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Petitioner: ABDUL MAJID alias FAUJI and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Raja Muhammad Sabir, Ch. Muhammad Nasim Title: ABDUL MAJID alias FAUJI and others vs THE STATE Case No.: Criminal Appeal No,163 of 1994 Date of Judgment:1998-02-24 Reported As: 1998 P Cr. L J 1914 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' MUHAMMAD NASEEM CHAUDHRI, J.--- This appeal is directed against judgment, dated 15-8-1993 whereby the learned Judge, Special Court No,V, Lahore constituted under the Suppression of Terrorists Activities (Special Courts) Act, 1975 convicted and sentenced Abdul Majeed alias Fauji son of Hassan Din, Caste Rajput, resident of village Bhaseen, District Lahore and Hafiz Sultan Ahmad appellant son of Muhammad Siddique Caste Kamboh, resident of village Wasmian, District Lahore to suffer death penalty each and to fine of Rs,50,000 each or in default of its payment to undergo R.I. For a period of two years each on two counts under section 302/149, Pakistan Penal Code, to rigorous imprisonment for a period of seven years each and to fine of Rs,20,000 each or in default of its payment to rigorous imprisonment for a period of one year each on each count of making the murderous assault on Haji Muhammad Akram Butt P.W.3, Muhammad Hussain P.W.4 and Manzoor Hussain P.W.5 under section 324/149, Pakistan Penal Code and to rigorous imprisonment for a period of one year each and to fine of Rs,2,000 each or in default of its payment to further undergo R.I. For three months under section 148, Pakistan Penal Code. 2. The co-accused namely Karamat Ali, Liaquat Ali and Muhammad Ashfaq tried in absentia were also convicted and sentenced exactly as narrated above under the aforesaid sections of Pakistan Penal Code. 3. An occurrence took place on 6-9-1991 at 7-45 p.m. On Pacca road on the bank of B.R.B. Canal, Lahore near Kashmir High School Mohallah Takki Mauza Bhaseen wherein Niamat Ali and Muhammad Jamil were murdered while Haji Muhammad Akram Butt, M.P.A. Complainant P.W.3, Muhammad Hussain P.W.4, Manzoor Ahmad P.W.5, Wilayat Ali P.W. (given up) and a passerby Musthaq Masih P.W. (given up) were seriously injured when Karamat Ali accused was injured at the
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hands of Muhammad Akram Butt complainant P.W.4 who claimed the exercise of right of private defence in the matter. Abdul Majeed alias Fauji and Hafiz Sultan Ahmatt appellants were arrested who after full-fledged trial were convicted on 15-8-1993 as narrated above while Karamat Ali, Liaquat Ali and Muhammad Ashfaq were tried in absentia who, as required by law, were provided the legal assistance. 4. Both the aforesaid convicts Abdul Majeed alias Fauji and Hafiz Sultan Ahmad who faced and defended the trial in person have preferred this Criminal Appeal No,163 of 1994 which is being disposed of through this judgment. 5. The facts giving rise to this appeal are narrated in complaint Exh.P.D. Recorded by Atif Hayat Inspector/S.H.O. Police Station Batapur, Lahore (P.W.15) at Ashraf Filling Station/Petrol Pump at 8-05 p.m. At the instance of Muhammad Akram Butt complainant the then M.P.A. (P.W.3). It is contained in Exh.P.D. That after attending the Prize Distribution Ceremony in Government High School, Attukay Awan on Pakistan Defence Day on 6-9-1991 he was returning at 7-45 p.m. To his village Bhaseen, Batapur, Lahore in the company of Niamat Ali and Muhammad Jamil (both deceased of this case) as well as Muhammad Hussain P.W.4, Manzoor Ahmad P.W.5 and Wilayat Ali P.W. (given up) while they were in Mitsubishi wagon. From Jallo Morr, they reached Pacca road on the bank of B.R.B. Canal near Kashmir High School, Mohallah Talcki, Mauza Bhaseen. One