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Petitioner: NAZIR AKHTAR and another VS Respondent: THE STATE and others
Court Name: Federal Shariat Court Judge(s): Abdul Waheed Siddiqui, Ch. Ejaz Yousaf, Dr. Allama Fida Muhammad Khan Title: NAZIR AKHTAR and another vs THE STATE and others Case No.:Criminal Appeal No,141/I of 1994 lined with Criminal Murder Reference No,1/I
JUDGMENT
Reported As: 1998 MLD 919 Result: Appeal dismissed Judgment JUDGMENT DR. FIDA MUHAMMAD KHAN, J.---This appeal jointly preferred by Nazir Akhtar son of Saudagar Khan and Zamir Akhtar son of Rehmat Hussain, both residents of Wariaman, Tehsil and District Rawalpindi, is directed against the judgment dated 25-5-1994 passed by the leanred Additional Sessions Judge, Rawalpindi, wherein he has convicted them under section 302(b), P.P.C. for committing 'Qatl-i-Amad' of Khizar Hayat and sentenced each of them to death. He has further convicted Nazir Akhtar appelant/accused under section 377, P.P.C. for committing sodomy upon deceased Khizar Hayat and sentenced him to ten years with a fine of Rs,50,000, which has to be paid to the legal heirs of the deceased in case of recovery. He has further convicted Nazir Akhtar appellant/accused under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter called the said Ordinance, and sentenced him to death with a fine of Rs,75,000 which shall be paid to the legal heirs of the deceased or in default one year R.I. in both offences. He has, however, exonerated Zamir Akhtar appellant/accused from the charge levelled against him under section 377, P.P.C. All the sentences awarded to Nazir Akhtar appellant/accused are to run concurrently. The benefit of section 382-B, Cr.P.C., has been denied to them. A Murder Reference No,1/I of 1995 has been received. The other co-accused Muhammad Razzaq son of Karam Elahi has been acquitted of the charges by extending him the benefit of doubt. The complainant Faqir Ahmad, father of deceased Khizar Hayat has filed Criminal Revision Petition No,36/I of 1994 against the acquittal of Muhammad Razzaq with the prayer that he be also convicted and sentenced under the provisions of section 302/377/34, P.P.C. read with section 12 of the said Ordinance. Since all the maters arise out of one and the same judgment we are disposing them of by this single
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judgment. 2. Briefly stated that case of prosecution as recorded by Hasrat Mohani S.I. on 30-8-1989 at 5.45 p.m. at Police Station Rawat on the statement of Faqir Ahmad complainant is to the effect that he has two sons namely Zamarud Sultan aged 14/15 years and Khizar Hayat aged 10/11 years. At 7.00 a.m. on that day he took cattle for grazing and when he returned to his house at 3.30 p.m. he enquired about his younger son Khizar Hayat from his elder son, who informed him that Khizar Hayat had gone towards him. Whereupon, he told him that Khizar Hayat had not reached there. His wife also confirmed that soon after return from the school Khizar Hayat had gone towards him. Thereupon, he asked his elder son to go out and check where about of Khizar Hayat. When he (Zamarud Sultan) went outside and reached the land of Muhammad Ayyub which is situated at a short distance, he found a 'pinjri' lying over there. The said 'pinjri' had been taken along by Khizar Hayat from the house. On seeing the same Zamurad Sultan went inside the maize crop where he saw the dead body of Khizar Hayat besmeared with blood. He saw that blood-stained hatchet was also lying over there. He returned home in weeping condition and informed him. Thereafter, he himself proceeded to the place of occurrence and saw the dead body of Khizar Hayat which had injuries on right and left eye-brows and right ear. He took away the dead body to the house and reported the matter