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Petitioner: MAZHAR IQBAL and another VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Jawaid Nawaz Khan Gandapur, Tariq Pervez Title: MAZHAR IQBAL and another vs THE STATE Case No.: Criminal Appeal No,7 of 1993 Date of Judgment:1997-04-04 Reported As: 1998 P Cr. L J 858 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' JAWAID NAWAZ KHAN GANDAPUR, J.--- Mazhar Iqbal appellant (who died in the Jail during the pendency of this appeal) and Muhammad Siddique appellant were both put on trial in the Court of Additional Sessions Judge, Haripur in case registered under section 302/34, P.P.C. Vide: F.I.R., No,465, dated 13-6-1990 lodged in Police Station, Haripur. 2. After the conclusion of the trial the Additional Sessions Judge by his judgment, dated 3-2-1993, held both the accused guilty and convicted them. He sentenced Nazhar Iqbal appellant (now deceased) to death whereas Muhammad Siddique appellant was sentenced to life imprisonment. 3. Hence the appeal. 4. The trial Court has also sent Murder Reference No,1 of 1993 for the confirmation of the death sentence awarded to Mazhar Iqbal accused appellant (deceased). 5. Additionally, the complainant, not content with the sentence awarded to Muhammad Siddique has filed Criminal Revision No,9 of 1993 wherein he has prayed that the sentence of life imprisonment be enhanced and the appellant be sentenced to death. He has further prayed that compensation, as envisaged under section 544-A, Cr.P.C., be awarded to the heirs of the deceased including the complainant. 6. It may be stated, at the out-set, that during the pendency of this appeal (pending disposal for the last more than three years) appellant Mazhar Iqbal died in the Death Cell in March, 1993. The appeal filed by him, therefore, has become infructuous and accordingly stands abated. The Murder Reference No,1 of 1993 also relates to him, therefore, the same having become infructuous as abated, hence dismissed.
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7. We are now left with the Criminal Appeal filed by Muhammad Siddique appellant and the Criminal Revision filed by the complainant for the enhancement of sentence awarded to Muhammad Siddique appellant. Since both are inter connected, therefore, we propose to dispose of the same by this single judgment. 8. Stated briefly, the facts of the case, as disclosed in F.I.R. No,465, dated 13-6-1990 registered in Police Station, Haripur are that on the eventful day Dilawar Shah F.C. (P.W.7) and Abdur Rashid F.C. (P.W.8), attached with the Court of Extra-Assistant Commissioner (I), Haripur were on duty outside the Court. At about 7-30 a.m., Zafar Ali deceased son Abdul Hameed resident of Mankarai, Tehsil and District Haripur, alongwith his two companions, arrived there in connection with the case registered against him under section 307, P.P.C. Which was pending disposal in the Court of the said Extra-Assistant Commissioner (I). 9. Muhammad Siddique, appellant had Mazhar Iqbal appellant (deceased), residents of village Mankarai also came to the Court. Both of them had come to the Court in connection with the same case. Since both the parties used to come to the said Court, therefore, they were known to the two eye-witnesses (including the complainant) i,e,, Dilawar Shah F.C. (P.W.7) and Abdur Rashid F.C. (P.W.8). 10. According to the prosecution version, within the sight of F.C. Dilawar Shah (P.W.7) and F.C. Abdur Rashid (P.W.8) Mazhar Iqbal appellant took out .32 bore revolver and fired four shots at Zafar Ali (deceased). Muhammad Siddiuq appellant, on the other hand, gave a 'Churri' blow to Zafar Ali. In short, Zafar Ali after having received the bullet injuries on his chest, neck, at the back of his right palm, on the front of neck and a 'Churri' blow on the left side of his belly, was grievously injured/wounded and resultantly fell on the ground. 11. Both the accused, after accomplishing their task, tried to escape from the scene of occurrence. However, they were apprehended chased by P.W.7 and P.W.B. Mazhar Iqbal appellant was apprehended by Abdur Rashid F.C. (P.W.8) alongwith the crime weapon (Pistol) whereas the other culprit namely Muhammad Siddique appellant was apprehended by Dilawar Shah F.C. (P.W.7) on the spot alongwith blood-stained 'Churry'. In addition to P.W.7 and P.W.8 the occurrence was seen by other persons who were present in the premises of the Court, including the two companions of Zafar Ali deceased. 12. The deceased, then injured seriously, was immediately rusehed to the Hospital for medical treatment. Dr. Noor Wahab Shah, Medical Officer (P.W.11) after providing necessary First Aid treatment to him, referred him to the District Head Quarter Hospital, Abbottabad. Since the injured was in precarious condition he succumbed to his injuries and expired while on his way to Abbottabad. Resultantly, he was brought back to the Civil Hospital, Haripur. 13. The autopsy on his dead body was then conducted by the same Medical Officer (P.W.1 1). 14. The killing was reported to the Police on the same day and a case was registered vide: F.I.R. No,465, dated 13-6-1990 under section 302/34, P.P.C., against both the appellants. 15. The motive, as alleged in the F.I.R., is stated to be the case pending against the deceased under section 307, P.P.C. 16. On the following day both the appellants were produced before Mr. Muhammad Nasim M.I.C. (P.W.5) who recorded their confessional statements (Exh.P.W.5/2 and Exh.P.W.5/5). 17. After the completion of the usual Police investigation complete challan was submitted against the appellants in the Trial Court. 18. The charge, against the accused, was framed on 10-2-1991 which was read over and explained to the appellants who pleaded not guilty and claimed trial. 19. In order to prove its case against the appellants the Prosecution produced the following witnesses:--- ' P. W. 1 Raja Pervez son of Raja Khan Bahaudar.