Suzuki Car No,LHR-3627 and another car having the No,LET-8422 followed them. From his Mitsubishi wagon he turned back and saw the cars. A burst of klashnikov was fired at his wagon which punctured the rear tyre. He and his companions identified the inmates of both the cars in the light of the vehicles. They were Abdul Majeed alias Fauji and Hafiz Sultan Ahmad appellants each armed with klashnikov as well as Liaquat Ali, Muhammad Ashfaq, Karamat Ali and two unknown persons each armed with mousers. The assailants alighted and made the reckless firing with the fire-arm weapons upon him and his companions. Muhammad Jameel and Niamat Ali occupying the front seat of the wagon were injured who expired there and then. He (complainant P.W.3) as well as Muhammad Hussain P.W.4, Manzoor Ahmad P.W.5, Wilayat Ali P.W. (given up) and one passerby Mushtaq Masih P.W. (given up) were seriously injured. He (complainant P.W.3) fired with his 16 m. Licensed rifle in the exercise of right of private defence which hit Karamat Ali accused who was injured. The firing attracted his brother Karamat Ali P.W.6, his brother Yasin P.W. (not produced) and his nephew (not named and not produced) who also saw the occurrence. The cause of the occurrence is stated to be the previous enmity based on murders with Abdul Majeed alias Fauji and others due to which the aforesaid assailants alongwith two unknown persons in prosecution of common object effected the firing to murder them. He had left the dead bodies of Muhammad Jameel and Niamat Ali under the custody of Muhammad Ashraf son of Niamat and Malik Farmaish Ali son of Abdur Rahim. He was being taken to Mayo Hospital for treatment by his brother Karamat Ali P.W.6. He requested the Police for taking the legal action. 6. Atif Hayat, Inspector/S.11.0. Police Station Batapur sent complaint Exh.P.D. To Police Station Batapur through Amjad Ali, Constable where Muhammad Riaz Moharrir/H.C. P.W.17 prepared formal F.I.R. Exh.P.D./1. 7.. Karamat Ali P.W.6 handed over the injured persons to his younger brother Shaukat Butt and accompanied Atif Hayat, Inspector/S.H.O. Police Station Batapur, Lahore (P.W.15) to the place of occurrence. The Inspector/S.H.O. (P.W.15) took into possession the dead bodies of Niamat Ali and Muhammad Jameel deceased persons. He prepared the respective injury statements and the respective inquest reports pertaining to each deceased and sent the dead bodies for post- mortem examination under the escort of Sultan Ahmad, Constable P.W.10 who after the post- mortem examination delivered the last-worn blood-stained clothes P.1 and P.2 of Muhammad Jameel* deceased vide memo. Exh.P.A. Before the S.H.O. And last-worn blood-stained clothes P.3 and P.4 of Niamat Ali deceased vide memo. Exh.P.B. Before the S.H.O. Attested by Tahir Hussain, A.S.-
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I. The S.H.O. Prepared the spot inspection note after making inspection of the place of the occurrence who also prepared rough site plan Exh.P.P. Of the place of occurrence. He took into possession blood-stained pieces of glass from inside Mitsubishi wagon where Niamat Ali deceased and Muhammad Jameel deceased were lying murdered which he sealed in two different parcels. He prepared memo. Of recovery Exh.P.E. He took into possession seven empties P.7/1-7 from inside Mitsubishi wagon from where the firing was effected by Muhammad Akram complainant P.W.3. Memo. Exh.P.F. Was prepared. The empties P.5/1-104 of klashnikov and empties P.6/1-6 of mouser were taken into possession from inside Suzuki Car No,LHR/3627 and from outside of the same which were sealed in two different parcels when memo. Exh.P.G. Was prepared. Mitsubishi wagon P.9 without number plate containing seven entry holes and three