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Petitioner: AISH MUHAMMAD VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Munir Ahmed Mughal Title: AISH MUHAMMAD vs THE STATE Case No.: Criminal Appeal No,57 of 1994 Date of Judgment:1999-03-09 Reported As: 1999 YLR 2734 Result: Order accordingly
JUDGMENT
JUDGMENT ' This order will dispose of Criminal Appeal (No,57 of 1994) filed by Aish Muhammad against the judgment, dated 6-2-1994' passed by learned Additional Sessions Judge, Faisalabad, whereby the appellant was convicted under section 302-C; P.P.C., for 'catising the murder of Mushtaq Ahmad and Mst. Sheeman (the real daughter of the appellant), and sentenced to 20 years' R.I. Benefit of section 382-B, Cr.P.C., was also given. Co-accused Rashid Ahmad, Abdur Razzak and Muhammad Shafiq were acquitted. The complainant has also filed a Criminal Revision No, 152 of 1995 against the said acquittal order., which is also being disposed of with this judgment. 2. Briefly stated the background of the case is that on 1-1-1992 at 8-15 p.m. Complainant Khushi Muhammad son of Abdul Ghafoor, the real brother of Mushtaq Ahmad deceased was sitting in his 'Baithak'. Suddenly Mushtaq Ahmad got up and went to the village. He did not turn up after the lapse of considerable time. It perplexed the complainant. He began to make his search in the village. Despite his efforts he could not get the clue. He sought .Assistance of his maternal cousin Munir and Zulfiqar. When they reached near the house of Abdul Sattar son of Bagh Ali Khokhar in Bhattiwala Bazar of the village, they heard commotion from inside the house They entered therein and saw Mushtaq Ahmad and Mst. Sheeman daughter of Aish Muhammad present in the Kotha'. Aish Muhammad son of Mohy-ud-Din armed with Chhura and Muhammad Shafique son of Muhammad Hussain and Rashid Ahmad alias Mehmooda son of Ibrahim both empty handed were also there. In the vision of witnesses, Muhammad Shafique and Rashid Ahmad caught hold of Mushtaq Ahmad, Aish Muhammad city neck with the Chhura. Thereafter, Aish Muhammad caught hold of Mst. Sheeman by her hairs, put her down to the ground and cut her neck with the said Chhurra. The witnesses raised alarm. The accused succeeded to decamp from the scene
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awarding threats to the P.Ws. Both Mushtaq Ahmad and Mst. Sheeman took their last breaths at the spot. The motive stated is that, Aish Muhammad after seeing Mushtaq and Mst. Sheeman in a blame-worthy state had slaughtered them with the facilitation of Shafique etc. 3. The matter was reported by Khushi Muhammad to Muhammad Ashiq, the then Inspector/S.H.O. Police Station . Jaranwala (P.1v'.11), who came across to the complainant near to - Pull Dhaisian' at 7-30 a.m. On 2-1-1992 present on patrol duty there. After recording (Exh.P.A,) the Investigating Officer sent it to the police station for formal registration of case F.I.R. (Exh.P.A./1). F.I.R. Was recorded by Munir Hussain H.C. No,3544 (P.W.1) on 2-1-1992 at '8-30 a.m. The Investigating Officer proceeded to the place of occurrence and prepared inquest report (Exh.P.K.), injury statement (Exh.P.K./1) in respect of Mushtaq Ahmad deceased, inquest report (Exh.P.L.) and injury statement (Exh. P. L. /1) with regard to Mst. Sheeman deceased, sent both the dead bodies for autopsy examination in the