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' P.W.2 Muhammad Saleem son of Abdul Aziz. ' P.W.3 Muhammad Ilyas Khan Muharrir A.S.I. P.S. Haripur. ' P.W.4 Muhammad Banaras Trafic H.C. Abbottabad. ' P.W.5 Muhammad Naseem Khan M.I.C. Haripur. ' P.W.6 Abdul Latif F.C. No,447, Police Station, Haripur. ' P.W.7 Dilawar Shah F.C. No,767 Process Server EAC-I Haripur. ' P.W.8 Abdul Rashid F.C. No,731 Police Line Abbottabad. ' P.W.9 Abdul Salam son of Nawab Khan. ' P.W.10 Muhammad Fareed Khan, Inspector S.P.I. Branch Peshawar. ' P. W. 11 Dr. Noor Wahab Shah, M.O. Incharge Civil Hospital Haripur. ' P.W.12 Muhammad Nazir Khan A.S.-I. No,21 Trafic Police, Haripur. 20. The statement of Mazhar Iqbal appellant (now dead) was recorded under section 342, Cr.P.C. On 22-10-1991. It is to the following effect:--- Statement of Mazhar Iqbal son of Fazal Dad caste Awan aged about 25 years resident of Mankarai accused under section 342, Cr.P.C. Q. Is it correct that Muhammad Siddique, your co-accused, is your maternal Uncle? A. Yes. Q. Is it a fact that deceased Zafar Ali was charged for attempting at the life of your maternal-uncle Abdul Khalil brother of your co-accused and on the day of occurrence the deceased had come to the Kutchri premises for attending the Court? A. It is correct. Q. It is in evidence that on 13-6-1990 at 07-30 hours in the premises Kucheri Haripur you alongwith your co-accused and in furtherance of your common intention attempted at the life of deceased Zafar Ali with revolver, firing at him effectively, who succumbed to his injuries on the way, while he was being shifted to D.H.Q. Hospital, Abbottabad? A. It is incorrect. In fact, Zafar Ali, deceased, after having an altercation with us i,e,, myself and Siddique, pressuring for compromise ih case under section 307, P.P.C., against him, attempting at our lives by firing two shots from his revolver. Fortunately, the bullets did not fire and we managed to get hold of him, so that, he could be prevented from firing further. It was, during the scuffle, wherein, Siddique was holding him and I was trying to snatch the revolver that the firing continued under the pressure of his finger on the trigger. Due to that firing he got injured. We did not cause any injury to him. Nor we initiate the fight. We were making hectic efforts to save ourselves from his determined attack. Zafar Ali has lost his life by his own hands. We are innocent. Q. It is in evidence that on the same date, time and place you, alongwith your co-accused in furtherance of your common intention attempted at the life of Zafar Ali, deceased, with churri by causing him injury who succumbed to injuries on the way when he was being taken to the Hospital? A. It is incorrect. Siddique was empty handed and so was I. There is no injury on the person of deceased caused with churri or any sharp-edged weapon, the injury recorded in the documents has been assigned by the Doctor, in collusion with the complainant party and the police just to trap Siddique. The body of War All can be exhumed and get inspected; it would certainly show no sharp weapon injury on his person. In any way, I and Siddique fell victims to aggression of Zafar Ali deceased and caused him no injuries at all. There is no evidence on record acceptable according to the established norms of law and justice. It is all biased and truped up evidence of either the police witnesses or the relations of the deceased who could never be present on the spot. We have been falsely implicated for colateral reasons. We are absolutely innocent. Q. It is in evidence that on 13-6-1990 at 07-30 hours in the premises of Kutchari Haripur you alongwith you co-accused and in furtherance of your common intention caused murder of Raja Zafar Ali by firing and stabbing at him. What have you to say?
