercostals space measuring 1.5x1 CM iii. Fire arm injury wound no blackening but charring marks on the lateral aspect of the lower 1/3rd of right thigh measuring 2x1 cm. iv. Small fire arm entry wounds six in number in a diameter of &4CM, each measuring 0.5 x 0.5 cm v. Fire arm exist wound on the posterior aspect of lower 1/3 of right thigh just about the right knee measuring 1.5x1.5 cm. Vi. Fire arm entry wound with no blackening but charring marks on the posterior lateral aspects of right knee just below the right knee joint measuring 1 x 1 cm. Vii. Fire arm exit wound on the medial aspect of lower 1/3 of right leg measuring 4 x 3 cm in diameter.
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Viii. Fire arm entry wound with no blackening but charring marks on the lower 1/3 of posterior aspect of right thigh measuring 1 x 1 CM. 11. Muhammad Abbassi was attended by Dr. Sajid Zaki Chohan, Medical Officer, Federal Government Services Hospital, Islamabad on 13-3-2010. He appeared as CW-12 and produced the medico legal-certificate Exh.CW-3/8. The outdoor ticket issued by the hospital is Exh.CW-3/B. The recorded findings on the medico legal report are as follows:-- i. "Person well oriented at time E. Space. ii. Bone deep laceration 2 cm at parietal region auteriorly. iii. Muscle deep puncture wound at parietal region 3 cm behind to the fist laceration. iv. Lower incisor dislocated. v. Puncture wound 2 cm to lower lip, not through E. Through. Dental Findings vi. Laceration of upper E. Lower lip mucesa. Vii Degree 1 mobility. Viii No fracture of Jaw seen. ". 12. A Medical Board was also constituted and its report was produced by one of its members, namely Dr. M. Ehsan ul Hach Medical Specialist, who appeared as CW-13. The findings of the Medical Board are Exh-CW-13/A. 13. Muhammad Abbassi preferred not to be examined on oath and, therefore, recorded his statement under section 342 of the Cr.P.C. In his statement he denied and controverted all the allegations levelled against him, and he claimed to be innocent. He, however, opted not to make a statement on oath under section 340(2) of the Cr.P.C. 14. After the conclusion of the trial Muhammad Abbassi was convicted and sentenced, as the learned trial Court was satisfied that the prosecution had been able to prove its case beyond a shadow of doubt, while Liaqat Abbasi was acquitted. 15. Mr. Sardar Muhammad Ishaq Khan, Senior Advocate, Supreme Court, argued the case on behalf of Muhammad Abbassi and contended that; the complaint Exh-PH/1 has not been endorsed by a police officer; the story of the alleged abduction of the deceased from near the portrait of the Quaid-e-Azam on the expresswa y is false and concocted; instead of recording a direct statement by the police officer, the complaint in writing was placed on record as an afterthought; Mst. Nuzhat Abbass,, despite being an educated lady and admittedly being present in the Police Station, deliberately did not become the complainant, nor it is possible that she is unaware of the person who wrote the application; the complainant Mit. Ghulam Fatima, the mother of the deceased, was not produced in the Court; no document was produced in the Court in support of the contention that she was of old age and could not attend the Court proceedings; her statement has been deliberately withheld and, therefore, it is to be presumed that had she been produced she would, have spoken the truth by contradicting the prosecution's case; witnesses Were procured and a false story was concocted after the body of the deceased was sent to the hospital, as is evident from the fact that it was kept in the mortuary pursuant to the written request made in this regard; the placing of the body in the mortuary is enough to establish that the story was concocted; the place of occurrence is the roof top of the under construction house of Muhammad Abbassi; the story of abduction of the deceased from the expressway near the portrait of the Qauid-e-Azam is illogical and unbelievable; the alleged abduction is said to have taken place in the morning, when the highway is not only busy but guarded by the personnel of law enforcing agencies deployed for the protection of high officials and other important dignitaries; the Police Station, Koral, is hardly 2 furlongs from the place of occurrence and yet Mst. Nuzhat Abbass, wife of the deceased, did not report the matter nor raise an alarm at the time when her husband was being taken away as
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alleged; Naseer Ahmed, deceased, and his two brothers had killed the brother and nephew of Muhammad Abbassi and all of them remained proclaimed offenders; one o( them, namely Shaukat, was arrested in the criminal case and has been convicted, while orders for the confiscation and auction of the property of the deceased had also been passed; the deceased and the other proclaimed offender had vigorously pursued Muhammad Abbassi for reconciliation; the silence of Mst. Nuzhat Abbass at the time of the alleged abduction is not convincing nor possible, particularly when Muhammad Abbassi had nominated the deceased in the case registered for the murder of his brother and nephew; the falsity of the claim of abduction is also evident from the contradictions in the statement of Mst. Nuzhat