escort of Muhammad Ali constable No,3850 to the mortuary, Jaranwala, collected blood-stained earth from the place of dead bodies of Mushtaq and Mst. Sheeman and made into sealed parcels vide memos. (Exh.P.F.) and (Exh.P.G.) respectively. These memos. Were witnessed by Munir Ahmad and Zulfiqar P.Ws. Recorded the statements of P.Ws. Under section 161, Cr.P.C., took into possession the last worn - clothes of the deceased vide themes. (ExhiP.D,).And (Exh.P.E.) respectively, got prepared site plans (Exh.P.B.) and (Exh.P.B./ I) from Draftsman and recorded notes in the red ink. The investigation was transferred to Khizar Hayat S.1. (P.W.12) on 10-1-1992 submitted report under the order of D.S.P./S.D.P.O., Jaranwala being In charge Circle Staff Jaranwala. He also visited the site, recorded statements of the P.Ws. Under section 161, Cr.P.C., besides the other persons produced before him by the parties, arrested accused Aish Muhammad, Shafique, Rashid and Abdur Razzaq on 26-1-1992, took into possession vide memo. (Exh.P.C.) from an earthen-bin lying in his residential room and was taken into a sealed parcel. Registered another case against Aish Muhammad under section 13/20/65, sent the crime weapon to the office of Chemical Examiner for analysis through Muhammad Ilyas constable, submitted the file to the S.H.O., Police Station Jaranwala. Who submitted the Report under section 173, Cr.P.C., to the Trial Court. 4. The accused were formally charged for offence under section 302/34, P.P.C., to which they pleaded not guilty and as such claimed trial. 5. To prove its case the prosecution examined. 13 witnesses, namely, Murur Hussain (F.W.1), Muhammad Ilyas (P.W.2), Aurangzeb (P.W.3), Muhammad lqbal (P.W.4), Muhammad Ali (P,W.5), Khushi Muhammad (P.W.6), Zulfiqar (P.W.7), Din Muhammad (P.W.8), Muhammad Ramzan (P.W.9), Dr. Muhammad Afzal (P.W.10), Muhammad Ashiq (P.W.11), Khizar Hayat ( P. W.I2 ), Mehrban ( P. W .13) and produced the statement of the complainant as (Exh.P.A.), F.I.R. (Exh.P.A./1), site-plan (Exh.P.B.),, rough site-plan (Exh.P.B./1), recovery memo. Of crime weapon (Exh.P.C.), recovery memo. Of last worn clothes of Mushtaq Ahmad deceased (Exh.P.D.), recovery memo. Of last worn clothes of Mst. Sheeman deceased (Exh.P.E.), recovery memo. Of blood-stained earth of Mushtaq Ahmad (Exh.P.F.), recovery memo. Of blood-stained earth of Mst. Sheeman (Exh.P.G.), post-mortem report of Mushtaq Ahmad is (Exh.P.H.), and its rough sketch is (Exh.P.H./1), postmortem examination report of Mst. Sheeman is (Exh.P.1.) and its rough sketch is (Exh.P.I./1), inquest report (Exh.P.K.), injury statement (Exh.P.K./1), inquest report of (Exh.P.L.), injuries statement (Exh.P.L./1), Report of Chemical Examiner regarding Shalwar (Exh.P.M.), repoint of Chemical Examiner regarding swabs of Sheeman (Exh.P.N.), Report of Chemical Examiner regarding blood-stained of Mushtaq Ahmad and Mst. Sheeman deceased (Exh.P.O.), Report of Chemical Examiner regarding blood-stained Chhura (Exh.P.P.), report of Serologist regarding blood-stained earth (Exh.P.Q.), and report of Serologist regarding blood-stained Chhura (Exh.P.R.). Statements of Khushi Muhammad (Exh.P.A.) and Zulfiqar Ali (Exh.D.B.) were brought on record. 6. TO sift the seed from chaff, the scrutiny and re-appraisal of the evidence on record is necessary which is made in the following paragraphs.
