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Petitioner: MUHAMMADANWAR VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Abdul Majeed Tiwana, Khizar Hayat Title: MUHAMMADANWAR vs THE STATE Case No.: Criminal Appeal No.229 of 1987 Date of Judgment:1989-01-22 Reported As: 1992 P Cr. L J 1554 Result: Appeal dismissed
JUDGMENT
JUDGMENT ABDUL MAJID TIWANA, J: -- Muhammad Anwar appellant son of Bashir Ahmed, aged about 35 years, caste Rajput, resident of Ward No.2, Alipur Town, District Muzaffargarh, was tried by the Punjab Special Court for Speedy Trial No.11, D.G. Khan, on the charge of committing murder of Ihsan Elahi son of Muhammad Lukman, caste Pathan, aged 30-32, Excise Inspector at Alipur, District Muzaffargarh, and having been convicted under section 302, P.P.C. Was sentenced to death and a fine of Rs.50,000 or in default of its payment to undergo two years' R.I. He was also directed to pay a sum of Rs.50.000 as compensation to the heirs of the deceased. Against this conviction and sentence the appellant has come up in appeal to this Court. 2. The prosecution story is that on 1-10-1986, Ihsan Elahi (deceased), who was an Excise Inspector, accompanied by A.S.I. Muhammad Rafiq of C.I.A. Staff, Muzaffargarh, and other members of raid party in discharge of his official duty, raided the house of Muhammad Anwar appellant in Alipur Town pursuant to an information that he was storing narcotics therein. The raid proved abortive as the appellant, on the receipt of the news about the arrival of the raid party, slipped away after locking his house. The raid party broke open the lock of his house and searched it thoroughly but did not find anything incriminating or actionable. 3. On the following day i.e. On 2-10-1986 at 8-45 a.m. When Ihsan Elahi (deceased), coming from his house in Alipur Town, was proceedings towards his office, Muhammad Anwar appellant, annoyed by the incident of raid and search of his house taking place a day earlier, armed with a Chhuri came from the direction of Faisal Chowk and stealthily overtaking Ihsan Ellahi (deceased) near the shop of Hakim Qasim in Urdu Bazar, attacked him from behind and inflicted two Chhuri blows on his left flank. Ihsan Ellahi (deceased) on the receipt of the blows took a swift turn and tried
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to catch .His assailant but in that process the latter gave him another blow. As a result of these injuries Ihsan Ellahi (deceased) fell down on the ground. Muhammad Aslam and Haji Fazal Muhammad P.Ws. And some other persons, who were present nearby and were seeing the occurrence; tried to catch hold of the assailant but brandishing his blood-stained Chhuri, he ran away after threatening them. Muhammad Aslam P.W. With the help of some other persons removed the injured to Civil Hospital Alipur. 4. Hearing the news of the occurrence and the injured having been removed to Civil Hospital, Alipur, A.S.I. Abdul Hamid P.W. Reached there at about 9-30 a.m. And, after recording his statement (Exh.P.A.), sent the same to the police station for the registration of the case. Taking its investigation he prepared the injury statement (Exh.P.H.) of the injured and got him medically examined by Dr. Abdul Ghafoor. Soon after his medical examination, the doctor referred him to Nishtar Hospital, Multan, as an emergency case. The A.S.I. Then inspected the spot, prepared its rough sketch and recorded the statements of P.Ws. He went on searching for the appellant and eventually arrested him on 8-10-1986. While in custody, the appellant on 20-10-1986 led to the recovery of blood- stained Chhuri (Exh.P.F.) from his residential house which the A.S.I. Seized vide recovery memo. (Exh.P.F.) after making it into a sealed parcel. He got prepared the site plan (Exh.P.B.) and its duplicate (Exh.P.B./1) from Syed Nayar Zaidi Draftsman and entered his notes in red ink thereon. On 17-10-1986 Ihsan Ellahi injured expired in the hospital and on the receipt of this information he went there and, after preparing the inquest report (Exh.P.M.), despatched the dead body to the mortuary for post-mortem under the escort of Mukhtar Ahmad Constable. The investigation of the case, which had almost completed, was then taken over by S.I. Mirza Abdul Baig, S.H.O. Police Station City, Alipur, who submitted the formal challan. . 