Abbass regarding the apparel worn by the deceased at the time he was taken away, as it does not correspond with the clothes taken into possession at the hospital; the brother of the deceased, namely Liaqat Ali, was produced as a witness of the alleged Abduction after a considerable delay, and obviously as -an afterthought; the delay in recording the statement of PW-5 is fatal and, therefore, his testimony cannot be believed; the Challan was submitted in the Court on 23-6-2010 and the charge was framed on 18-9-2010, which did not include the offence under section 365 of P.P.C.; the complaint filed by Abdul Rehman after more than one year from the date of the incident was also an afterthought and an attempt to fill in the lacunas of the prosecution case; the complaint and Challan were consolidated, and the fresh charge framed on 25-8-2011 also did not include a charge under section 365, P.P.C.; this by itself establishes that the story of the abduction is concocted; from the place of abduction to the crime scene there are several areas where the murder could have been committed, instead of taking the deceased to the roof the house of Muhammad Abbassi; neither is the assertion that the deceased was dragged from the motorcycle and forced into the vehicle supported by evidence, nor the taking by force of the deceased onto the roof via temporary wooden stairs; the medical report or the autopsy report does not support the said story; it does not appear to a reasonable and prudent mind that the alleged abductors would also take away the motorcycle and the helmet of the deceased; the time of occurrence is not mentioned in the FIR nor in the statements of the alleged eye-witnesses i,e, PW-2 & PW-3; the FIR does not mention the description of the injury; it is not believable that Muhammad Abbassi would have waited for PW-3, PW-2 and the complainant in the FIR to reach the place of occurrence and then fire at the deceased; this is also not a plausible story on account of the enmity between the two parties; the Trial Court could not have allowed the complainant's counsel to cross-examine the court witnesses without first declaring them hostile, as an objection had been raised and in this regard reliance has been placed on PLD 1966 SC 708, "Noor Ellahi v. The State"; there is nothing on record to indicate as to why the complainant, PW-2 and PW-3 proceeded to the place of occurrence rather than first reporting the matter to the police; the data obtained from the cellular phone company relating to the SIM recovered from the body of the deceased clearly shows that calls were received till 10-11 am, which establishes that the deceased was alive and in contact with others; the details of the SIM obtained by the Investigating Officer from the concerned cellular company is admissible in evidence and reliance has been placed on "Alamgir Khalid Chughtai v. The State" PLD 2009 Lah. 254; this in itself establishes that the story of abduction is false; Muhammad Abbassi and Liaqat Abbassi remained on remand for a considerable time but nothing incriminating was recovered from them; the police found Muhammad Abbassi lying in an injured condition at the crime scene, and was taken to the hospital by CW-2; the evidence recorded by CW-3, a member of the Board which had examined Muhammad Abbassi, is being misinterpreted and misconstrued; the medical practitioner who had immediately attended to Muhammad Abbassi when he was brought to the hospital is reliable, and the medico legal certificate clearly shows/describes the nature of injuries on the body of Muhammad Abbassi; the opinion/findings of the Board, which had conducted the examination of Muhammad Abbassi after two months and six days is of no legal value; the report of the Medical
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Board is also not to be considered, as Muhammad Abbassi had not been confronted by framing a question to him for the purpose of the statement under section 342 of Cr.P.C.; it has remained a consistent version of Muhammad Abbassi that the deceased came to the roof fully armed and attacked the former; the guard Muhammad Khan, upon witnessing that Muhammad Abbassi was being fired at, killed the deceased and, thereafter, disappeared from the scene; said Muhammad Khan was later arrested and after settlement and striking a deal with the police, his statement under section 164, Cr.P.C. Was recorded; however, he was given up as a witness as he realized his mistake; the learned Trial Court has committed an error by observing that Muhammad Abbassi had preferred not to be examined on oath nor produced any evidence, whereas it is a settled principle of law that the prosecution has to prove the case beyond a shadow of doubt; the version of an accused may be false, a sham and inconsistent, yet the case will hinge on the evidence produced by the prosecution, and in this regard reliance has been placed on "Shamir alias Shamla v. The State" PLD 1958 SC 242, "Khalid Mehmood v. The State", 2004 PCr.LJ 984, and "Nadeem-ul-Haq Khan and others v. The State", 1985 SCMR 510; the, evidence against Liaqat Abbassi and Muhammad Abbassi was the same, and yet the former was acquitted by giving benefit of doubt, while the latter convicted and sentenced to death; neither were any pellets recovered from