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Petitioner: MUHAMMAD ALI VS Respondent: STATE
1985 M L D 1050
1985 M L D 1050
[Lahore]
Before Ghularn Mujaddid Mirza and C.A. Rahman, JJ
MUHAMMAD ALI--Appellant
Versus
THE STATE--Respondent
Criminal Appeal No. 21 and Murder Reference No. 16/1, of 1983, decided on 7th July, 1985.
(a) Penal Code (XLV of 1860)--
---Ss. 302/148 & 149--Appreciation of evidence--Conduct of eye-witnesses after occurrence is not controlled by -any rule of law but depends upon person concerned as to how he spontaneously reacts at a particular moment--Human conduct differs from person to person, occasion to occasion and some time even from hour to hour--Contention that eye-witness after having seen incident should have informed police instead of his father repelled--Eye-witness, is best Judge in circumstances to react in manner he thinks fit.
(d) Penal Code (XLV of 1860)--
---Ss. 302/148 149--Appreciation of evidence--Mere relationship with concerned party was no ground to reject testimony of a witness provided he was a truthful witness.--[Witness].
(e) Penal Code (XLV of 1860)--
---Ss. 302/148 & 149--Double murder--Evidence of eye-witness corroborated--Accused having venom against deceased (who got him arrested when he was an absconder in a theft case) putting An end to his life in a brutal and merciless manner--No conflict found between medical and ocular version--Medical evidence rather supporting ocular account regarding number of injuries, nature and weapon used in commission of crime--Although investigation in case conducted in a haphazard and careless manner and evidence of recoveries not acceptable, yet ocular evidence duly supported by medical testimony leaving no room for doubt that accused were responsible for murder of deceased- Case against accused proved beyond doubt--Conviction and sentence upheld.
Hahadur and another v. The State and another P L D 1985 S C 62; Bashir Ahmad v. , Allaqa Magistrate' Jaranwala and 4 others PLD 1980 Lah. 28; Asghar Ali v . The State 1983 Cr.P Cr. L J 2187; Wazir v . The State P L D 1962 (W.P.) Lah. 405; Khalil Ahmad alias Khalil and another v. The State 1975 S C M R 442; Abdullah v. The State 1976 PCr.LJ 584 and Ghulam Hussain v. The State 1983 P Cr. L J 2382 ref.
(d) Penal Code (XLV of 1860)--
---Ss. 302/148 4 149--One of co-accused empty handed while other not attributed any injury to either of deceased--Part attributed to both co-accused was of dragging deceased when he was hit Story dragging however appearing to be an after thought and create I doubt about their participation -Co-accused given benefit of doubt and acquitted.
(e) Penal Code (XLV of 1860)--
---Ss. 302/148 149--No hard and fast rule, held, could be laid down for determining as to how mind of a criminal works--Once malice, anger, vengeance and hatred takes better of a person then all respect for human life and humanity is gone.
Riaz Kiani for Appellant.
M. Salim Sheikh for the Complainant.
Shabbir Lali for the State.
Dates of hearing: 11th, 12th and 13th February; 6th and 9th March, 1985.
JUDGMENT
GHULAM MUJADDID MIRZA, J.--Muhammad Ali son of Hakim Ali, Abdul Haq son of Faiz Muhammad, Azhar-ul-Hasan and Muhammad Ramzan sons of Babu Khan and Muhammad Hussain son of Kaloo were challaned under section 302/148/149, P.P.C. They were charged of double murder of Muhammad Yaqub and Ghulam Nabi. As Muhammad Hussain could not be arrested he was declared proclaimed offender. Trial was conducted under section 512, Cr.P.C.
The trial Court convicted and sentenced Muhammad Ali and Muhammad Ramzan to death and a fine of Rs.5,000 each or in default to undergo 2 years' R.I. each. They were further sentenced to two years' R.I. each under section 148, P.P.C. Both the sentences were ordered to run concurrently.
Azhar-ul-Hasan and Abdul Haq were convicted and sentenced to life imprisonment and a fine of Rs._5,000 each or in default to undergo 2 years' R.I. each. Under section 148, P.P.C., they were further ordered to undergo 2 years' R.I. each. Both the sentences were ordered to run concurrently.