5. On the commencement of trial, Sh. Ikram-ud-Din, the learned Additional Sessions Judge II, Muzaffargarh, charged the appellant under section 302. P.P.C. For committing murder of Ihsan Elahi (deceased) and on his pleading not guilty, the prosecution led evidence against him. The learned Additional Sessions Judge recorded the statements of three witnesses while the learned Judge, Special Court for Speedy Trial No.11, Dera Ghazi Khan, recorded the statement of remaining seven witnesses: 6. To be a little more precise, Syed Nayar Zaidi Draftsman (P.W.1) proved the site plan (Exh.P.B.), its duplicate (Exh.P.B./1) and its triplicate (Exh.P.B/2). H.C. Nazar Hussain (P.W.2) proved the recording of formal F.I.R. (Exh.P./1) on the statement (Exh.P.A.) of Ihsan Ellahi injured which was recorded by A.S.I. Abdul Hamid and sent to the police station for the registration of the case. He also deposed about the receipt of a sealed parcel of the Chhuri deposited with him by the Investigating Officer on 20- 10-1986 and later transmitted by him to the office of Chemical Examiner, Lahore on 26-10-1986 through F.C. Mukhtar Ahmad (P.W.3), who, besides its safe transmission to the relevant office at Lahore, also explained as to how he escorted the dead body of Ihsan Ellahi (deceased) on 17-10- 1986 from Nishtar Hospital, Multan, to -the mortuary and how he delivered last worn clothes to A.S.I. Abdul Hamid which had been given to him by the doctor after the post---mortem examination. 7. Muhammad Aslam (P.W.4), the sole eye-witness in the case, deposed that a year and a month ago at, 8-45 a.m. When he was present near the shop of Hakim Qasim in 'Urdu Bazar, Alipur Town, he saw Muhammad Anwar appellant causing Chhuri blows on the left flank of Ihsan Ellahi (deceased) after overtaking him and when the victim tried to catch hold of the assailant, the latter gave him another Chhuri blow on his neck. According to him, he, Haji Fazal Hahmood and some other persons, who all were present nearby, saw the occurrence and tried to catch hold of the assailant but he fled away, brandishing his blood-stained Chhuri after threatening them and he, with the help of certain other persons soon after removed Ihsan Elahi injured, who had fallen on the ground as a result of the injuries sustained by him, to the Civil Hospital. Alipur. He also testified about the motive by saying that Muhammad Anwar appellant had caused injuries to Ihsan Ellahi
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(deceased) as the latter had raided the house of the former a day prior to the occurrence. He further deposed that after the injured had been examined in the Civil Hospital, Alipur, he, under the advice of the doctor, took him to Nishtar Hospital, Multan, as his condition was precarious and he later died in that hospital on 17-10-1986 as a consequence of the above-mentioned injuries. He also proved the recovery memo. (Exh.P.E.) by which the Investigating Officer had seized the blood-- stained shirt (P.1) and Shalwar (P.2) of the deceased. 8. In cross-examination he stated that the deceased was not known to him prior to the day of occurrence but he knew the appellant previously. He signified lack of knowledge about the calling of appellant's father, the property owned by him and similar other particulars of his family members and deposed that he knew this much that his father resided in Alipur Town. With regard to whereabouts of Ihsan Ellahi (deceased) he stated that he used to reside outside the walled city of Alipur Town but his office was situated in the walled area. About his own calling, he testified that he dealt in cloth and his shop was situated at a distance of 40-50 yards away from the police station, Alipur, outside the walled town. In reply to a suggestion of the learned defence counsel he deposed that many people did not like the deceased and were annoyed with him due to raids on his house. Regarding the purpose of his being present near the place of occurrence, he explained that he had gone there to purchase some account books but due to the occurrence he could not and purchased those books on the following day. He, however, could not recollect the name of the shop from where he had purchased those books. About locale of occurrence, he testified that there were 20-30 shops around and 5-7 shops were lying open at the time of incident and the people were frequenting the bazar. According to him, the blood of the deceased did not fall at the place of occurrence nor did it stain his hands when he picked him up for removing him to the hospital. He gave some details in terms of distance regarding his own presence at the time of occurrence, the manner the appellant attacked the deceased and he received the injuries and the appellant left the spot after committing the crime. He also explained the way he and others removed the injured to the Alipur Hospital and later to Nishtar Hospital, Multan. Giving his own bio-data he stated he had joined Federal Security Force as an A.S.T. In 1973 and denied the suggestion that during the days of occurrence he was residing at Jatoi. He admitted that his brother Muhammad Azam was partner in Panjnad Cinema but denied the suggestion of the defence that his brother, in collaboration with the Excise officials and local police, was defrauding the Government to the tune of Rs.25,000 per month in respect of taxes of that cinema house. Finally, he denied the suggestion of the defence that he was deposing falsely. 