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Petitioner: MUHAMMAD ILYAS VS Respondent: StateHonorable Justice Ijaz Ahmad ChaudhryMunir Ahmad Bhatti
2007 Y L R 2296
[Lahore]
Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ
MUHAMMAD ILYAS and another---Appellants
Versus
THE STATE---Respondent
Criminal Appeals Nos.336 and 516 of 2002 and Murder Reference No.248 of 2002, heard on 31st January, 2007.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b)/34---Appreciation of evidence---Post-mortem examination of dead bodies was conducted on the next day of the occurrence---Such delayed post-mortem examination had cast doubt on the prosecution story about the registration of F.I.R. with promptitude---Possibility of registration of F.I.R. after consultation and deliberation while making preliminary investigation, could not be ruled out---Such an F.I.R. could not be used as corroborative piece of evidence to the ocular account---All three witnesses were closely related inter se and with the deceased---Previous enmity between the parties also existed and eye-witnesses could be termed as interested witnesses, whose statements could not be believed, unless those were corroborated by some independent piece of evidence on the record---Possibility of consultation and deliberation before getting registered the case, could not be ruled out-- Three eye-witnesses who were closely related inter se and with deceased, were not found truthful---Incident had taken place in a thickly populated area, where number of houses were situated, but none of the persons from 'said houses had come out and witnessed the incident- 'Medical evidence did not fully support ocular account---Eye witnesses appeared to be tutored and they had not spoken the whole truth--Independent witnesses had not been produced before the police during investigation to support the prosecution story---F.I.R. was not got registered with promptitude and the story of prosecution, had been concocted to implicate all the family members of accused---Ocular account furnished by alleged eye-witnesses was not worthy of reliance and same could not be relied upon for recording conviction and sentence in a case entailing capital sentence---Empties though had allegedly been recovered from the spot, but the kind of the weapons of the empties were neither mentioned in the recovery memo. nor in the inspection note---House .from where pistol had allegedly been recovered was not exclusively in possession of accused as other family members were also residing there---Recovery had been witnessed by the police officials only and respectables .from the vicinity were not joined in recovery proceedings---Empties were not sent after one month to office of Forensic Science Laboratory---Positive report of Forensic. Science Laboratory, in circumstances was not worthy of reliance and it did not provide any corroboration to the prosecution story---Defence plea raised by accused was neither in conformity with the medical evidence nor was borne out from the circumstances---Both parties had not come up with the true version of the occurrence---Case, however appeared to be a case of target killing in which son and father were killed at two different places while making reckless ,firing at them---Accused could not prove that he had acted in exercise of his self-defence---Incident was a broad daylight occurrence in thickly populated area and it could not have gone unwitnessed---Circumstances of the case and medical evidence, had frilly established that it was a case of intentional murders committed by accused in a brutal manner---Previous enmity existed between parties---In the absence of any mitigating circumstance, conviction and sentence awarded to accused by the Trial Court was maintained.
Syed Ali Beopri's case PLD 1962 SC 502 ref.
(b) Penal Code (XLV of 1860)---
----Ss. 302 (b)/34---Appreciation of evidence---Benefit of doubt---Prosecution story had been disbelieved and no circumstances were on record to suggest that co-accused had participated in the occurrence---Impugned conviction and sentence of co-accused recorded by the Trial Court through the impugned judgment, was set aside and he was acquitted by extending him benefit of doubt and he was ordered to be released---Murder reference to the extent of 'co-accused was replied in the negative and death sentence awarded to him by the Trial Court, was not confirmed, but to the extent of accused Murder Reference was replied in . the affirmative and death sentence on two counts awarded to accused by the Trial Court, was confirmed.
Munir Ahmad Bhatti for Appellants (inCriminal Appeal No.336 of 2002).
Rana Muhammad Arshad Khan for Appellants (in Criminal Appeal No.516 of 2002) .
Ch. Muhammad Hussain Chhachar, Additional Prosecutor General on behalf of the State.
Date of . hearing: 31st January, 2007.