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A. It is incorrect. We have been falsely implicated. Zafar Ali died of the injuries caused to him under his own hands. There is no independent evidence on the record against us. We are innocent. Q. It is in evidence that on the same day you were apprehended near the place of occurrence while you were decamping from the spot with the revolver, weapon of the offence, by P.W. Abdur Rashid. What have you to say? A. It is incorrect. In fact, after, Zafar Ali fell on the ground, I removed the revolver in question from his hands and I, alongwith Siddique, ran to Police Post, City Haripur. The revolver was handed over to the Incharge Police Post, Haripur and the occurrence was narrated by us. There was no police man present on the spot at the time of occurrence. Thus, question of my being caught by any policeman cannot arise. Story of F.C. Rashid and other police witnesses had been made up by the police in collusion with the complainant party subsequently. The revolver in question belonged to deceased Zafar Ali. Q. It is in evidence that on the same day, time and place when you were apprehended by P.W. Abdur Rashid F.C. Near the scene of occurrence he recovered .32 bore revolver Exh.P.2, four empties freshly discharged from the pulli of the revolver Exh.P.3, two missed cartridges P.4 from you and he also recovered 9, .32 bore live cartridges P.5 during your personal search which, he lather on, produced before Muhammad Nazir A.S.-I., who took it into possession through the recovery memo. Exh.P.W.4/1. What have you to say? A. It is incorrect. Neither F.C. Abdur Rashid was present on the spot nor he caught me, thus, question of the alleged recoveries cannot arise. However, at the Police Post Haripur when I handed over the revolver to Incharge Police Post, he took out from the said revolver two missed cartridges and four empties. What transpired between the Investigating Officer and F.C. Rashid thereafter I am not aware of that. I was kept in Police Post and the police went away who did not perform any act of investigation in my presence. Recoveries, as attributed to me, are the result of absolute fabrication and falsehood. Q. It is in evidence that on the same date, time and place your co-accused Muhammad Siddique :Is also apprehended near the scene of occurrence by P.W. Dirawar Shah F.C. While he was decamping with blood-stained Churn the weapon of offence which he recovered from your co-accused Muhammad Siddique and produced Exh.P.1 the bloodstained Churri to Muhammad Nazir S.-I. Who took into possession the same through recovery memo. Exh.P.W.4/1. What have you to say? A. It is incorrect. The details have been given above. Neither F.C. Dilawar nor any other police was present on the spot at the time of occurrence. Siddique was empty handed even after the occurrence, since, I was holding the revolver used by the deceased. Siddique alongwith me went to Police Post, Haripur where we were detained. We are not aware of what transpired between the members of police, thereafter we are not aware. Alleged recoveries against both of us are concocted and false. ' How will you explain the position report of Arms Expert Exh.P.W.10/D-2 regarding .32 bore revolver and 4 empties? A. In fact, the question should have been directed to Zafar Ali deceased. Nevertheless, the report whether termed negative or positive, has no reflection upon me. The four empties got fired by the same revolver at the hand of Zafar Ali deceased. Similarly, the two missed rounds were also fired under the hand of Zafar All deceased. The docket sent to the Arms Expert by the police after unconstionable delay is full of patient mala fides by its contents as well. The report not being specified about the missed rounds taken out of the chamber of the revolver in question by the police would cast grave doubt on the truthfulness of the report whatever its contents and whoever may be its victim. Q. It is in evidence that the Investigating Officer despatched recovered blood- stained churri, weapon of the offence, alongwith the garments of the deceased, blood-stained
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earth and sand recovered from the spot to the chemical examiner whose report is Exh.P.W.10/2 and is positive. What do you say about it? A. It is not uncommon for the police to plant weapons like Churies and smear those with the blood of the deceased from his body or his clothes. The Chhuri has no relevance to me and the co- accused with me. Thus, the positive report of aforensic Science laboratory has nothing incirminating against us. Q. It is in evidence that on 14-6-1990 you made volunteer confessional statement before M.I.C. Muhammad Naseem Khan P.W. And signed the confessional statement Exh.P.5/2 after admitting it correct before him? A. I was subjected to inhuman treatment at the hands of the police who also nurshed grudge against me previously. I had stated the same thing before the Magistrate what I had conveyed to the Incharge Police Post Haripur soon after the occurrence. I was made to sign a statement not presenting true version given by me but recorded at the instance of the