broken glasses were taken into possession vide memo. Exh.P.D. Suzuki Car No,LHR/3627 said to have been used during the occurrence by the assailants having the sign of entry hole was taken into possession vide memo. Exh.P.C./1. Karamat Ali P.W.6 and Muhammad Yasin P.W. (given up) attested the aforesaid memos. Atif Hayat, S.H.O. P.W.15 submitted application Exh.P.Q. Before the Medical Officer as to whether Muhammad Hussain injured P.W.4 was fit to Snake the statement and application Exh.P.S. Pertaining to Wilayat Ali injured P.W. (given up) and the Medical Officer gave his report Exh.P.Q./1 and Exh.P.S./1 in his presence in the positive about each injured. He submitted application Exh.P.R. And application Exh.P.T. Pertaining to Manzoor Ahmad injured P.W.5 and Karamat Ali injured accused about their condition to make the statement and the Medical Officer gave his report in the negative that both of them were not fit to make the statement. At the request of the S.H.O. And pointedness of the P.Ws. Younas Ali Shah, Draftsman P.W.7 prepared site plans Exh.P.H. And Exh.P.H./1 containing his notes and drawings in blank ink and that of the S.H.O. In red ink. 8. The aforesaid sealed parcels were handed over by Atif Hayat, S.H.O. P.W.15 to Muhammad Riaz Moharrir H.C. P.W.17 on 6-9-1991 who handed over the parcels containing the blood-stained pieces of glass on 12-9-1991 to Sultan Ahmad, Constable P.W.10 which he delivered in the office of the Chemical Examiner, Lahore. The parcels containing the empties were handed over by the S.H.O. To Muhammad Riaz, Moharrir H.C. P.W.17 on 6-9-1991 who delivered the same on 23-9-1991 to Sultan Ahmad, Constable P.W.10 which he delivered in the office of the Forensic Science Laboratory, Lahore. 9. Abdul Majeed alias Fauji appellant was arrested on 21-9-1991 by Muhammad Inayat Ullah, S.-I. P.W.13 from the house of his brother-in-law Muhammad Alam situated in village Kakkar as the said S.-I. Was in possession of warrant of arrest handed over to him by the S.H.O. On 17-10-1991 Karamat Ali absconder-accused was arrested from Services Hospital, Lahore by Muhammad Inayat Ullah, S.-I. P.W.11 where he was under treatment as he was injured during the occurrence at the hands of Muhammad Akram complainant P.W.3. However, Karamat Ali appellant later on fled away and became fugitive of law. 10. On 27-9-1992 while under Police arrest Abdul Majeed alias Fauji appellant led to the recovery of klashnikov P.5, three magazines P.6/1-3 and eight live cartridges P.7/1-8 from the bank of B.R.B. Canal, Lahore underneath the bushes after digging the earth which was taken into possession by Atif Hayat, Inspector/S.H.O. Vide memo. Exh.P.C. Attested by Tahir Hussain, A.S.-I. P.W.2 and Muhammad Sarwar, Constable P.W. (given up). He sealed the aforesaid fire-arms in a parcel which he handed over to Muhammad Riaz, Moharrir H.C. P.W.17 on the aforesaid date and the same was handed over by him to Sultan Ahmad, Constable P.W.10 on 12-10-1991 which he delivered in the office of the Director, Forensic Science Laboratory, Lahore. From the office of the Chemical Examiner, Lahore reports Exh.P.NN. And Exh.P.00. About the blood-stained pieces of glass and reports Exh.P.LL. And Exh.P.MM. From the office of the Serologist were received that the pieces of glass were stained with human blood. The report Exh.P.KK. Of the Technical Services was also received making out that the klashnikov empties were fired from the klashnikov got recovered by