JUDGMENT
IJAZ AHMAD CHAUDHRY, J.--Muhammad Ilyas and Muhammad Abbas appellants were convicted for an offence under section 302(b)/34, P.P.C., vide judgment dated 28-2-2002 rendered by the learned Additional Sessions Judge, Kasur for committing 'Qatl-i-Amd' of Muhammad Jafar deceased and were sentenced to death with direction to pay a sum of Rs.50,000 each to the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to further undergo six months R.I. each. Muhammad Ryas appellant was further convicted under section 302(b), P.P.C. and was sentenced to death for committing 'Qatl-i-Amd' of Allah Ditta deceased and was sentence to death with direction to pay a sum of Rs.50,000 to the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to further undergo six months R.I. However, through the same judgment, co-accused namely Muhammad Mushtaq, Muhammad Salim, Tahir Ijaz, Faqeer-ud-Din and Master Ahmad Din were acquitted of the charges by the learned trial Court while extended benefit of doubt to them. Both, Muhammad Ilyas and Muhammad Abbas appellants have challenged their convictions and sentences before this Court through Criminal Appeal No.336 of 2002 while Criminal Appeal No.516 of 2002, has been filed by Muhammad Arshad complainant against the acquittal of Muhammad Mushtaq, Muhammad Salim, Tahir Ijaz, Faqeer ud-Din and Master Ahmad Din, and both these matters have been heard by us along with Murder Reference No.248 of 2002 sent by the learned trial Court under section 374, Cr.P.C. seeking confirmation of the sentences of death passed by the learned trial Court against Muhammad Ilyas and Muhammad Abbas appellants. We propose to decide all these matters jointly through the present consolidated judgment.
2. Concisely the facts of the prosecution's case unfolded in the F.I.R. (Exh.P.3) got lodged by Muhammad Arshad complainant (P.W.10) are that on 26-9-1998 at 11-00 a.m. the complainant along with Mahboob Alam and Muhammad Akram (P.W.9) was sitting outside his residential house. Muhammad Jafar (deceased) was going towards his field. When he reached near the house of Mahboob Alam, Muhammad Ilyas appellant, Muhammad Salim (acquitted accused) armed with mousers and Abbas appellant armed with rifle, came out from the shelter of a wall. Muhammad Salim (acquitted accused) raised a 'lalkara' that they would kill Muhammad Jafar (deceased) and simultaneously made fire hitting Muhammad Jafar (deceased) under his left eye. Ryas appellant made fire hitting on his right check. Abbas appellant fired with his rifle hitting on his left . breast. Jafar (deceased) became injured and fell down on the ground. The above said persons made fires on the different parts of body of Jaffar (deceased) in a fallen position. When Jafar died and upon raising hue and cry by them, Abbas appellant and Salim (acquitted accused) ran away towards the fields by making firing. Muhammad Ilyas appellant stepped towards them. They hide themselves and ran towards the house. On the shop of Master Din Muhammad, Tahir Ijaz alias Lala (acquitted accused) armed with mousers, Muslitaq and -Master Din Muhammad (acquitted accused) armed with rifles were sitting. Ilyas appellant went there and shouted that they had killed Jafar (deceased). Allah Ditta (deceased) his wife Mst. Hamidan Bibi and his daughter Mst. Manzooran Bibi (P.W.8) were also present at the saw machine to get their wood sawed. Master Din Muhammad (acquitted accused) raised- a 'lalkara' that his father Allah Ditta (deceased) should also be killed and he simultaneously made fire upon Allah Ditta (deceased), hitting him on right side of front of his neck. Tahir Ijaz (acquitted accused) made fire hitting Allah Ditta (decease) on right side of his back. Muhammad Ilyas appellant made fire hitting Allah Ditta (deceased) on his shoulder. Mushtaq (acquitted accused) made fire which hit on the nose of Allah Ditta (deceased). Allah Ditta died at the spot.
3. The motive behind the occurrence was alleged to be that brother of Muhammad Ilyas appellant was murdered at Railway Station, Kot Lakhpat three year back and case for his murder was lodged against Sadiq etc., sons of Allah Ditta (deceased). Aggrieved by it, the above-said accused have murdered Jafar (deceased) and his father Allah Ditta (deceased) and they have murdered them on the instigation/abetment of Faqeer-ud-Din (acquitted accused).
