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Petitioner: MUHAMMAD ASHRAF VS Respondent: THE STATE
P L D 1976 Lahore 121
P L D 1976 Lahore 121
Before Javid Iqbal and Abdul Jabbar Khan, JJ
MUHAMMAD ASHRAF-Appellant
versus
The STATE-Respondent
Criminal Appeal No. 415 of 1973 and Murder Reference No. 103 of 1973, decided on 9th January 1975.
(a) Evidence-
-- Foot-prints-Evidence of foot-track-Considered a weak type of evidence-Foot-prints of accused arrested after considerable time, not likely to be remembered by trackers-Foot-track evidence suffering from infirmities and improbabilities-Held, can hardly inspire con fidence.-[Expert evidence].
Ranga Singh and another v. Emperor 96 I C 1926 Lab. 498 ; Ganesh Gogoi and another v. State A I R 1955 Assam 51; Balija Pullayya v. Crown A I R 1941 Mad. 88; Saleh v. Emperor 42 1 C 129 Lab. 1917 and Gurdit Singh v. Emperor 4 I C 941 rel.
(b) Penal Code (XLV of 1860)-
-- S. 302-Murder-Evidence-Recovery of crime weapon (pistol) Such evidence, without corroboration, not sufficient by itself to warrant conviction of accused on charge of murder-Recovery evidence suffering from flaws of material kind-Held, hardly worthy of credence to connect accused with commission of crime.-[Evidence-Recovery].
(c) Penal, Code (XLV of 1860)-
-- S. 302-Murder-Evidence of recovery, foot-track evidence and motive not established against accused-Conviction and sentence set aside.-[Circumstantial evidence-Recovery].
The Law of Identification and Discovery by Sh. Abdul Haleem, p. 77; Mangal Singh v. Emperor Criminal Appeal No. 262 and Murder Reference No. 52 of 1936; Saleh Muhammad v. Emperor Criminal Appeal No. 562 and Murder Reference No. 108 of 1937; Mylaswami Goundan and another , v. Crown A I R 1937 Mad. 951; Katua v. State A I R 1958 S C 180 and Mehr Ali v. State 1968 S C M R 161 not applicable.
Syed Ali Raza for Appellant.
Saeed K. Haq for the State.
Dates of hearing; 6th and 13th December 1974.
JUDGMENT
ABDUL JABBAR KHAN, J.--Muhammad Ashraf son of Yaqub Ali aged 26 years was tried along with his father Yaqub Ali aged 50 years for the murder of Tariq Manzoor, under section 302/109, P. P. C. Muhammad Ashraf has been condemned to death under section 302, P. P. C. while his father Yaqub Ali has been acquitted by the learned Sessions Judge, Lyallpur, vide his judgment dated 1st June 1973. Muhammad Ashraf has been also sentenced to a fine of Rs. 5,000 in default of payment of which to undergo further three years' R. I. It was directed that the fine if realised was to be paid to the heirs of Tariq Manzoor deceased under section 544-A. Cr. P. C.
Muhammad Ashraf has filed an appeal against his conviction and sen tences. The matter has also been referred to us under section 374, Cr. C. P. for the confirmation of death sentence awarded to him. We will dispose of the appeal as well as the Murder Reference and the revision (No. 6 of 1974) filed by Manzoor Ahmad complainant against the acquittal of Yaqub Ali co -accused which is though not admitted to regular hearing but was ordered to be heard along with this appeal, by this single judgment.
2. The occurrence took place on the night between 31st July and 1st August 1970 in Chak No. 5-L/73-A, in the criminal jurisdiction of Police Station Burjwala, District Sahiwal. The time of the occurrence was stated to be at about mid-night and the matter was reported to the police at 2-30 a.m. the same night. Lal Khan M. H. C. (P. W. 10) recorded the statement Exh. P L of Manzoor Ahmad P. W. 22, of which Exh. P L/1 is a fair copy. The distance between the place of occurrence and the Police Station was three miles.