9. Muhammad Luqman (P.W.5), who was father of Ihsan Ellahi (deceased), had identified the dead body of his son at the time of autopsy and had witnessed the delivery of his last-worn clothes by Constable Mukhtar Ahmad, given to him by the doctor after the post-mortem examination, to the Investigating Officer and proved the seizure memo. (Exh.P.D.) He also testified about the recovery of blood-stained Chhuri (P.4) on 20-10-1986 at the instance of Muhammad Anwar appellant which was seized by the Investigating Officer vide recovery memo. (Exh.P.F.) after making it into a sealed parcel. He was cross-examined by the learned defence counsel at some length. His testimony shall be subjected to appraisal in due course, where necessary. 10. S.I. Muhammad Rafiq (P.W.6) testified that on 1-10-1986, when he was posted as A.S.I., C.IA. Staff, Muzaffargarh, he alongwith Ihsan Ellahi (deceased). Who was then Excise Inspector, besides others, had raided the house of Muhammad Anwar appellant on the receipt of information that he was keeping some narcotics in his house but receiving an intimation about the arrival of the raid party, he locked his house and slipped away. He proved the raid report (Exh.P.G.). In the cross- examination he stated that the jurisdiction of C.IA Staff, Muzaffargarh, extended to the whole of the district and he had accompanied the raid party with the verbal permission of Inspector Incharge of C.I.A. Staff. He admitted the suggestion of the learned defence counsel that the lock of the house of
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the appellant was broken by the deceased. In reply to another question he stated that some members of the raid party had dug out the courtyard of the appellant's house at the time of raid to find out hidden narcotics but nothing incriminating was recovered and the articles of the household were left in disorderly manner. He denied the suggestion of the defence that the story of raid of the appellant's house had been concocted for supplying motive. 11. The next witness was doctor Abdul Ghafoor, Medical Officer, T.H.Q. Hospital, Alipur (P.W.7). He deposed that on 2-10-1986 at 10-30 a.m. He medically examined Ihsan Ellahi injured brought by A.S.I. Abdul Hamid to the Hospital and found the following injuries: -- (1) An incised wound -- c.m. x -- c.m. On the left side of face below left ramous of mandible. (2) An incised wound of 2 c.m. x 1/2 c.m. x deep going on the left side of chest mid-lateral area. (3) An incised wound of 3 c.m. x 1/2 c.m. x deep going on left lateral chest. (4) Complaint of difficulty in respiration and severe pain in abdomen. 12. According to him, injury No.1 was declared simple while the rest of the injuries were kept under observation. In his opinion, all these injuries were caused by a sharp-edged weapon. The probable duration between injuries and medico-legal examination was within half to one hour. He stated that the injured was referred to Nishtar Hospital for treatment and investigation as a case of emergency and after conducting medical-legal examination he handed over the police papers and one carbon copy of medico-legal report (Exh.P.J.) to A.S.I. Abdul Hamid. 13. Dr. Iftikhar Hussain, Medical Officer, Civil Hospital, Multan (P.W.8) had carried out the post- mortem examination on the dead body of Ihsan Ellahi on 17-10-1986 at 4-15 p.m. The dead body was brought by Mukhtar Hussain Constable and identified by Sh. Tahir Ali and Muhammad Luqman P.Ws. On external examination he found the dead body as of a well-built male with rigor mortis present on its upper half and post-mortem staining covering whole of it. He found healed scars of injuries Nos.1. 2 and 3 on the dead body as follows:--- (1) Healed scar corresponding to injury No.1 of Exh.P.J. Was present below the left mandibular area. (2) Healed scar corresponding to injury No.2 of Exh.P.J. Was present on the dead body on the outer side of left chest, at anterior axillary lines. (3) Healed scar corresponding to injury No.3 of Exh.P.J. Was present on the dead body, on the outer side of left chest at mid-axillary lines lower pat. 14. He deposed that, according to the bed-head ticket of the deceased, on chest intubation 500 cc of blood was evacuated from his left chest cavity and both the chest injuries were found communicating with the pleura. Later the patient developed complications like uraemia, myocardial infarction and pulmonary embolism, he added. 15. Giving further details of the injuries, he testified that injury No.2 had entered the chest cavity through the left 5th inter-costal space by cutting 5th rib partially and healed scars of the cuts, were present on the pleura and the lungs while injury No.3 was an entry wound into the chest cavity through the 9th left inter-costal space leaving healed scars on the pleura and the lungs. He found small amount of clotted blood in the left chest cavity and myocardium showing infracted areas with both the chambers of the heart containing large fat emboli partially blocking the pulmonary vessels. 16. In his opinion, injuries Nos.2 and 3, as described in M.L. (Exh.P.J.), were sufficient to cause death in the ordinary course of life and the death occurred due to serious complications resulting from these injuries. According to him, all the injuries were ante-mortem caused by sharp-edged weapon within the probable duration of 15 days between the injuries and death, and 6 to 9 hours between the death and post-mortem examination. He proved the post-mortem report (Exh.P.L.) an diagram showing seats of injuries and operation wounds (Exh.P.L./1). 17. In reply to a question of the defence a stated that the possibility of the patient's not having died had there been no complications, could not bed ruled out. In reply to another question he deposed