4. The investigation of this case was conducted by Badar Munir, S.I. (P. W.12) and during the investigation, the dead bodies of both the deceased were inspected, injury statements and inquest reports were prepared, statements of the witnesses under section 161, Cr.P.C. were recorded, the places of occurrences were inspected, blood-stained earths were secured, rough site-plans of the places of occurrence were prepared, the dead bodies were sent to the mortuary for autopsy, the last-worn clothes of both the deceased were received, formal site-plans of the place of occurrence were got prepared, the appellants and the acquitted accused were arrested and recovery of different weapons of offence was effected and after completion of the investigation a challan was submitted in the Court.
5. At the commencement of the that the learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C., to the appellants and the acquitted accused framed a charge under sections 302/34/109, P.P.C. on 28-4-2001 against them, to which they pleaded not guilty and claimed a trial.
6. During the trial the prosecution produced as many as twelve witnesses in support of its case. The ocular account of the incident in' question was furnished by Mst. Manzooran Bibi (P.W.8), Muhammad Akram (P.W.9) and Muhammad Arshad complainant (P.W.10) who also deposed about the motive while P.W.11 Abdul Ghafoor stated about the hatching of conspiracy. P.W.4 Muhammad Rafique, HC on the receipt of written complaint (Exh.22) had drafted the formal F.I.R. (Exh. P.3). Muhammad Nasrullah, Draftsman (P.W.5) on the pointing out of the. P.Ws. and on the instructions of the police had prepared the scaled site-plan. The medical evidence was provided by Dr. Mumtaz Ahmad (P.W.7) who on 27-9-1998 at 9-00 had conducted the post-mortem examination on the dead body of Muhammad Jafar deceased while post mortem examination on the dead body of Allah Ditta deceased was conducted the same day at 11-00 a.m. Badar Munir, S.-I. (P.W.12) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
7. In their statements recorded under section 342, Cr.P.C., the appellants and the acquitted accused had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. However, to a question that "Then why this case has been lodged against you and why the P.Ws. have deposed against you?" Muhammad Ilyas appellant replied in the following terms:--
"The P.Ws. are related inter se, and inimical to me. The prosecution story is false and concocted one. I have been involved because the complainant party is inimical towards me. My all the brothers Muhammad Abbas and Mushtaq along with my first cousin and my old uncle (Taya) Master Din Muhammad, have been involved in this false case. Before the said alleged concocted occurrence, the complainant party murdered my brother in which Arshad complainant of this case, and the others were the accused persons and we were pursuing that case. My whole family has been involved, in this case. I am innocent. The actual facts are that on the fateful day, I was coming from my field to the village when on the way Jafar slain caught hold of me from the neck and took out his mouser to murder me. I grappled with him and tried to snatch the pistol which went off and hit Jafar and I succeeded in snatching the pistol. I tried to ran away but Jafar grapped with me and tried to snatch the pistol so seeing the imminent danger to my life, I fired at Jafar and ran away from the spot. The P.Ws. were not present. I went towards other end of the street where Allah Ditta, the father of Jafar slain was standing having mouser in his hand. He fired at me. I escaped and seeing imminent danger to my life, I fired at Allah Ditta also and snatched the pistol from Allah Ditta and made the fire at him. I threw his pistol on the spot and escaped to save my life. No P.W. was present at the spot. All the other accused were not present at the spot and after consultation and in connivance with police a false story has been concocted against us. I alone fired at the slams in my self-defence and in order to save my life in imminent danger to my life. The recovery has been planted upon me, and I was acquitted from that case.
In reply to the aforesaid question, co-accused namely, Mushtaq Ahmad Muhammad Abbas, Master Dit Muhammad, Muhammad Salim, Tahir Ija: and Faqeer-ud-Din also professed thei innocence. However, neither the appellant or the acquitted accused had opted to mak statements on oath- under section 340(2) Cr.P.C. nor they produced any evidence in their defence.
8. Upon conclusion of the trial the learned trial Court after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt, they were convicted and sentenced by it as mentioned and detailed above. Hence, the present appeals and the connected Murder Reference before this Court.