to police. He charged some unknown persons for the murder of his son and requested for necessary action. Hasrat Mohani S.I. (P.W.12) who recorded F.I.R. on the statement of Faqir Ahmad (P.W.7) proceeded to village Wariama and visited his house. He found the dead body of Khizar Hayat deceased lying on a cot on the said house. He prepared injury statement Exh.P.J. and inquest report Exh.P.K. and dispatched the dead body for post-mortem examination to mortuary under the escort of Muhammad Akram constable (P.W.5) alongwith Muhammad Arif and Muhammad Afzal P.Ws. Faqir Ahmad (P.W.7) produced blood-stained hatchet P.1 at his house before him which he took into possession vide recovery memo. Exh.P.B. and made the same into sealed parcel. Thereafter, he proceeded to the place of occurrence and inspected the spot where he secured blood-stained earth and made it into sealed parcel vide recovery memo. Exh.P.A. Both the memos. were attested by Sikandar Khan (P.W.1) and Muhammad Iqbal. On the following day Muhammad Akram constable after the post-mortem examination of the deceased Khizar Hayat produced before him post-mortem report Exh.P.O. and last worn clothes i,e, shirt P.7, Shalwar P.8 Parna P.9 and sealed phial containing swabs before him, which he secured vide memo. Exh.P.G. He also recorded the statements of Abdul Ghafoor and Haji Muhammad Arif (P.W.6) and also recorded supplementary statement of Faqir Ahmad complainant. He started to trace out Nazir Akhtar, Zamir Akhtar and Abdur Razzaq accused but they were not traceable. On 5-9-1989 Raja Muhammad Arif (P.W.9) made a statement before him in village Haraqqa. On 6-9-1989 said P.W.9 produced before him Zamir Akhtar and Nazir Akhtar accused and he effected their arrest and got them medically examined on 7-9-1989. On 8-9-1989 he arrested Abdur Razzaq accused. After necessary investigation the accused were challaned to face trial where Abdur Razzaq was acquitted and both the appellants/accused were convicted and sentenced as mentioned hereinabove. 3.At the trial the prosecution examined fourteen witnesses. P.W.1 is Sakandar Khan. He is a marginal witness to recovery memo. Exh.P.A. vide which the blood-stained earth collected from the spot and made into a sealed parcel in his presence was secured. He is also a marginal witness to recovery memo. Exh.P.B. whereby blood-stained hatchet P.1 was produced in his presence by the complainant, while pointing out the place where the dead body was lying, and made into sealed parcel. P.W.2 is Muhammad Nawaz constable. On 7-9-1989 he delivered the parcels containing blood-stained earth and bloodstained hatchet which he had received on 6-9-1989 in the office of Chemical Examiner intact. P.W.3 is Haji Muhammad Azam Patwari. On 14-9-1989 he visited the spot and on the pointation of P.Ws. and on direction of the police he prepared rough notes and
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subsequently prepared site plan Exh.P.C. and Exh.P.C./1 which is in his hands and also bears his signatures. P.W.4 is Subedar Muhamamd Azad. He is a marginal witness to the recovery memo. Exh.P.D. whereby blood and semen stained clothes i,e, shirt P.2 and Qameez P.3 were taken into possession which were recovered from the pigeon hole in the house of Nazir Akhtar accused on his pointation. He is also a marginal witness to recovery memo. Exh.P.E. whereby blood stained Churri P.4 was taken into possession, after recovery of the same by pointation of Nazir Akhtar accused from the said pigeon hole. He is also witness to the recovery memo. Exh.P.F. vide which the blood stained Shalwar P.5 and shirt P.6 of Zamir Akhtar appellant/accused were taken into possession from his house, on his pointation. P.W.5 is Muhammad Akram constable. On 30-8-1989 he escorted the dead body of Khizar Hayat to DHQ Hospital