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that myocardial infarction and uraemia were not the only causes of his death as there could be other causes as well. He, however, denied a general suggestion that deaths in Nishtar Hospital occurred due to the negligence of the doctors after operation. He accepted the suggestion of the learned defence counsel that had there been no complications complications in this case, injuries Nos.2 and 3 even otherwise would have been sufficient to cause death in the ordinary course of nature and he denied the suggestion that he had given a wrong opinion on, this point, Opining generally in reply to another question, he stated that if an injury penetrates in abdomen and the chest cavity, that is sufficient to cause death in the ordinary course of nature and if it does not cause the death of the injured immediately and he dies two months after the infliction of the injury even then technically that injury is sufficient to cause death in the ordinary course of nature. He admitted another suggestion of the defence that poisoning of the blood, development of peritonitis, lack of post operative care, use of substandard drugs, wrong diagnosis by the doctors- attending the patient and his own carelessness were a few causes of the complications of the deceased. 18. The next witness was A.S.I. Abdul Hamid (P.W.9). The role played by him as an Investigating Officer has already been outlined and there is no need to walk over the same ground again. However, his statement as a whole shall be scrutinised in due course in the light of comments of the learned defence counsel. Another Investigating Officer was S.I. Abdul Baig, S.H.O. Police Station (Saddar) Muzaffargarh (P.W.10). He did nothing except to prepare the, challan on the investigation already completed by A.S.I.. Abdul Hamid and submitted the same to the Court concerned. 19. Allah Bakhsh Khan, Special Public Prosecutor, gave up Haji Fazal Mahmood P.W. As having been won over by the defence and gave up Sh. Tahir Ali, Muhammad Rafiq, Abdul Rahim and Khalid Mushtaq P.Ws. As unnecessary. He tendered in evidence the report of Chemical Examiner (Exh.P.Q.) and that of Serologist (Exh.P.R.) and closed the prosecution case. 20. Muhammad Anwar appellant, in his -statement recorded under section 342, Cr.P.C. Denied all the incriminating circumstances figuring against him in the prosecution evidence and alleging his false implication, professed innocence. Describing himself as a scapegoat, he stated that he belonged to a respectable and educated family and never indulged in narcotics business but the local police compelled him to deal in contrabands and pay them monthly and since he refused to oblige them, they felt offended and got him first detained under M.L.O. For 3 months and on a writ petition filed by him when he came out of the, jail only two or three days prior to this occurrence, they involved him in this case. He further stated that he had no grudge or animus against the Excise Department, particularly against the deceased, and he never conducted any raid on him nor got any case, registered against him and the story of raid on 1-10-1986 had been concocted in order to provide motive. According to him, at the time of alleged raid the deceased was not aware of the fact that he had come out of the jail because ordinarily he was to be released on the expiry of his detention on 30-10-1980 but he was released earlier due to the writ petition filed by him. He alleged that the deceased had in fact been attacked by some unknown persons and later died in Nishtar Hospital, Multan, due to the negligence of the doctors. Asserting his alibi, he alleged that on his release from jail he went to Muzaffargarh to obtain money from his cousin Tariq Mahmood and then he went to Faisalabad to bring his family and on 2-10-1982 when he reached Alipur, he was taken to the police station by a constable where he was confined in a room for a few days and then he was detained in the police lock-up. According to him, he did not know Muhammad Aslam P.W. Who had become false witness at the instance of police and Excise Department. He produced evidence and examined four witnesses. He, however, declined to appear as his own witness under section 340(2), Cr.P.C. 21. Tariq Mahmood, S.D.O. Electricity (WAPDA), 2nd Sub-Division A, Muzaffargarh (D.W.1) deposed that the appellant was his maternal-cousin and belonged to a respectable and educated family,,