the body of the deceased, nor were exit wounds found corresponding thereto; the injury on the body was on account of the deceased falling on the ribbed iron bars, as is evident from the photographs taken at the crime scene; the motive for the deceased to attack Muhammad Abbassi was obviously their enmity. The learned counsel took us through the relevant portions of the judgments in "Alamgir Khalid Chughtai v. The State" PLD 2009 Lahore 254, "Shamir alias Shamila v. The State", PLD Supreme Court (Pak) 242, "Khalid Mehmood v. The State", 2004 PCr.LJ 984, "Muhammad Igbal v. The State", 1999 MLD 1557, "Safdar Ali v. The Crown" PLD 1953 Federal Court 93, "Rab Nawaz and others v. The State" PLD 1994 Supreme Court 858, "Hakim Ali and 4 others v. The State and another" 1971 SCMR 432, "Nadeem ul Hag Khan and others v. The State", 1985 SCMR 510, "Inayatullah and another v. The State", PLD 1966 (W.P) Lahore 8, "Ghulam Qadir and 2 others v. The State", 2008 SCMR 1221, "Allah Ditta v. The State", 1999 YLR 1478 "Muhammad Khan v. Maula Bakhsh and another" 1998 SCMR 570, "Syed Saeed Muhammad Shah and another v. The State" 1993 SCMR 550, "Muhammad Ashiq v. The State" 1990 PCr.LJ 368; "Asghar All alias Sabah and others v. The State and others" 1992 SCMR 2088, "Ch. Zafar ul Hag and another v. The State" PLD 1968 Lahore 437, "Gulab and another v. The State" 1986 PCr.LJ 1297, 'Muhammad Mushtaa v. The State",PLD 2001 Supreme Court 107 and "Shaukat All v. The State" 2005 MLD 1470. 16. Mr. Muhammad Ilyas Siddiqui, Advocate Supreme Court, appeared on behalf of the appellants in Criminal Appeal Nos.1/2012 and 3/2012, and argued that; the FIR was promptly lodged; an inquest report was prepared at the spot, as is evident from the statement of PW-4; Muhammad Abbas!!i had submitted an application Rxh,CW/F, soon after the incident, and the story narrated therein contradicts the later version; in hi; application CW/P Muhammad Abbassi had claimed that the firing had started from the road side when the download had climbed the roof to attack him; Muhammad Abbassi has been giving contradictory versions, and in this regard the learned counsel took us through the record; the statement of Muhammad Abbassi in his application Exh- CW-7/F has been confirmed by witnesses i,e, the Investigating Officer etc; the applicition made by Muhammad Abbassi Exh-CW-7/F and referred to In the statement of CW-7, clearly contradicts the version of the accused; Muhammad Abbassi failed to prove his version of self-defense to the effect that the deceased had come to the place of occurrence to attack him and consequently was killed by his guard, Muhammad Khan; the Medical Board gave its findings clearly establishing that the injuries on the body of Muhammad Abbassi were self-inflicted; Muhammad Abbassi admits that he was present at the crime scene, which happened to be the roof of his under construction house; the evidence of CW-3 and outdoor ticket in the name of Muhammad Abbassi establishes that the
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medico legal report is fake and has been fabricated so as to facilitate the creation of a false plea; the medical evidence goes against the version of Muhammad Abbassi; the assertion made by the defense that the injuries on the body of the deceased are on account of his falling on the iron rods is beyond belief; the recoveries of empties from the place of occurrence establish that the firing took place from three different fire arms, thus conclusively contradicting the version of Muhammad Abbassi; the handing over to the Investigating Officer of the pistol and license belonging to the deceased proves that he was unarmed at the time of his abduction; the abduction is established through ocular evidence of PW-3; the data obtained from the cellular phone was not in the name of the deceased and the owner was neither examined nor his statement recorded during the investigation; reliance has also been placed on "Kashif Saddique and 2 others v. The State", 2008 PCr.LJ 1039, "Muhammad Sarfraz v. The State through P.G Punjab and another", PLD 2013 Supreme Court 386, "Mazhar Hussain v. The State", 2002 PCr.LJ 614, "Mawaz Khan v. Muhammad lqbal and 4 others" 2001 PCr.LJ 396, "Mst. Naziran v. Saifal and others" 1998 PCr.LJ 1689, and "Fazal-eHaq v. The State", 2015 PCr.LJ 189 Lahore. 17. Mian Abdul Rauf, learned Advocate General, has urged that the murder reference be answered in the affirmative and has, therefore, argued that; the occurrence is admitted; it is also admitted that the place of occurrence is the roof of the property owned by Muhammad Abbassi; the motive is also admitted i,e, the deceased having killed the brother and nephew of Muhammad Abbassi; Muhammad Abbassi raised the plea of self-defense and, therefore, the onus was on him to prove his version; the prosecution had established its case beyond a reasonable doubt, while Muhammad Abbassi neither got himself examined under section 340(2) of Cr.P.C. By making a statement on Oath nor produced any evidence in support of his version; the evidentiary obligation is provided in Articles 70 and 71 of the Qanun-e-Shahadat Order, 1984; Muhammad Abbassi failed to substantiate the defense taken by him; the onus or burden of proving that the…
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