3. The prosecution case as disclosed by the statement of Manzoor Ahmad P. W. 22, the father of the deceased, is as follows:
Manzoor Ahmad P. W. stated that on the night between 31st July and lst August 1970 he was sleeping along with his son Tariq Manzoor aged 21 years on two separate cots on the thara outside their baithak. The cot of the deceased was placed towards north. At about 1-00 a.m. in the night he woke up on the report of a gunshot as well as on the shrieks of his son. He found a young man of medium size who was just wearing a loin cloth and was holding a pistol in his hand, running towards the east. He discovered that his son Tariq Manzoor had received a gunshot and he died within a period of 5/7 minutes. He raised an alarm which attracted his neighbours Afzal, Irshad Abmad sons of Farzand Ali, Bashir and Muhammad Shafi. He also found foot-prints of the culprit at the place of occurrence which he covered. An empty cartridge P. 2 also came to his notice which was lying at the spot. He further found some retreating foot-prints of the culprit which he also preserved. All the persons who had collected, immediately proceeded towards the east to find the culprit and in this process they came across a jeep at a distance of 1 killas from the village and its occupants Sher Muhammad P. W. 16 and Adil P. W. 17 told them that they had seen a person of the description as suggested by the complainant in the light of the jeep at a distance of about four squares from the village. These two P. Ws. were returning to Sahiwal from Chak No. 45/5-L after canvassing for votes for Pir Ashiq Hussain. a candidate for election to National Assembly. These witnesses in formed Manzoor Ahmad complainant and his party-men that they had made an inquiry from the unidentified person but he did not reply and slipped away. They claimed that they would be able to identify him if he was brought before ;hem. The complainant led suspicion on Yaqub Ali co-accused and one Sadiq as the probable culprits who had either murdered his son Tariq Manzoor or had got him murdered.
4. The motive set up by the prosecution was that in year 1963 Yaqub Ali (acquitted accused) lost his son Zulfiqar Ali who was murdered by Ghulam Ali son of Hussain Gul, caste Awan. This Ghulam Ali was convicted and sentenced to four years' R. I. Manzoor Ahmad P. W. 22, the father of the deceased figured as P. W. in that case but Yaqub Ali co-accused considered his statement given in the case as the cause for the lesser penalty awarded to the murderer of his son Zulfiqar Ali. It has been asserted that Yaqub Ali (acquitted accused) used to say to Manzoor Ahmad P. W. that if his own son was murdered then he would realise severity of his pain. The suspicion by the complainant against Sadiq was based on the fact that he was a friend of Yaqub Ali co-accused and was challaned for setting on fire the khalwara of the com plainant Manzoor Ahmad on whose instance Sadiq was challaned and after his release on bail he (Le. Sadiq) openly used to declare that he would take the revenge.
On the same night the complainant Manzoor Ahmad P. W. 22 made avail able Nawab tracker P. W. 12 who reached at the spot and picked up the tracks of the murderer which led up to the dhari of Haitam P. W. 14. Lai Khan, M. H. C. after reducing the statement of the complainant into writing and marking it as Exh. P L, sent a copy of the F. 1. R. to Muhammad Yaqoob Khan Niazi, S. I. (P. W. 23), through Muhammad Akbar, F. C. The S. H. O. received the copy of the F. I. R. at 3-30 a. m. on that night in Chak No. 63/5-L. He immediately left for the place of occurrence and reached there at 5-30 a. m. after covering a distance of six miles. On reaching the place of crime he found the dead body of Tariq Manzoor on a cot. He prepared inquest report Exh. P Y and injury statement Exh. P Z of the deceased and sent the dead body to the morturay for post-mortem exa mination under the escort of Ghulam Yasin, F. C. P. W. 8. He also picked up blood-stained turban P. 1 and blood-stained chaddar P. 3 from the cot of the deceased and took them into possession vide memos. Ellis. P A and P C respectively. The S. H. O. made spot inspection and picked up a 12 bore empty cartridge P. 2 from the place towards the north of cot of the deceased at a distance of about one karam which was taken into possession vide memo Exh P. B. He took notice of foot-prints which were covered near the place of murder and showed them to Dara P. W. 13 and Adil P. W. 17 trackers who took their measurements. Moulds P. 6 and P. 7 of these foot-prints were taken by the S. I. vide memo Exh. P. D. The S. I. followed the tracks of the culprit with the assistance of the trackers which led to the dhari of Haitaan P. W. where he recorded the statement of Haitam P. W. The Investigating Officer has shown the dead body of Tariq Manzoor deceased lying on a cot at point No. 1 and '12 bore empty cartridge found at