Rawalpindi for post-mortem. He brought and handed over last worn clothes of the deceased i,e, blood-stained shirt P.7, Shalwar P.8, blood- stained Parna P.9 as well as the sealed phial containing swabs to the Investigating Officer who took the same into possession vide recovery memo. Exh.P.G. On 12-9-1989 he delivered three sealed parcels containing blood and 'semen stained clothes of Nazir Akhtar accused, Churri and blood- stained clothes of Zamir Akhtar accused to the office of Chemical Examiner Lahore. P.W.6 is Haji Muhammad Arif. He is brother of the complainant. He made a deposition in the following words:-- "On 30-8-1989 I was reaping Tara Mira in my land in the area of Wariama. At about 10 a.m. Nazir Akhtar and Zamir Akhtar accused present in the Court happened to pass near my land and we exchanged wishes. At a short distance Abdur Razzaq accused present in the Court was already present and Zamir Akhtar and Nazir Akhtar walked ahead and joined him and sat there. They remained there together for 10 to 15 minutes and thereafter, all of them went away somewhere. When I had already come back from my land to my house in the village, at about 1.30 p.m. somebody came to me and informed me that some one has died in village Darkali. My brother is married from village Darkali. I informed my other brother Abdul Ghafoor and both of us sat out from the village for village Darkali. On way first we went to the house of Faqir Ahmad P.W. and there we were told that Faqir Ahmed was not present at the house as he had left for his land alongwith his cattle. We went in the direction where Faqir Ahmed was stated to have gone so that he should also have been informed about the death. On way when we were near the place of occurrence we saw that Zamir Akhtar and Nazir Akhtar both accused were moving at fast speed from the direction of the place of occurrence towards east in the direction of stream. They crossed the Katcha path in front of us at a distance of 70/80 paces. Thereafter, we contacted Faqir Ahmed and apprived him of the death in village Darkali. He stated that he would follow us after leaving his cattle in the village and then myself and Abdul Ghafoor left for village Darkali on way reached Adda Pial. We were still present at the said Adda when we were informed that Khizar Hayat, the son of Faqir Ahmed had been murdered. We came back to the village. When we reached the village Faqir Ahmed P.W. had already left for the police station to lodge the report. On second day we narrated the above mentioned event to Faqir Ahmed P.W. and also made statement before the Investigating Officer. I had identified the dead body of Khizar Hayat at the time of its post-mortem examination." P.W.7 is Faqir Ahmed. He is the complainant and father of Khizar Hayat deceased. He narrated his statement as mentioned hereinabove. He made the following addition as well:-- "On the same day I produced hatchet P.1 before the police which was taken into possession by the Investigating Officer vide recovery memo. The hatchet P.1 is the same which I removed from the spot. It was stained with blood and made into a sealed parcel by the Investigating Officer. On the second day it was disclosed to me by Haji Muhammad Arif and Abdul Ghafoor P.Ws. that while they were proceeding Darkali they had seen Nazir Akhtar and Zamir Akhtar accused while proceeding and passing on Katcha path at a place near the place of occurrence. (Under objection). My deceased son was keeping a partride and he had earlier disclosed me that on three, four occasions Nazir Akhtar and Zamir Akhtar accused demanded said partride from him which he had