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7. Khushi Muhammad (P.W.6) gave the eye-witness account, which finds reflection in the narration of the prosecution case. During the cross-examination he deposed that he recorded the name of Abdur Razzak accused in his complaint (Exh.P.A.) but was confronted that it was not so recorded there. He volunteered that the police did not record his natne. He stated before the police that Sheeman was caught hold by Shafique and Razzak - accused, confronted not ;a recorded. Again said that he did not name these accused, when he recorded (Exh.P.A.). In (Bech,P.A,) he stated that it was Aish Muhammad, who threw Mst. Sheeman the ground catching her from hairs and thereafter slaughtered her. He admitted that it is correct that in between his house and the house of accused residential houses are situated. Zulfiqar and Munir are residing at a distance of one !Hate from his house, Four/five minutes prior to 8-15 Zulfigar and Munir came to rook after his ailing mother. He did not state before the police that Aish had suspicions about the illicit relations between Mushtaq and Sheeman. He did not state before the police that Aish saw Mushtaq and Mst. Sheeman in objectionable position and for that killed them. When confronted he volunteered that he stated about the suspicion of their illicit relations before the police, His brother Mushtaq deceased was a shop-keeper of Keryana and was married and father of four children. The daughter of Aish accused Mat. Sheeman was virgin. He denied the suggestion that Abdul Satter Khokhar is brother of Aish Muhammad accused. The witness further stated that they had no previous enmity with the accused. He also deposed that, earlier to it, if his brother separated from him, he was not used to search for him. He himself had been searching for about fifteen. Minutes. Then he took in his company Zulfigar and Munir P.Ws. He searched .For Mushtaq at the Dera of Al Muhammad and Muhammad Ali Lohar. In the company of Zulfigar and Munir he searched for Mushtaq in the bazar of Bhattian. The alarm was not at its highest pitch, but it was only overheard by them. He admitted that it was correct that house of Se, witokhar was surrour residential houses. None came at the spot hearing the alarm. He also admitted that it was correct that none of the deceased was murdered before their entrance in the house. Whole of the occurrence happened within 2/2-1/2 minutes, They did not make attempt to grapple with the accused. He informed the police about the murders of his brother Mushtaq and Mst. Sheeman, When police prepared the inquest reports pertaining to the dead bodies, they asked all the facts of this case from them and they narrated all the facts to them. The eye-witnesses Munir Ahmed and Zulfiqar thumb-marked under the statements. 8. He stated that this case was investigated by various police officers, The investigation was conducted by Muhammad Ashiq Inspector, Kinzer Hayat S.I. And thereafter, investigation was verified by D.S.A. 9. The witness admitted that, it was correct that Aish Muhammad accused is father of Mst. Sheeman, Rashid alleged accused is Khalazad of Sheeman and Abdur Razzak is sister's husband of Mat, Sheeman and Shafique accused is not related to Aish Muhammad in any manner. He volunteered that Shafique is friend of Aish Muhammad. He further stated that it is correct that Shafique is like son of Aish Muhammad. He denied the suggestion that he was deposing falsely about the friendship of Shafique with Aish Muhammad. He also denied that at the time of occurrence he was not present there and was informed, about the murder of Mushtaq and Sheeman after a considerable time and for this reason the case was got restored by 111M in the following morning. Retie also denied that both Sheemao and Mushtaq were committing Zina with eveh other and they both per chance were seen h,' Aish Muhammad, accused. The with Nts statel that the honour of the daughter is the'. 1ionotir of her parents and that Zina in Islam 's major sin and that no one can ene:Jurages Zina activity. 10. In cress-examination, he ',who deposed that he did not state before the police in Exh.P.A. That Zulfiqar and Munir were sitting with him in his 'Baithak' along with Mushtaq. He did not state before the police while recording Exh.P.A. That Shaifque and Aish Muhammad were fast friends. He denied