point No. 4 in the site. plan Exh. P H and P H/l. The site-plan was prepared on the direction of S. I. by Ishfaq P. W. 7, the draftsman, which he made over to the S. I. on 6th August 1970 for incorporation of his notes. We find that on 3-8-1970 one Sarfraz (given up P. W. as unnecessary) brought two soldiers with a track dog. The dog was brought to the place of occurrence where on the strength of cover ed foot-prints the dog led the foot-prints to the dhari of Haitam P. W. Tike appellant is said to have approached Dholar Khan P. W. 19 and Haji Jagdev P. W. 20 at the dera of Dholar Khan P. W. in Chak No. 111/9-L on 18-8-1970. He made clean breast of the entire affair and made a detailed confession of his crime, motive and the manner in which he had committed the offence. He requested them to produce him before the police and thus on his request the said P. Ws. reached Qadirabad Bus Stand and found Muhammad Yaqoob Khan Niazi S. L present at that place to whom the appellant was handed over. The S. I. arrested the accused and sent him in the judicial lock-up Sahiwal and asked him to cove. his face so as to avoid being located by the witnesses who were to identify him ultimately in the jail, S. I. requested the authorities to hold an identification parade vide his application Exh. P. M. Ch. Amanatullah M.- I. C. (P. W. 3) held the identification parade of Muhammad Ashraf appellant in Sahiwal Jail in which Siier Muhammad P. W. 16 and Adil P. W. 17 correctly identified him as the person whom they had seen passing in front of their jeep on the night of the occurrence. Exh. P N/2 and Exh. P N/3 were recorded as statements of Adil and Sher Muhammad P. Ws. respectively and the record of identification proceedings was made vide Exh. P N with a certificate of the Magistrate Exh. P N/1 on it. The same Magistrate after completing the first identification parade held another one in which Adil son of Ahmad snot produced) and Nawab P. W. 12 and Dara P. W. 13 picked up the tracks of the appellant as that of a person whose foot-prints they had found at the place of murder. The Magistrate prepared record of the proceedings of track parade Exh. P O and gave his certificate Exh. P O/1. Similarly, he recorded statement Exh. P O/2 of Dara and Exh. P O/4 of Nawab P. W. besides Exh. P O/3 of Adil (not produced).
On 13-8-1970 the appellant was remanded to the police custody after the identification parades were completed. On 14-8-1970 Muhammad Ashraf appellant led the S. I. to the recovery of pistol P. 4 from under the toori in his kotha wrapped in bunyan P. 5, having alive cartridge in its chamber. The S. I. sealed the pistol P. 4 in a parcel and took it into possession vide memo. Exh. P E. He also prepared a plan Exh. P. E./1.
On 17-8-1970 the S. I. received a letter Exh. P J in an envelop Exh. P J/1 purported to be on behalf of Muhammad Yaqub Ali accused which was shown to bad and Manzoor Ahmad P. W. 22. On 3-9-1970 Abad produced letter Exh. P F/1 before the S. I. which was earlier received from Yaqub Ali co-accused and the same was taken into possession vide memo. Exh. P F for the comparison of handwriting Exh. P J. On 26th September 1970 when Yaqub Ali co-accused appeared before the S. 1. after being rele ased on bail by the High Court, he addressed an application Eah. P X to the Magistrate for recording the statement of Yaqub Ali co-accused about letter Exh. P. J. Ch. Amanatullah, M. I. C. (P. W. 3) recorded statement Exh. P X/1 of Yaqub Ali co-accused and obtained his signature Exh. P J/2 on Exh. P J and he himself gave his notes Exh. P X/2 and appended notes Exh. P X/3 on the statement Exh. P X/1.
The pistol P. 4 recovered from the appellant and empty cartridge P. 2 were sent to the Firearms Expert, Syed Qurban Raza P. W. 2, the Fire arms Expert, who opined that the empty catridge P. 2 had been fired from pistol P. 4.
5. Dr. Mr. A. Saleemi P. W. 1, M. O. D. H. Q. Hospital, Sahiwal made a statement before the committing Magistrate on 6-6-1972 and the same was transferred to Sessions file under section 509, Cr. P. C. The post mortem examination performed by this doctor on the dead body of Tariq Manzoor deceased exhibited the following injuries on his person:-
(1) Gunshot wound (entrance) 2" x 2 on the left side of abdomen which is 3" from umbilicus on above and 2J" from the mid line of abdomen. There was no wound of exit. 6 small charred areas were present around this wound in space of 3' x 2 ". The piece of omentum and small intestine came out from the wound of entrance.
The cause of death in his opinion, was haemorrhage and shock due to the injury mentioned above which was ante-mortem and was sufficient to cause death in the ordinary course of nature. The distance of fire-arm from the injuries was between 1-3 feet. The probable time that elapsed between injury and death was within 5 to 10 minutes or instantaneous. The time between death and post-mortem was about 14 hours.