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having two specialists in medical profession and two engineers as his near relations. He gave details of his agricultural land, which he inherited after the death of his father in February, 1983. He further deposed that after termination of his detention under the M.P.O. About two or three days prior to the occurrence he came to him and after obtaining Rs.3110 went to Faisalabad to bring his family and on his way back to Alipur he broke his journey in the evening of 2nd October, 1980 and after staying for a while with him at Muzaffargarh, went to Alipur. According to him, on 3-10-1983 the wife of the appellant came and told him that he had been arrested by the police as an accused in a murder case. In the cross-examination, he admitted that he and other high placed relations of the appellant detailed above all belonged to Jamat-i-Ahmadia but denied the suggestion that he was deposing falsely on account of his relationship with the appellant and their religious and sectarial affinity. 22. Muhammad Idris, Senior Clerk of Excise and Taxation Department, Muzaffargarh (D.W.2) produced the service book (Exh.D.C.) of Ihsan Ellahi (deceased) and stated that at its serial No.9 there were signatures of the deceased. In the cross-examination he gave service particulars of the deceased with the help of the service book. In reply to a question he deposed that the complaint (Exh.P.A.) bore the signature of Ihsan. Ellahi (deceased) as he identified the same because he had remained posted at Muzaffargarh for about 4-1/2 years and on many occasions he saw the signatures of the deceased on different papers in his capacity as a Senior Clerk. In reply to another question he stated that he had been working with the deceased at Alipur for three years. The witness, on the request of the learned defence counsel, was declared hostile and with the permission of the Court cross-examined by him. He denied his suggestion that the signatures on the complaint (Exh.P.A) were not those of the deceased and he was making a wrong statement in order to support the prosecution case as the deceased belonged to his depart merit. 23. A.S.I. Mahboob Elahi of C.I.A. Staff, Muzaffargarh (D.W.3) produced Rozenamcha (Exh.D.D.) dated 1-1-986 of C.I.A. Staff, Muzaffargarh and deposing with the help of its entries, he stated that on 1-10- 1986 at 8-40 a.m. A.S.I. Muhammad Rafiq of C.I.A. Staff, Muzaffargarh entered his departure alongwith five constables. In reply to a question of cross-examination by the learned prosecutor he stated that, as per entry No.5 of the Rozenamcha, A.S.I. Muhammad Rafiq accompanied by Jafar Khan Inspector and constables left for Alipur in order to help Excise Inspector (deceased) at Alipur in response to a secret information that business of `Charas' and opium was going on there. According to him, A.S.I. Muhammad Rafiq entered his arrival back on 2-10-1986 at 12-30 p.m. And as per entry in diary No.3 (Exh.D.W.3/A), A.S.I. Muhammad Rafiq alongwith Jafar Khan, Excise Inspector (deceased) and the constable had raided the house of Muhammad Anwar son of Bashir Ahmad on 1-10-1986 at Alipur but having come to know about the raid he had fled away after locking out his house. The last witness was H.C. Manzoor Hussain of Police Station Saddar, Alipur (D.W.4). He produced the Roznamcha of the police station pertaining to the month of October, 1986, and with the help of its entries he deposed that, as per entry No.12, dated 2-10-1986, the statement of Ihsan Ellahi (deceased) had been received in the police station at 9-30 a.m. For the registration of a formal F.I.R. With no further details about the. Names of the accused, the weapon of offence, the witnesses and the place of occurrence. He gave some more details of the entries of the Roznamcha in the examination-in-chief as also in the cross-examination. 24. The appellant, after examining the above-mentioned four witnesses, tendered in evidence the death certificate (Exh.D.E.) of his father, a copy of the writ petition (Exh.D; F.), his written statement and closed his evidence. 25. Sardar Abdul Latif Khosa Advocate, the learned counsel for the appellant and Mr. Nafis Ahmad Ansari, learned A.A.-G. Have addressed arguments. Commenting on the prosecution case in general terms, the former submits that the local administration had made'-the life of the appellant
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miserable and went to the extent of even getting him detained under the Maintenance of Public Order Ordinance for a period of three months and had the High Court not come to his rescue in the exercise of its writ jurisdiction, he would have been languishing in jail for an indefinite period and when he came out of the' prison, the local administration within two or three days of his release, got him falsely implicated in this case. 26. Criticising the statement (Exh.PA.) of Ehsan Elahi (deceased) recorded by A.S.I. Abdul Hamid (P.W.9), the learned counsel submits that it was recorded by the A.S.I. Without obtaining opinion of the doctor, who was readily available in the hospital, about his…
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