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the suggestion that while going out of the village first comes the land of Shafique accused and then of Aish Muhammad, accused. While passing through the lands of Aish Muhammad, one can go to the land of Shafique after crossing a watercourse. If one have to go to the land of Shafique on a bullock cart he had to take round of the whole land and not through the land of Aish Muhammad. He also denied the suggestion that one year earlier to the occurrence Shafique made an attempt to pass through the land of Aish Muhammad taking his bullock cart, for that they both confronted and have no speaking terms. He admitted that, he and Mushtaq used to alive in one Ihata. They took meals at 4/4-30 p.m. On that day. He appeared before Khizar Hayat Khan, In charge C.I.A. Staff Jaranwala. He narrated the whole story to him. It is incorrect to suggest that he made statement before Khizar Hayat that on the eventful night Mushtaq and Aish Muhammad were at the shop of deceased, Mushtaq. Electricity went on, when Mushtaq went outside leaving behind Aish Muhammad in his shop on the pretext to come back very soon. It is incorrect that he had stated before Khizar Hayat Khan that one child came after one and half an hour and asked Aish Muhammad to come out from his shop. He did not state that after departure of Aish Muhammad from his shop he closed the shop and went to his house. He denied the suggestion that he had stated before Khizar Hayat Khan that as Mushtaq did not turn up till 12-00 p.m. Then he went to search him in the company of Zulfiqar and Munir but he was confronted with Exh.D.A. Where he had so stated. He denied this suggestion that Razzaq was named as accused after 20 days of the occurrence wrongly and improperly. 11. Zulfiqar (P.W.7) deposed that, Khushi Muhammad complainant is his maternal cousin. Mushraq deceased was also his maternal cousin and brother of Khushi Muhammad complainant. One year and 11-1/4 months ago at about 8/8-1/4 p.m. Khushi Muhammad complainant was sitting with his brother Mushtaq when he and his brother Munir Ahmad-went there. They went there to ask for the ailing mother of Mushtaq, his aunt. Mushtaq got up and went to the village. He and Munir Ahmad also came back to their house. At 8-30 p.m. Khushi Muhammad came to them. And stated that Mushtaq Ahmad had not come back. They went along with him for his search. When they went in front of the house of Abdul Sattar Khokhar passing through the bazar of Bhattian, they heard the alarm of Mushtaq Ahmad deceased. They entered into the house of Abdul Sattar and saw in the electricity light Mushtaq and Mst. Shameen inside the room. Besides them Aish Muhammad armed with Chhurra, Shafique, Razzak and Rashid were also present thereby empty handed. Shafique, Razzak and Rashid caught hold of Mushtaq Ahmad. Aish Muhammad cut the throat of Mushtaq in their vision. Thereafter, Aish Muhammad threw his daughter to the ground catching her from hairs, Shafique and Razzak caught hold of her and Aish Muhammad cut the neck of Mst. Sheeman with Chhurra. Both' Mushtaq and Sheeman died at the spot. They raised alarm. Accused ran away from the site after threatening them. The occurrence was seen by him, Munir and Khushi Muhammad complainant. He joined the investigation when police came at the spot. Police took into possession in his presence the blood-stained earth of Mushtaq Ahmad deceased vide memo. Exh.P.F. This memo. Was signed by him and his brother Munir Ahmad. Thereafter, the police took into possession the blood-stained earth of Sheeman deceased which was taken into possession vide memo. Exh.P.G. This memo. Was also witnessed by him and his brother. During the cross- examination, the witness deposed that he narrated before the police that they went to the house of Khushi Muhammad to. Look after their ailing aunt, but he was confronted with Exh.D.B. Wherein it was not so recorded. He further deposed that he had stated before the police that after looking their ailing aunt, he and Munir Ahmad came back to their house, Where Khushi Muhammad came to call them. On this fact also this witness was confronted with Exh.D.B. Where it was not so recorded. He also deposed that it was not stated by them before the police that they remained sitting in the Baithak of Khushi Muhammad after some time Khushi Muhammad came there and they accompanied him therefrom to make search for Mushtaq, confronted with Exh.D.B. Where it