police. Thus, the said statement can neither be termed voluntarily nor it is true wholly by its contents. Q. It is in evidence that on 14-6-1990 your co-accused Muhammad Siddique also made a volunteer confession Exh.P.W.5/5 before M.I.C. Muhammad Nasim Khan P.W. What have you to say? A. We both were kept in Police Post Haripur initially and then in the Police Station and subjected to same torture treatment. However, what Siddique stated before the Magistrate and under what circumstances, it may be asked from him. Q Why the P.Ws. Have deposed against you? A. Admittedly on record, there were many persons from public present at the time of occurrence, yet, not a single one has come forward to depose against me which is the solid proof of false depositions of police witnesses and a solitary witness closely related to the deceased. There is no independent evidence against me which could be accepted according to law and justice. The P.Ws. Are interested, enimical and trumped up. Hence, there evidence is non entity according to the established principles of evidence, which makes it a case of no evidence coming forth from unimpeachable source. I was victim of the occurrence at the hands of Zafar Ali and committed no offence. I am innocent. Q. What is your statement and why are charged? A. I am innocent and have been falsely roped in. I have already provided sufficient details hereiubefore. Q. Do you wish to produce defence evidence? A. Yes, I would be requesting the Honourable Court to summon Moharrir Police Station Haripur and Moharrir Police Post Haripur alongwith Daily Diary registers of 13-6-1990 as C.Ws./D.Ws. As the Honourable Court may deem fit. Q. Do you wish to appear as you your own witness on oath as required under section 340(2), Cr.P.C. A. Yes. Q. Do you add anything in your statement? A. I would explain tatters further in my statement under section 340(2), Cr.P.C. ' R.O. & A.C. (Sd.) 22-10-1991 A.S.J.-I, Haripur. ' Accused Mazhar Iqbal Certified under section 364, Cr.P.C. A.S.J.-I. 21. The statement of Muhammad Siddique appellant was recorded under section 342, Cr.P.C. On 11- 11-1991 which is to the following effect:--- Q. Is it fact that Zafar Ali deceased was charged for attempting at the life of your brother Abdul Khalil and on the day of occurrence he had come to Kutcheri premises for attending the Court. What have you to say? A. Yes. Q. It is in evidence that on 13-6-1990 at 07-30 hours in the premises of Kutcheri Haripur you alongwith your co-accused and in furtherance of your common intention attempted at the life of
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deceased Zafar Ali with revolver by firing at him effectively who succumbed to injuries on the way while he was being shifted to D.H.Q. Hospital, Abbottabad. What have you to say? A. It is incorrect. I was empty handed and remained so until I reported to Police Post Haripur alongwith Mazhar Iqbal. The deceased firstly abused us and in consequence of an altercation between us took out his revolver and fired upon us. In order to save ourselves we attempted to catch hold of the deceased during which the revolver was being fired because of struggle between Mazhar lqbal and deceased. I and my co-accused have neither killed the deceased nor caused him any injuries. In fact, our lives were put to danger of death by the deceased who wanted to pressurise us to compromise the case with him. The allegations against us of causing any harm to the deceased are false and fabricated between the complainant party, the police and the doctor as an afterthought. Q. It is in evidence that on the same day, time and place you alongwith your co-accused in furtherance of your common intention attempted at the life of Zafar Ali deceased with Chhuri by causing him injuries who succumbed to injuries on the way while he was being shifted to D.H.Q Hospital, Abbottabad. What have you to say? A. It is incorrect. I never caused any injury to the deceased nor had any Chhuri with me at the relevant time. The Chhuri may be invention of the police in collusion with doctor who was deeply interested to the deceased and against myself and my tribe, The deceased could not have any injury with chhuri on his body. The body of the deceased can be exhumed to see that the allegations are false and fabricated. Q. It is in evidence that on 13-6-1990 at 07-30 hours in the premises of Kutcheri Haripur you alongwith your co-accused and in furtherance of your common intention committed murder of deceased Zafar Ali by firing and stabbing him. What have you to say? A. It is incorrect. The deceased attempted to shoot both of us but we managed to escape because the firing by the deceased did not prove fruitful by missfiring. Thereafter, during the struggle between ivlazhar Iqbal and the deceased the revolver went on discharging while Mazhar was trying to snatch it from the deceased who was attempting to fire at Mazhar Iqbal. We have committed no crime and were victim of aggression. Q. It is in evidence that on the same day, time and place you were apprehended near the scene of occurrence by Dilawar Shah F.C. P.W. While you were decamping from the spot with blood-stained Chhuri weapon of offence Exh.P.1 which he recovered from you and produced to Muhammad Nazir A.S.