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refused. Due to said reason I am convinced that the present accused murdered my son." ' In cross-examination he stated that he had made a supplementary statement. P.W.8 is Muhammad Akram S.I. On 31-8-1989 he kept in Malkhana a sealed parcel containing blood-stained earth, blood-stained hatchet and a sealed envelope and a sealed phial containing swabs, which were handed over to him by Hasrat Mohani (P.W.12). On 3-9-1989 he handed over the same to Muhammad Yaqoob constable (P.W.11) for taking the same to the office of Chemical Examiner Rawalpindi. On 6-9-1989 he handed over the sealed parcel of blood-stained earth and sealed parcel of blood-stained hatchet to Muhammad Nawaz constable (P.W.2) for taking the same to the office of Chemical Examiner Lahore intact. On 8-9-1989 he kept in Malkhana a sealed parcel containing blood-stained Churri and another parcel containing blood and semen-stained clothes of Nazir Akhtar accused and another sealed parcel containing blood stained clothes of Zamir Akhtar accused which were handed over to him by the Investigating Officer. On 12-9-1989 he gave the same to Muhammad Akram constable for taking the same to the Chemical Examiner Lahore. P.W.9 is Raja Muhammad Arif. He made a deposition in the following words:-- "On 5-9-1989 at about 4 p.m. I went at Pyial Adda. There Bashir P.W. met me. We started talking when in the meanwhile Nazir Akthar and Zamir Akhtar accused now present in the Court came there. Both of the aforesaid accused said that they wanted to talk to me and took me aside. I went with them to a place about 10/12 yards away under a tree. Bashir P.W. also accompanied us. Nazir Akhtar accused disclosed to me that on 30-8-1989 he alongwith Zamir Akhtar and Muhammad Razzaq accused were hunting 'Quails' (bateras) near village Warima. Nazir Akhtar accused further told me that Khizar Hayat (deceased) was present there on a Banna in the corn fields. He had a partridge. He was feeding him 'Deemak'. Nazir accused told me that he asked Khizar Hayat to give him that partridge but Khizar Hayat declined. He further told me that he then abused Khizar who retaliated in hurling back the abuse. He further told me that he caught hold of Khizar Hayat and took him in the Corn field where he felled him on the ground and gave a blow on his head with the wrong side of the hatchet. Thereafter, Zamir Akhtar accused put his hand on the mouth of Khizar Hayat while he (Nazir accused) committed carnal intercourse against the order of nature with Khizar Hayat. Nazir Akhtar further told that thereafter, Zamir Akhtar inflicted blows with the blunt side of the hatchet on the head and face of Khizar Hayat and Muhammad Razzaq accused kept guarding them while standing at an elevated place. Nazir Akhtar further told that after he and his co accused were satisfied that Khiar Hayat had died, he (Nazir Akhtar accused) and Zamir Akhtar accused went towards the east towards the well while Muhammad Razzaq accused went towards Moza Samblal. Nazir Akhtar told me that he and his co accused were ashaimed of their misdeed and repented. They desired that I should produce them before the police. Thereafter, Zamir Akhtar accused also narrated the same story before me. I told them that I would produce them before the police tomorrow and they should come to my house on the following morning. When I returned in the same evening to my village Haraqa, at the Adda of Haraqa police met me, I disclosed the abovementioned facts to the police. The police recorded my statement. On the following morning I produced Zamir Akhtar and Nazir Akhtar accused before the police." ' P.W.10 is Muhammad Bashir. He was present alongwith P.W.9 Raja Muhammad Arif when both Nazir Akhtar and Zamir Akhtar accused took him aside and made the aforementioned extra judicial confession. He fully supported the version made by P.W.9. P.W.11 is Muhammad Yaqoob constable who on 3-9-1989 transmitted one sealed envelope and one sealed phial to the office of Chemical Examiner Rawalpindi intact. P.W.12 is Hasrat Mohani S.I. He is the Investigating Officer who on 30-8- 1989 recorded F.I.R. Exh.P.H. on the statement made by Faqir Ahmad (P.W.7). He also recorded supplementary statement of the complainant. He prepared the injury statement Exh.P.J. and the inquest report Exh.P.K. and dispatched the dead body for post-mortem examination. He proceeded to the place of occurrence. He took into possession blood-stained earth and blood-stained