6. The prosecution case has been supported by 23 witnesses and is mainly based on the circumstantial evidence. It consists of the following categories :-
(i) the evidence of motive;
(ii) evidence of Wajtakkar witnesses, namely, Sher Muhammad P. W. 16 and Adil P. W. 17;
(iii) the evidence of foot-trackers;
(fv) the evidence of Naseer P. W. 11 who is said to have been appro -ached to act as hired assassin for the killing of the deceased or his father;
(v) the evidence of recovery of crime empty P. 2 and that of pistol P. 4 supported by the opinion of Syed Qurban Raza P. W. 2, the Firearms Expert;
(vi) the medical evidence; and
(vii) Evidence of the extra-judicial 'bonfession before Dholar and Jagdev P. Ws.
7. The case of the defence is that of bare denial. The appellant has however, denied the recovery of pistol P. 4 at his instance and stated that before the identification parades were held he was shown to the Wajtakkar witnesses as well as his foot-prints were made available to the trackers. He further stated that he has been involved on account of suspicion and the witnesses had deposed against him because they were friends of Manzoor Ahmad P. W. 22.
8. We have heard the learned counsel for the defence as well as the learned counsel for the State and have perused the record very carefully with their assistance.
On the very outset it may be pointed out that the learned trial Court has disbelieved the evidence of extra-judicial confession provided by Dholar Khan P. W. 19 and Haji Jagdev P. W. 20 and has similarly, discarded the evidence of wajtakkar witnesses namely, Sher Muhammad P. W. 16 and Adil P. W. 17. It has also refused to believe the story of Naseer P. W. 11 who stated that the appellant as well as his co-accused approached him to hire his services for killing somebody. The learned trial Court has based the conviction of the appellant on the basis of motive as proved against him, recovery of crime empty P. 2 from the spot which ultimately matched with pistol P. 4 recovered at the instance of the appellant. It has also believed the evidence of the trackers who correctly identified foot-prints of the appellant which he had left near the place where the deceased was murdered. The learned counsel for the defence has forcefully contended that the evidence of motive hardly stands proved against the appellant; that the track evidence was of very weak and flimsy nature and it was highly improbable that the tracks would be covered along with the crime empty at the spot as stated in the case of the prosecution. He further challenged the veracity of re covery of pistol P. 4 said to have been recovered at the instance of the appellant and contended that all this evidence has been fabricated in order to involve the appellant against whom father the complainant harboured, mere suspicion.
9. The learned counsel for the complainant has also been heard although his revision petition against the acquittal of Yaqub Ali co -accused was not admitted to regular hearing. The order of the Court was that it should be heard along with the appeal. We have allowed him to address us so as to learn his point of view and to judge the force of argu ments with regard to the finding of the learned trial Court by which it has held Yaqub Ali co-accused not guilty and has also disbelieved quite a substantive part of evidence vis-a-vis the appellant. It has been contended that Yaqub Ali (acquitted accused) was equally guilty as he had instigated his son (the present appellant) to commit the murder of Manzoor, although by mistake instead of shooting Manzoor Ahmad he had shot his son Tariq Manzoor deceased. According to the learned counsel this contention of his stood proved by the extra judicial confession of the appellant himself who implicated his father as a collaborator in the crime. It was submitted that the learned trial Court was not justified in rejecting the evidence of Dholar Khan P. W. 19 and Haji Jagdev P. W. 20 'who were independent witnesses and were also distantly related to the appellants' family. It has been further urged that the evidence of wajakkar witnesses Sher Muhammad P. W. 16 and Adil P. W. 17 and Haitam P. W. 14 was a truthful and natural account and there was no sound reason given by the learned trial Court to discard it. Similarly he has argued that the evidence of Naseer P. W. 11 was an important link which showed the animus of the appellant and his father against Manzoor Ahmad and it should have been given due importance.