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Abdul Majeed alias Fauji. Thus, this report was positive. Ahmad Din, A.S.-I. P.W.1 was handed over the summons for the service of Karamat Ali, Liaquat Ali and Muhammad Ashfaq absconding accused which remained unserved. 11. Atif Hayat, Inspector/S.H.O. P.W.15 took into his possession Toyota Corolla Car No,LET-8422 P.10 owned by Hafiz Sultan Ahmad appellant on 6-11-1991 vide memo. Exh.P.Y. Attested by Shaukat Ali P.W.18. 12. On 6-9-1991 Dr. Aziz-ul-Islam, Casualty Medical Officer, Mayo Hospital, Lahore medically examined Muhammad Akram complainant injured P.W.3, Muhammad Hussain injured P.W.4, Mansoor Ahmad injured P.W.5 and Wilayat injured P.W. (given up). He issued the medico-legal reports about the aforesaid injured. 13. On 8-9-1991 Dr. Muhammad Khalid P.W.11 conducted the postmortem examination on the dead body of Muhammad Jameel aged 35 years who was identified by his brother Muhammad Khaleel P.W.9. This medical witness found ten injuries on the person of the deceased. It is proper to express that two injuries are numbered as 1.A and 1.B. He expressed that the injuries were ante-mortem caused by fire-arms and that the cause of death was damage to the vital blood vessels. He issued carbon copy Exh.P.J. Of the post-mortem report. 14. Dr. Mahfooz Ahmad P.W.12 conducted the post-mortem examination on the dead body of Niamat Ali aged 60 years identified by his son Muhammad Ashraf P.W.B. This medical witness found 13 injuries with fire-arms on the person of this deceased. According to him the cause of death was injuries to the vital organs in the thorax and abdomen alongwith the blood vessels. He issued carbon copy Exh.P.K. Of the post-mortem report and the carbon copy Exh.P.K./1 of the diagram showing the location of the injuries. 15. Jamat Ali, Inspector S.H.O. Police Station Batapur, Lahore (P.W.19) arrested Hafiz Sultan Ahmad appellant on 9-9-1992 from a garden of Banasan Wala carrying a klashnikov which he took into his possession and got registered a case under section 13 of the Arms Ordinance against him. He joined him as the accused of this case. 16. After completion of the investigation the challan was submitted before the Trial Court. Both Abdul Majeed alias Fauji and Hafiz Sultan Ahmad appellants were charged under sections 302, 324, 148/149, Pakistan Penal Code who did not plead guilty and claimed to be tried. At the trial the aforesaid P.Ws. Stood in the witness-box and supported the prosecution case. 17. Safdar Ali, Constable P.W.14 was handed over the summons Exh.P.W.14/A for the service of Dr. Aziz-ul-Islam. The Deputy Medical Superintendent made the report that he remained on leave and thereafter did not join whose whereabouts were not known. Safdar Ali, Constable P.W.14 made his report Exh.P.W.14/B that the whereabouts of Dr. Aziz-ul-Islam were not known. On that the prosecution was allowed to produce the secondary evidence. Muhammad Hussain Record-keeper Mayo Hospital, Lahore P.W.16 claimed to be aware of the handwriting and the signatures of the aforesaid Dr. Aziz-ulIslam P.W. He proved medico-legal report Exh.P.FF. Pertaining to Manzoor Ahmad injured P.W.5, medico-legal report 'Exh.P.GG. With respect to Muhammad Akram injured P.W.3, medico-legal report Exh.P.HH. Pertaining to Wilayat Ali P.W. (given up) and medico-legal report Exh.P.JJ. About Muhammad Hussain injured P.W.4. According to him the aforesaid medico- legal reports were in the hand of Dr. Aziz-ul-Islam which was signed by him. He was not cross- examined. 18. Both the appellants were examined under section 342 of the Code of Criminal Procedure who deposed about their non-participation in the occurrence. They took up the stand that they were falsely involved as there was longstanding enmity and pendency of criminal cases between the parties. Abdul Majeed alias Fauji refuted the recovery of klashnikov P.5 who did not claim the same. They did not choose to appear on oath in their own respective defence under section 340(2) of the Code of Criminal Procedure.