9. The learned counsel for the appellants contends that the same evidence of the prosecution has been disbelieved qua the acquitted accused and the same cannot be believed to the extent of the appellants as well for maintaining the conviction; that the learned trial Court had not believed the complainant and Mst. Manzooran Bibi and in such circumstances their statements are not worthy of reliance; that Muhammad Akram (P.W.8) is brother of Muhammad Arshad complainant (P. W.10) who was also inimical witness and his statement cannot be relied upon for maintaining the conviction; that the recovery in the present case from the possession of the appellants was legally inconsequential as the empties were recovered from the spot according to the prosecution on 26-9-1998 and had been sent to the office of Forensic Science Laboratory on 26-10-1998 while the weapons of offence had been recovered from the possession of Muhammad Abbas appellant on 15-10-1998 and the weapon of offence from Muhammad Ilyas appellant was recovered on 11-10-1998 when the empties were still lying at the police station and thus the report of the Forensic Science Laboratory even if positive is of no importance; that the motive had been disbelieved to the extent of the other accused and the same motive could not be believed to the extent of the appellant; that Muhammad Ilyas appellant had raised the plea of self-defence and given true version of the occurrence, which makes out the case of Muhammad Ilyas appellant that of his acquittal as he had exercised his right of self-defence or in alternative it is contended that at the most he is liable to be convicted under section 302(c), P.P.C. and as such his sentence may be reduced; that the prosecution had widened its net and the ocular account was in contradiction with the medical evidence as there were some injuries on the person of Jafar deceased which had blackening and those could only be caused from a close range. It is further contended that according to the defence plea raised by Muhammad Ilyas appellant he alone had committed this occurrence and there being no evidence of unimpeachable character to connect Muhammad Abbas appellant with the alleged crime, he is entitled to be acquitted.
10. On the other hand, learned counsel appearing on behalf of the complainant opposes the appeal on the ground that convictions and sentences awarded to both the appellants namely Muhammad Ilyas and Muhammad Abbas may be maintained and acquitted accused may also be convicted and sentenced as they had also participated in the occurrence; that it was a daylight occurrence which had taken place near the house of the witnesses and Mst. Manzooran Bibi (P.W.8) was also present at the spot and had explained her presence and her statement had been wrongly disbelieved; that she may be believed as opinion of the police has got no evidentiary value and the police was in league with the accused party; that judgment to the extent of acquitted accused in not maintainable Criminal Appeal No.516 of 2002 may also be accepted and the acquitted accused may be convicted.
11. Learned Additional Prosecutor General also opposes Criminal Appeal No.336 of 2002 filed by both the appellants namely Muhammad Ilyas and Muhammad Abbas and also supports Criminal Appeal No.516 of 2002 filed by the complainant for setting aside of the acquittal order of the respondents/accused while adopting the arguments of the learned counsel for the complainant. He also contends that F.I.R. was registered without any delay in which names of the acquitted respondents were duly mentioned; that medical evidence supported the prosecution story and recovery of weapons had been effected from both the appellants and it was mala fide of the police that it did not recover the weapons of offence from the acquittal respondents being in league with them.
12. We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution.
13. The incident in the present case according to the prosecution had taken place at 11.-00 a.m. in front of the house of Mahboob Alam situated within the area of Mauza Meer Muhammad, 5 kin away towards North from Police Station Raja Jang District Kasur. According to the prosecution written application (Exh.P,.22) had been produced by the Muhammad . Arshad complainant (P.W.10) at Bus Stop Meer Muhammad Kasur Road at 12-00 noon on the basis of which formal F.I.R. (Exh.P.3) was recorded at 12-20 noon. Registration of the. F.I.R in the same manner and with such promptitude could not be proved on the record as according to Mst. Manzooran Bibi (P.W.8) the complainant remained present at the spot after the incident, when the police came at the spot and recorded the statement of Muhammad Arshad complainant along with other witnesses., In his statement before the police Muhammad Akram (P.W.9) who is brother of the complainant (Exh.P.3) it is found mentioned that after the incident the police after some time on receiving the information had reached at the spot and inspected the place of occurrence. It is not found mentioned that the complainant had gone to- lodge the F.I.R. and then returned accompanied by the police. Even otherwise, the incident had taken place on 26-9-1998 and according to the police Constable namely Zulfiqar Ali (P.W.2), who had taken the dead body to the mortuary for autopsy from the spot, the dead body had reached the hospital at 4-30 p.m. and the doctor met them, but the post-mortem examination had been conducted on the next day. P. W .3 Rashid Ahmad Constable the other witness of taking the dead body of the deceased to hospital also claimed that the dead body was sent to the hospital at 6-00 p.m. If the dead bodies had reached hospital on the same time given by the P.Ws. and doctor was also available as per statement of P.W.2 Zulfiqar Ali Constable, then why the post-mortem examination on the dead body of Jafar deceased had been conducted at 9-00 a.m. and on the dead body of Allah Ditta deceased at 11-00 a.m. on the next day for which no reason had come on the record. The delayed post-mortem examination on the dead bodies of the deceased also casts doubt in the prosecution story about the registration of the F.I.R. with promptitude. The possibility of registration of the F.I.R. after consultation and due deliberation while making preliminary investigation cannot be ruled out. Hence, such an F.I.R. cannot be used as a corroborative piece of evidence to the ocular account and the prosecution evidence has to be seen with utmost care and caution.