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hatchet vide memo. Exh.P.A. and Exh.P.B. On the next day he took into possession last worn clothes of the deceased vide memo. Exh.P.G. On the same day he recorded statements of Abdul Ghafoor and Haji Muhammad Arif P.W.6 and started tracing out the appellants/accused. On 5-9-1989 Raja Muhammad Arif (P.W.9) made a statement before him at village Haraqqa and also produced the appellants/accused before him and he effected their arrest. On 7-9-1989 he recorded the statement of Muhammad Bashir (P.W.10). Thereafter, he got Nazir Akhtar appellant/accused medically examined. On the same day on the pointation of Nazir Akhtar accused he took into possession blood-stained Churri and blood and semen-stained clothes from a pigeon hole in the room of his house and secured the same vide recovery memos. Exh.P.E. and Exh.P.D., while also sealing the same in separate parcels. He also drafted complaint under section 13 of the Arms Ordinance against Nazir Akhtar accused as he had no valid licence for the said Churri and sent the same for formal registration of the case. Thereafter, on the same day on the disclosure and pointation of Zamir Akhtar appellant/accused he got recovered his blood-stained clothes and took the same into possession vide recovery memo. Exh.P.F. which he made into sealed parcel. He recorded the statements of all the recovery witnesses and handed over the case property to the Moharrir. He got prepared site plan Exh.P.C. and Exh.P.C./1 through P.W.3. After completion of investigation he got the accused challaned to the Court. P.W.13 is Dr. Aftab Aslam. On 31-8-1989 at 10.00 a.m. he conducted post-mortem examination of Khizar Hayat deceased. He made the following findings and observations:-- "On Examination: ' It was a young boy of aged about 11/12 years wearing dark blue Shalwar, qameez, eyes closed, mouth was open, head was wrapped with Saafa, rigor mortis was developed, post-mortem staining was present on the dependent parts of the body. Nothing was coming out from ears and nose. No laceration or marks of violence around anus. External Injuries: (1)A bruise was present on left temporal region measuring 5 cm x 3 cm. (2)A lacerated wound measuring 4.5 cm x 1.5 cm just below left eyebrow. (3)A lacerated wound measuring .5 cm x .5 cm below left eye on lateral margin. (4)A lacerated wound measuring 1 x 1 cm on bridge of nose. Nasal bone was fractured. (5)A lacerated wound measuring 4 x 1.5 cm on right eye brow. (6)A lacerated wound measuring 3 x 1 cm on front of chin 3 cm below lower lip. (7)A bruise was present on the front of neck measuring 4 x 2 cm on dissection clotted blood was present. Hyoid bone was normal. (8)A lacerated wound measuring 3 cm x 5 cm just close to right ear on cheek cutting through tragus. Internal injuries after dissection: SKULL:--Depressed fracture of left temporal bone. MEMBRANES:--Lacerated over left temporal region. Sub-dural haemotoma over left temporal brain matter is coming out of the gegion. Larynx and tracheae: Full of blood and congested. LUNGS: Congested. HEART: Right side filled with blood, left side empty. STOMACH: Contained semi solid fluid. LARGE INTESTINES:Contained faecal matter. FRACTURE:-- (.1) Depressed fracture of left temporal bone. (2)Fracture of nazal bone. (3)Fracture of lower jaw.