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19. Muhammad Rasheed D.W.1, Motor Taxation Clerk posted in the office of the Excise and Taxation Department Farid Kot House, Lahore stated that according to the record of his office Mitsubishi station wagon was imported by Mrs. Iffat Begum of Gawal Mandi, Lahore which was subsequenthy transferred to Sh. Amir-ud-Din resident of Shah Almi Gate, Lahore on 7-10-1991 and that Mitsubishi wagon was allotted registration No,LOG-8887 on 7-10-1991 on the application of Sh. Amir-ud-Din. Ghaffar Ahmad, Constable Police Station Faisal Town, Lahore proved copy of F.I.R. No,51, dated 6-3- 1993 registered at Police Station Faisal Town, Lahore. Sultan Ahmad appellant tendered in evidence documents Exh.D.E. To Exh.D.L as well as Mark "B" to establish the adverse record maintained by the police pertaining to the complainant and other eye-witnesses and the pendency of the criminal litigation. Abdul Majeed alias Fauji produced in evidence documents Exh.D.M. To Exh.D.P. Which are the copies of different F.I.Rs, 20. After hearing the parties the Trial Court gave the weight to the motive, ocular account, recoveries from the place of occurrence, recovery of klashnikov P.5 and the medical evidence. Holding that the prosecution has connected Abdui Majeed alias Fauji and Hafiz Sultan Ahmad appellants with the charge framed against them the Trial Court convicted both of them on 15-8- 1993 as narrated above. They have preferred this Criminal Appeal No,163 of 1994 which has been resisted by the State. 21. The case of the prosecution rests on:-- (i) Motive. (ii) Ocular evidence. (iii) Recovery of blood-stained pieces of glass coupled with reports of the Chemical Examiner and the Serologist and the recovery of Suzuki Car. (iv) Recovery of klashnikov empties P.1/1-4 from the spot on 6-9-1991 alongwith recovery of klashnikov P.5, three magazines P.6/1-3 and 8 bullets P.7/1-8 coupled with the positive report of Exh.P.KK. Of the Technical Services, Lahore. 22. We have heard the learned counsel for the parties and the learned State Counsel as well as gone through the record prepared and maintained by the learned Trial Court. The first contention of the learned counsel for the appellants is that there is long-standing enmity between the parties and that due to that the appellants have been falsely roped in. He maintained that the occurrence took place when there was darkness and that since the original assailants were not known to the complainant and the eye-witnesses they have fictitiously named the appellants to wreck the vengeance on the basis of the criminal litigation. He also referred to the previous record of the eye- witnesses mentioned in Exh.D.E. Pertaining to Muhammad Akram complainant P.W.3, his brother Shaukat Ali P.W.18 and Karamat Ali P.W.6 and maintained that the complainant party was locked in litigation with other persons as well and that they were also involved in different cases of smuggling. He made up the arguments that in such a state of affairs the false involvement of the appellants cannot be ruled out. We, however, do not agree with him. As rightly pointed out by the learned counsel for the State it is not a case of substitution as this plea was neither raised during the investigation nor during the trial. In this sensational and gruesome occurrence it cannot be expected that the complainant party would let off the real assailants so as to falsely, rope in the appellants on the basis of the admitted previous litigation. The taking into possession from the place of occurrence the Suzuki car P.8 bearing No,LHR-3627 containing the bullet hole owned by Abdul Majeed alias Fauji appellant by the Investigating Officer on his first visit is a strong material and circumstance to repel this assertion of the learned counsel for the appellants. The material produced by the parties has conspicuously established that the parties were locked in criminal litigation since long. The aforesaid canvassing made by the learned counsel for the appellants that the motive is a double-edged weapon and the chance of their false involvement cannot be ruled
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out has failed to impress us in the circumstances of the matter and we hold that the motive which stands admitted and established shall play the legal role against' the appellants. 