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was recorded that Khushi Muhammad and Mushtaq deceased were sitting in the Baithak and from there Mushtaq Ahmad went towards village suddenly and after passing sufficient time he did not come back. Khushi Muhammad complainant was worried and he went in his search but deceased could not be found. In that wordiness he along with Munir Ahmad brother went with Khushi Muhammad in search of Mushtaq. He stated before the police that Razzak was also an accused, confronted with Exh.D.B. Not so recorded, he stated before the police that Razzak, Rashid and Shafique caught hdld of Mushtaq deceased prior to his murder, confronted not so recorded, volunteered that he also named lqbal, Riaz, Shafique and Rafique before the police but police did not pay heed to his statement, because the accused party was backed by a Minister. He stated this volunteered fact before the police, confronted with Exh.D.B. Not so recorded. He stated before the police that Sheeman was caught hold of by Shafique and Razzak, confronted with Exh.D.B. Not so recorded. He did not state before the police that Aish Muhammad slaughtered Sheeman and Mushtaq seeing them in an objectionable posture, confronted with Exh.D.B. Wherein not so recorded. They came back to their house within 2/3 minutes after departure of Mushtaq therefrom. They sat with their Khala for about 2/3 minutes. They came straight in front of the house of Abdul Sattar from their house passing through the Mosque Bhattian. They were not aware that Mushtaq had gone to the house of Abdul Sattar. It was alarm in high tone. As it was a winter season, hence the peoples were not over-hearing the same for their sleep in the early hours of the night after shutting their doors of the rooms. At the alarm none came from the neighbourhood and vicinity. When they entered in the house of Mushtaq was being caught by the accused and he was raising alarm. He was killed after their entrance in the house. Aish Muhammad accused is not related to them. They were just at a distance of 10/12 feet away from the accused, when in their view Mushtaq Ahmad slaughtered. Mushtaq was not son of his step-aunt. They did not try to catch hold of the accused or tried to refrain them to commit this offence. At the time of occurrence they raised alarm and called the people of the village. At their alarm the residents of the, Mohallah came there. He admitted that the statement of complainant was not recorded in their presence. Except the suspicion of illicit relations between Aish Muhammad and Sheeman there was no previous enmity between Aish Muhammad and the deceased. The case was investigated by three police officers. He joined all the investigations. Aish Muhammad was arrested by the police after 24/25 days of the occurrence. He denied the suggestion that after the occurrence Aish Muhammad voluntarily appeared before the police and stated that there he had murdered his daughter Mst.. Sheeman and Mushtaq deceased, seeing them in Zina position, out of sudden and grave provocation. He denied the suggestion that the case was got registered in the following morning as they were not aware of the occurrence. He admitted that occurrence took place at about 8.00 p.m. And it was reported to the police at 8-00 a.m. In the following morning for the simple reason that we had no conveyance to the police station. They had no enmity with any other family in the village. In their village there is no tractor, motorcycle and cycle. He admitted that the population of the village is about 5000/6000 persons. There are tractors in the village which had gone to the Sugar Mills after loading the sugarcane. He made an attempt to get clue if any tractor was available in the village. Police Station is at a distance of eight miles from their village. There is no conga available in the village. He denied that he was imported as a witness and that they involved that accused in this case falsely after consultation. 12. P.W.11 stated that he recorded complainant's statement (Exh.P.A.), sent it to the Police Station and formal F.I.R. Exh.P.A./1 was recorded by Munir Hussain H.C. No,3544 Police Station Jaranwala, whose writing and signatures he identified. He proceeded to the place of occurrence and prepared the inquest report Exh.P.K. Of Mushtaq Ahmad deceased and his injury statement is Exh.P.K./1. He prepared the inquest report of Mst. Sheeman deceased Exh.P.L. And injury statement is Exh.P.L./1. The dead bodies were sent for autopsy examinations under the escort of Muhammad AU constable