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Rest of the organs was normal and healthy. OPINION: In my opinion the deceased died due to injury No,1 which caused brain damage and injury was sufficient to cause death in ordinary course of nature. Injury was antemortem and caused by blunt weapon. Rest of the injuries were ante-mortim and caused by blunt weapon. Anal swabs were taken and sent to the chemical examiner for detection of semen. The probable duration between injuries and death was within an hour and time between death and post-mortem was within 15 hours. After the post-mortem examination I handed over the 'stitched dead body alongwith the last worn clothes of the deceased and sealed parcels of anal swa bs to Muhammad Akram constable. Exh.P.O. is the correct carbon copy of the Post-mortem Examination Report which is in my hand and bears my signatures. On 24-9-1989 when Chemical Examiner's Report Exh.P.P. was presented before me I gave my report on post mortem examination report which is Exh.P.O./1. According to Chemical Examiner's Report No,5/7469 dated 5-9-1989 sperns in anal swabs were positive. According to the report of the chemical examiner the victim was subjected to sodomy and so is my opinion. I signed the injury statement Exh.P.J. and the inquest report Exh.P.K. which were presented by the police. ' The Chemical Examiner's Report Exh.P.S. on the clothes of Nazir Akhtar accused reveals that Shalwar and Qameez are stained with semen and blood. His report Exh.P.S./1 regarding Churri recovered from and on the pointation of Nazir Akhtar accused discloses that it is stained with human blood. His report in respect of clothes of Zamir Akhtar accused reveals that they are stained with blood. Report pertaining to Kulhari shows that the same is stained with blood. Similarly report about the earth reveals that it is stained with blood. His report Exh.P.P. on the anal swabs discloses that they are stained with semen. The reports of the Chemical Examiner as well as of Serologist were tendered in evidence. 5.Both the appellants/accused made statements under section 342, Cr.P.C. wherein they denied the allegation and pleaded innocent. Nazir Akhtar appellant/accused while responding to question No,15 "Why this case against you and why the P.Ws. have deposed against You?" stated that the story is after thought. The local police in order to cover up the gap falsely implicated him and co- accused and the complainant party too chained the false story for political reasons. He declined to make statement in defence in disproof of the charges levelled against him. The appellant/accused Zamir Akhtar made a similar reply to question No,12. He also declined to make statement in defence. 6.We have heard the learned counsel for the parties and have perused the record with their assistance. The learned counsel for the appellants submitted that the conviction and sentence of the appellants is not warranted under the law on the basis of the evidence on record. He submitted that the motive set out in the prosecution story about the pinjri and partridge has not been established on record and has miserably failed, that the recoveries are highly doubtful and improbably, that the extra-judicial confession allegedly attributed to the appellants/accused, being the joint confession is not admissible, that it is concoction and afterthought and as such cannot be made basis for conviction of the appellants, that the prosecution witnesses are highly interested and worthy of no credence whatsoever as their statements are discrepant and that the same evidence has not been believed in respect of co-accused Muhammad Razzaq who has been acquitted. 7.On the other hand learned counsel for the complainant submitted that P.W.9 and P.W.10 before whom the appellants/accused have made extra-judicial confessions are independent witnesses and have neither any enmity with the accused nor have any relationship with the complainant party and as such their evidence is confidence inspiring, that according to the statements of P.W.9 and P.W.10 the acquitted co-accused Muhammad Razzaq performed guard duty, while standing at elevated place, when the appellants/accused were engaged in subjecting Khizar Hayat to sodomy
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and inflicting fatal blows by hatchet to him. As such, he contended, his acquittal was not in accordance with the norms of justice. The learned counsel for State supported the impugned judgment and did not support the revision petition. He submitted that the case of Muhammad Razzaq acquitted co-accused was distinguishable from that of the appellants. 8. We have minutely appreciated the evidence on record in the light of submissions made by all the learned counsel. It transpires from the record that the case of prosecution mainly rests on the statements of P.W.6 Haji Muhammad Arif, P.W.9 Raja Muhammad Arif and P.W.10 Muhammad Bashir and witnesses of the recoveries, besides the evidence of Medical Officer Dr. Aftab Aslam (P.W.13) read with the reports made by Chemical Examiner and Serologist. Haji Muhammad Arif (P.W.6) saw .both the appellants at 10.00 a.m. when he was present in his land in the area of Wariama and exchanged wishes with them. He also saw Muhammad Razzaq who was already present at a short distance and saw the appellants/accused walking ahead and joining him and sitting together over there. He observed that they remained there together for 10/15 minutes and thereafter, all of them went away somewhere. At about 1.30 p.m. somebody informed him after he had gone to his house in the village that some one had died in village Darkali. He alongwith his brother Abdul Ghafoor who was married in that village set out for the same. While going there they also went to the house of their brother Faqir Ahmad complainant where he was informed that Faqir Ahmad was not present in the house and had left for his land alongwith his cattle. Thereafter, they went in the direction where Faqir Ahmad was stated to have gone so that he should also be informed him about the death occurrence in village Darkali. On the way…
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