-I. Who took into possession the same through recovery memo. Exh.P.W.4/1. What have you to say. A. It is incorrect. I never had any chhuri with me at the relevant time. After Zafar Ali had fallen on ground I alongwith my co-accused took the revolver from his hand and went to Police Post Haripur and reported the occurrence. There was no police constable at the spot, thus, question of catching me on the spot by any policeman could not arise. The assertion on the part of said F.C. Is aboslutely false. Otherwise, there should have been blood spots seen by the Investigating Officer on my person, my clothes, person of the said F.C. And clothes of the said F.C. Imputation of chhuri and corresponding injuries to me is an afterthought planned by the police, complainant party with the support of the doctor. Q. It is in evidence that on the same day, time and place your co- accused Mazhar lqbal was also apprehended by Abdur Rashid F.C. Near the scene of occurrence while he was decamping from the spot and he recovered .32 bore revolver Exh.P.2, four empties freshly discharged Exh.P.3 two missed catridges Exh.P.4 and nine live cartridges Exh.P.5 from him which he later on produced to Nazir A.S.-I. Who took into possession the same through memo. Exh.P.W.4/1. What have you to say? A. It is incorrect. The reply in detail has been made in foregoing answers as well. I alongwith Mazhar Iqbal ourselves went to Police Post Haripur and reported the occurrence to the Incharge Police Post. We handed over the revolver in question belonging to the deceased and fired by the deceased during the struggle to the Incharge Police Post. We were not allowed to go anywhere thereafter by
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the police. As such, whatever police has imputed to us in this respect is untrue and of their own making. Q. It is in evidence that Investigating Officer despatched the recovered blood-stained chhuri weapon of offence alongwith the garments of deceased, blood-stained earth and sand to chemical examiner whose report is Exh.P.W.10/2 and is positive. What have you to say? A. It may be known to the Investigating Officer from where he brought chhuri and got it blood- stained. As the Investigating Officer alongwith the Doctor have acted as a party with the complainant side, there could easily obtained the blood stains of the deceased from his body on any Chhuri and sent that for the chemical analysis. Whatever the repett of the expert, it has no reference to any act on my part. Q. It is in evidence that the Investigating Officer had despatched the recovered revolver and empty to arms expert whose report is Exh.P.W.10/D-2 and is in positive. What have you to say? A. The report with respect to the empties may be correct since, the revolver kept discharging during the struggle between the deceased and Mazhar Iqbal. However, report of the expert with respect to two missed cartridges, at the face of it, is mala fide tentitious at the instance of the police which would operate against the veracity of the entire report of the arms expert, it becomes essential that he should summoned by the Court to explain and satisfy as to why he could not make conclusive report about the missed two cartridges. Such a report could have no legal value which also reflects on partisan behaviour of the expert at the instance of the police. Q. It is in evidence, that on 14-6- 1990 you made a volunteer confessional statement Exh.P.W.5/5 before M.I.C. Haripur. What have you to say? A. I was subjected to unbearable torture by the local police who wanted me to make a statement before a Magistrate as they liked. It was beyond my ignorance to resist the police any more. The statement attributed to me is not wholly true. However, I did state therein that the deceased had fired upon me and my co-accused which part alone is of my own accord. As my co-accused had not fired at the deceased, I could not falsely implicate anything to him. The role attributed to me in the said statement is result of police coercsion, duress and torture. I have given. The true account to day before the Court in my answers to the foregoing questions. Q. It is in evidence that Mazhar Iqbal ydurs co-accused also made a confessional statement before M.I.C. What have you to say? A. I know only this much that Mazhar Iqbal was meted out similar treatment by the police as it was done to me. Beyond that the question may be directed to Mazhar Iqbal for answer. Q. Why the P.Ws. Have deposed against you? A. There is no independent witness examined against me before the Court. The Court premises being public place and overcrowded by persons from various walk of life at the relevant time, only the policeman and one odd individual related to the deceased have been trumped as P.Ws. It could have been demonstrably proved before the Court had I been allowed through my present counsel to cross-examine further such trumped up witnesses of the police. The witnesses are not the witness of occurrence. They have been brought up only to support a…
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