14. As per prosecution story, in the present case two incidents had taken place in the same vicinity. Both the places were at a distance of about 1000 yards from each other as per statement of Radar Munir, S.I. (P. W,12). To prove the ocular account the prosecution produced Muhammad Arshad complainant (P.W.10), who had allegedly seen both the incidents while Mst. Manzooran Bibi (P.W.8) was the eye-witness of murder of Allah Ditta deceased and Muhammad Akram (P.W.9) was the eye-witness of the incident wherein Jafar was done to death. P.W.9 Muhammad Akram is brother of Muhammad Arshad complainant (P.W.10) while Mst. Manzooran Bibi (P.W.8) was sister of Muhammad Jafer and daughter of Allah Dicta deceased. Mst. Manzooran Bibi (P.W.8) in her statement admitted that her brother Sadiq was married to the sister of Muhammad Arshad complainant (P.W.10). So all the three eye-witnesses were closely related inter se and with the deceased. It is also admitted fact that Muhammad Akram brother of Muhammad Ilyas and Muhammad Abbas appellants was murdered about 3 years before the incident and in the said murder case Muhammad Arshad complainant (P.W.10) and Muhammad F Sadiq son of Allah Ditta deceased and brother of Muhammad Jafer deceased were accused as well along with others. So previous enmity between the parties also existed and the eye-witnesses can be termed as interested witnesses, whose statements cannot be believed unless those are corroborated by some independent piece of evidence on the record.
15. The motive set up by the prosecution as alleged in the F.I.R. and in the statements got recorded before the police by the eye-witnesses was the previous enmity of murder between the parties. If the incident had taken place for the above-said reason only, then Muhammad Arshad complainant (P.W.10), who was an accused in the murder case of Muhammad Akram brother of Muhammad Ilyas, if was present at the spot, there was no reason for the accused to let him alive as the three accused Muhammad - Ilyas, Muhammad Abbas and Muhammad Saleem while armed with mousers and rifle were alleged to have made firing and there was no impediment in their way to restrain them from causing harm to Muha unad Arshad complainant (P.W.10) and Muhammad Sadiq as well. This fact casts serious doubt about the presence of the complainant at the spot. Even otherwise-, we have found that statement of Muhammad Arshad complainant (P.W.10) is not worthy of reliance as during the cross-examination he stated that application (Exh.P.22) has been drafted by a person, but he was never produced before the police and this fact makes it doubtful that how the application (Exh.P.22) had been prepared for reporting the occurrence. The possibility of consultation and deliberation before getting registered the case cannot be ruled out. C Muhammad Arshad complainant (P.W,10) also cannot be believed as he stated that after the first incident they had gone inside the house to hide themselves and then two accused namely Muhammad Abbas and Muhammad Saleem went to the other side while Muhammad Ilyas had gone to the side where the incident of murder of Allah Ditta deceased had taken place. We have found that there is nothing on the record to show that it was in the knowledge of Muhammad Ilyas 'appellant that Allah Ditta deceased had been sitting in front of the saw machine and how Muhammad Arshad complainant (P.W.10) learnt that Muhammad Ilyas appellant had gone to commit the murder of Allah Ditta deceased as no alarm had been raised by him at the time of murder incident of Jafer deceased that they had any intention to commit the murder of Allah Ditta deceased as well. The three eye-witnesses are also not found truthful as it has been admitted by the eye-witnesses that houses i.e. places of occurrence of both murders were at the path which was being used by the whole village and people before D the incident had been passing from the said path. It is admitted fact that the incident had taken place in a thickly populated area and number of houses were situated…
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