We have scrutinised the evidence of all these witnesses with great care and have also perused the reasoning by which the learned trial Court had arrived at the conclusion that all this evidence was unworthy of reliance. After going through this exercise we have no hesitation to conclude that the learned trial Court was fully justified in placing no reliance on these pieces of evidence which the prosecution had tried to exhibit as links in the chain, to prove the motive as well as the commission of actual crime by the appellant at the instigation of his father Yaqub Ali co-accused. The story of Haitam P. W. that the appellant after committing the murder went to the dhari of Haitam to disclose his identity, by itself neither seems natural nor probable. Why should a murderer after committing the crime make himself available to persons who knew him well, without any rhyme or reason. The conduct of Haitam P. W. 14 is still more unnatural as there is no explanation by the prosecution as to why he did not tell the track party about the identity of the culprit when they had reached him. The natural reaction of the culprit on the barking of the dogs would be to move away and not to stand still so as to be questioned and identified. Besides our own reasoning, we are in full agreement with the various reasons given by the learned trial Court in para graph No. 29 of its judgment at page 136 of the paper Book, by which it has disbelieved Haitam P. W. 14. The story of Sher Muhammad P. W. 16 and Adil P. W. 17 who claimed to have seen the appellant in the lights of their jeep is equally without substance. The thing which a culprit was expected to do was to keep away from the head lights as well as from the road to avoid being noticed by the passersby, particularly, at that odd hour of the night, while he was conscious of the chase behind him. He would easily see the lights froze distance and thus would manage to be away to some farther place in the field which would be so easily available in those environments. The statement of Naseer P. W. I1 who, it was said came forward to tell the Court that the appellant and his father Yaqub Ali (acquitted accused) appro ached him for his services to destroy an enemy-is another very poor attempt on the part of the prosecution to show venom of the appellant against Manzoor Ahmad P. W. 22. In fact it strengthened the case of the defence, as it proves once for all that the appellant and his father were cowardly sort of people who considered themselves incapable of settling their accounts and were looking to others to come forward and satiate their thirst of ven geance. We are hardly impressed by this sort of evidence and feel satisfied that all these four witnesses discussed above, have been rightly disbelieved by the learned trial Court. In the light of the above discussion we find neither any force nor any substance in the contentions of the learned counsel for the complainant and thus these stand repelled.
10. The case of the prosecution now mainly rests on the evidence of motive, recovery of pistol P. 4 and its matching with crime empty P. 2 and that of track evidence. In the face of the fact that the extra judicial confession has been excluded from evidence, the prosecution is only left with solitary statement of Manzoor Ahmad P. W. 22 to prove its case regarding the motive of the appellant and his father to kill him. To lend support to this statement of Manzoor Ahmad P. W. reliance has been placed on a letter Exh. P J which Yaqub Ali co-accused had admitted to have written to S. I. after the incident. This admission was made by him in a statement recorded under section 342, Cr. P. C. before the learned trial Court. We find in the statement of Manzoor Ahmad P. W. 22 that he appeared as a prosecution witness in a case relating to the murder of Zulfiqar Ali, the brother of the appellant, which ended in conviction although the punishment awarded by the Court was only four years' R. I. Later on in an appeal before the High Court the same was enhanced to 10 years' R. 1. According to Manzoor Ahmad P. W. the appellant's father nourished grudge against him and held him responsible for the light punishment. Thus many a time he told the P. W. that if his son was murdered then only he would know the pangs of this pain. The story as narrated by this P. W. In no way gives impres sion that he had played foul with the appellant's family and thus initial punishment awarded by the trial Court, was the result of his lukewarm attitude or open hostility. If it was considered that the statement of this P. W. was a very crucial statement then in all probability the High Court would not have enhanced the punishment of the culprit. This view of ours is further supported by the fact that no evidence has been brought on the record to show that either Manzoor Ahmad P. W. was declared hostile or had given the account of the case in a manner which could be considered detrimental to the case of the prosecution. In view of the matter it was highly essential that the controversial statement of Manzoor Ahmad P. W. should have been brought on the file in order to enable the Court to judge for itself the intrin sic value of that statement and to find whether it could give any cause of grievance to the appellant's father to an extent so as to drive him to desperation in planning the murder of his own witness. The prosecution has produced no other witness to corroborate this assertion of Manzoor Ahmad complainant that appellant's father bad told him that he was responsible for spoiling the above mentioned case. In face of the letter produced by the prosecution to substantiate the allegation of Manzoor Ahmad P. W, regarding motive of the crime, a study of the same will disclose that the appellants father had appealed to the sense of justice of the Investigating Officer and was under the impression that his son Muhammad Ashraf appel lant had been killed. It is highly incoherent letter which only states the state of mind of a father who had learnt that he had lost his second son also and feels helpless while sitting at a distance of 1000 miles or so, lamenting his loss. It has been urged by the learned counsel for the complainant that in fact this letter was a ruse to deflect the course of investigation and it was written with purpose by the appellant's father Yaqub Ali co-accused in order to put the investigating agency on a wrong track. The suggestion of tail kind does not appeal to our minds, as we do not consider Yaqub Ali co accused, the father of the appellant, a, a man of an extraordinary intelli gence, who was acting like shrewd criminal, as depicted in the detective novels of legendary Sherlock Holmes. On the other hand the facts as given to us by the prosecution regarding this motive, in no way show that the appellant or his father could have any grudge apmNt Manzoor Ahmad P. W., who had once helped them in life and bad come forward as a witness for the prosecution to support case, in which the appellant's…
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