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No,3850 to the mortuary Civil Hospital, Jaranwala. He collected the bloodstained earth from the place where the dead body of Mushtaq deceased was lying, sealed into a parcel and took into possession vide memo. Exh.P.F. Attested by Munir Ahmed and Zulfiqar P.Ws. The blood-stained earth was also took into possession after making it a sealed parcel from the place where the dead body of Mst. Sheeman was lying vide memo. Exh.P.G., duly attested by, and Zulfiqar P.Ws. He inspected the place of occurrence. The statements) of , the F,Ws. Under section 161, Cr.P.C., were recorded by him. On 3.1-1992 Muhammad Ali constable after post-mortem examination` of the deceased persona handed over, to him the last worn clothes of both the deceased which were taken into possession by hin vide memo. Exh.P.D. And Exh.P.E. Respectively. These memos. Are in his hails, and bear his signatures. He had been searching for the accused but could not traced them out. The investigation of the case was transferred from him on 10-1-1992 and entrusted to Khizar Hayat S.I. Who concluded the investigation and on 8-2-1922 he being S.H.O. Police Station Jaranwala submitted the report under section 173, Cr.P.C. In cross-examination he deposed that he had correctly recorded the statement Exh.D.B. And Exh.P.A. Without any addition or omission of his own. It is correct that according to F.I.R., inquest reports and his spot inspection notes, both the deceased were found in objectionable condition at the time of occurrence. When he visited the spot for the first time the respectable of the village were asked to join the investigation. He recorded their statements. The persons appearing on behalf of the complainant side were also examined by him. He sent the swa bs to the office of the Chemical Examiner and thereafter, positive report was received by him in that respect. He secretly and, openly investigated the case, then he came to the conclusion from the above said evidence that both the deceased persons were found committing Zina by Aish Muhammad. It. Is correct that as pet his investigation the injuries suffered by both the deceased were caused by Aish Muhammad and the other two were empty handed. He admitted that the P.Ws. Appearing before him also stated that they saw the deceased in an objectionable posture when they entered into the house i,e,, place of occurrence. He recorded the report under section 173, Cr.P.C., correctly. According to report under section 173. Cr.P.C. Abdul Sattar and his family members on the day of occurrence had gone to attend a marriage ceremony. He admitted that the modesty of a girl/daughter is the honour of her parents: He admitted that it is correct that till 10.1-1992 when the investigation, of this case was conducted by him none of the P.Ws. Named Razzaq as accused. The houses of Rashid, Razzaq and Shafique accused, are lying at a distance of about one acre froth the place of occurrence. However, he has not earmarked the houses of the accused in the unsealed or scaled site plans available on file. He has also not mentioned this fact in his case diaries. 13. The Medical Officer, Dr. Muhammad Afial (P.W.10) who conducted the post-mortem examination found the following injury on , the dead' body of deceased Mushtaq Ahmad:--- (1) An incised wound 15 c.m, x 4 c.m. On front of neck skin, muscles, blood vessels, treaches esophagus, thyroid cartilage and hyoid bone had been cut. Every thing , up to vertobrum had ,been cut. Clotted and dry blood was present, all around the injury. Injury was ante-mortem and grievous. Deceased had passed faeces. Seminal discharge was. Also present. Injury had been caused by sharp-edged weapon. ' Skull had been opened and brain matter along with its membranes had been found healthy. Heart was found healthy and it contained negligible amount of clotted blood. Rest of all the organs in the thorax were found healthy except/ already described. Stomach contained 200 m.l. Of semi digested food and it was found healthy. Small intestine was found healthy, and it contained negligible quantity of fluid. Bladder was found healthy and empty. Rest of all the organs in the abdomen were found healthy except already described. 14. In his opinion the death was caused due to abovementioned injury, which caused bleeding and shock. Injury was ante-mortem and sufficient to cause death in the ordinary course of nature.
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15. On the same date at 10-00 a.m. Dr. Muhammad Afzal, Medical Officer (P.W.10) also conducted the post-mortem examination on the dead body of Mst. Sheeman daughter of Aish Muhammad and found the following injury on her person:--- (1) An incised 10 c.m. x 5 c.m. On front of neck. Skin, muscles of .Neck, treachea, oesophagus, thyroid cartilage, hyoid bone, blood vessels had been cut up to vertebrum.. Injury was ante-mortem and sufficient to cause death in ordinary course of nature. Injury was fatal and grievous and caused by sharp-edged weapon. ' It was a pale looking dead body of a girl aged…
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