23. With respect to the ocular evidence the contentions of the learned counsel for the appellants are that the same comprises the statements of the interested and inimical witnesses and that some of them were related inter se and that these aspects of the matter have eclipsed the weight of their statements. It was added that even though the occurrence took place on the Canal Bank near Mohallah Takki of village Bhaseen no independent person has been made to stand in the witness-box. In this regard specific mention was made to Mushtaq Masih injured P.W. Who was a passerby and was given up even though he was a Christian by his religion and was an independent witness. On the contrary learned State Counsel has laid the emphasis that Muhammad Akram complainant P.W.3, Muhammad Hussain P.W.4 and Manzoor Ahmad P.W.5 were injured during the occurrence whose presence at the spot cannot be ruled out and that the non- appearance of Mushtaq Masih is not fatal to the prosecution case especially when he was not brought in defence by the accused persons. Our view is that the reasoning adopted by the learned counsel for the appellants has no legal force and that the Trial Court has rightly placed the reliance on the statements of the eye-witnesses. Only Karamat Ali P.W.6 was not injured during the occurrence as he was attracted at the spot on hearing the fire shots. The remaining three eyewitnesses namely Muhammad Akram P.W.3, Muhammad Hussain P.W.4 and Manzoor Ahmad P.W.5 were injured at the spot during the occurrence which aspect of the matter has cemented their presence during the occurrence. The fact that the P.Ws. Were inimical towards the accused persons due to previous litigation has not to affect the prosecution case especially when they were travelling in the cars alongwith the complainant who was arriving after attending a Prize Distribution Ceremony in a school due to Defence Day of Pakistan on 6-9-1991. The said manner of occurrence has enhanced the value of the statements of the injured witnesses. The non- appearance of any witness from the public is not fatal to the prosecution case on the grounds first that the occurrence did not take place in a Mohallah or in a street which took place on the Pacca road constructed on Bank of B.R.B. Canal. Secondly, the general C public always avoid and show the apathy towards becoming of the eye-witnesses in such cases of long-standing enmity between the influential persons in the area. During these days the public has to save its own skin as well by not meddling and entering into such affairs and disputes of others. It is a matter of common knowledge that in cases of such nature the independent persons from the public do not take the courage to step-forward to make the deposition as the eyewitnesses. The public rather avoid from becoming the witnesses of recovery etc. Etc. As such the said assertion raised by the learned counsel for the appellants has no legal force which is ignored. 24. Learned counsel for the appellants argued that the occurrence took place at 7-45 p.m. On 6-9- 1991 when there was darkness, that the assailants could not be recognized in the light of the cars and that the chance of error with respect to the identification of the assailants by the P.Ws. Who were in the vehicles ahead of the assailants could not be ruled out. 25. On the contrary it was argued by the learned State Counsel and the counsel for the complainant that the firing was effected by the assailants from the cars as well as from the outside of the same as the empties P.5/1-104 and empties P.6/1-6 were taken into possession vide memo. Exh.P.G. From inside Suzuki Car No,LHR-3627 as well as from the outer place of the same. They maintained that even according to complaint Exh.P.D. The assailants are alleged to have alighted from the cars who were known to the complainant party due to the previous litigation and whose car numbers must be within their knowledge. They expressed that the assertion raised by the learned counsel for the appellants in view of the aforesaid factual position has no legal force. We are of the view that the reasoning adopted by the learned counsel for the appellants need not be given the weight in the light of the assertions made by the learned Advocate for the adverse party
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and the learned State Counsel. It is specifically mentioned in complaint Exh.P.D. On the basis of which F.I.R. Exh.P.D./1 was drafted that on their arrival at the spot in two cars the assailants named therein including Abdul Majeed alias Fauji and Hafiz Sultan Ahmad appellants alighted from the cars. The car(s) of the nears and dears and the car(s) of the antagonists can well be identified by the concerned party in no time and this is the reason that the number of both the cars are specifically mentioned in the complaint Exh.P.D. These cars were owned by the appellants. In view of the long enmity it cannot be expected that the owners of the car would give the same to any other person to use the same for some illegal and criminal purpose. The fact that Karamat Ali was injured at the hands of Muhammad Akram complainant P.W.3 during the occurrence who later on remained admitted in Services Hospital, Multan has made us to hold that the assailants were visible to the complainant party. Had no body from the assailants been injured the factual position would have been different. In view of the time of occurrence i,e, 7-45 p.m. It can be expressed that without the head lights the cars of both the parties could not be driven. The fact that empties P.5/1- 104 of klashnikov and empties P.6/1-6 of mouser were taken into possession from inside and outside of Suzuki Car No,LHR-2627 is enough to make out that the assailants came out of the car to participate in the occurrence and they could be…
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