The complainant has filed Criminal Revision for enhancement of sentence of Azhar-ul-Hasan and Abdul Haq, which has been ordered to be heard alongwith criminal appeal.
The convicts have filed two separate appeals. Reference for confirmation of the death sentence is also before us. All these matters are being decided by this judgment.
The incident took place on 2-91979 at 8-00 a. m. in Killa No. 4 of Square No. 48 in the area of Chak No. 75 R.B., District Faisalabad.
Inayat All son of Piran Ditta, resident of Chak No. 75 R.B. an Assistant Lineman, WAPDA, Shahkot, reported the matter at Police-Station Khurrianwala vide report Exh. P.K.
Inayat Ali did not see himself how the murders took place. He was informed by Muhammad Aslam Saleem (hereinafter to be referred as Saleem) son of Fateh All resident of Chak No. 75 R.B. Inayat Ali's report was to the effect that his son Muhammad Yaqub, Line Superintendent, WAPDA, Faisalabad, was Vice-President of Pakistan Labour Union, WAPDA. Muhammad Ali (one of the appellants) was involved in number of theft cases. He was challaned in many cases. Before the occurrence, he stole two bullocks belonging to Manzoor Ahmad son of Sardar. A case was registered under section 379, P.P.C. against Muhammad Ali. He absconded. Muhammad Yaqub got him arrested.
On the evening preceding the day of occurrence, Muhammad Ramzan son of Babu cable to see Muhammad Yaqub and asked him what was his programme for the next day. He told him that he would leave for his duty at 718-00 a.m. for Faisalabad.
On the day of occurrence, at about 8-00 a.m., Muhammad Yaqub alongwith Ghulam Nabi son of Noor Muhammad left for Faisalabad. They were on a Yamaha motorcycle. When they were about a mile from the village in Killa No. 4 of Square No. 48, Muhammad Ali and Muhammad Ramzan armed with .12 bore shot guns, Azhar armed with Toka and Abdul Haq and Muhammad Hussain empty-handed stood up from the sugarcane-field where they were laid ambush.
The moment Muhammad Yaqub came in Killa No. 4 Muhammad Ali fired. Yaqub was hit in left flank. He fell down from the motorcycle. Second shot was fired by Muhammad Ramzan. Ghulam Nabi was hit in the cheat. He too fell down. Thereafter, Abdul Haq and Muhammad Hussain caught hold of Muhammad Yaqub by his legs and arms. Muhammad Ali took Toka from Azhar, gave his gun to him and himself inflicted number of injuries on the face, hands and neck of Muhammad Yaqub. Both Muhammad Yaqub and Ghulam Nabi died at the spot.
Occurrence was seen by Zulfiqar Ali and Muhammad Saleem residents of Chak No. 75 R.B. They were on their way to Khurrarian wala.
It was Saleem who informed Inayat Ali, father of Muhammad Yaqub, about the occurrence. Inayat Ali came to the spot. He left Zulfiqar Ali and Saleem near the dead bodies and himself proceeded to report the matter to the police.
The motive for this incident was that 718 days before the occurrence, Muhammad Ramzan, Azhar and Abdul Haq came to Inayat Ali. They gave a warning to Inayat Ali that his son Muhammad Yaqub and his friend Ghulam Nabi were interfering in their affairs. As such their end would be disastrous. Thereafter, all the accused conspired and murdered Muhammad Yaqub and Ghulam Nabi.
Saleem and Zulfiqar appeared as eye-witnesses. They also attested some recoveries. Inayat Ali entered the witness-box to prove the F.I.R. The other important evidence is the post-mortem reports of the two deceased.
Saleem deposed that he alongwith Zulfiqar left for Khurrarianwala from his village. Both were on foot. When they were on metalled road and had covered a distance of about one mile, Yaqub bye-passed them on a motorcycle. Ghulam Nabi was sitting behind him. When both were at some distance from Saleem and Zulfiqar, Saleem heard some noise. It was coming from Kills No. 4 of Square No. 48. He heard "they should not be spared, catch hold of them." On hearing this both pedestrians stopped there. Within their sight, five persons emerged from sugarcane crop. Those were Muhammad Ali and Muhammad Ramzan armed with .12 bore shot guns, Asher with Toka and Abdul Haq and Muhammad Hussain empty-handed.
Saleem saw that Muhammad Ali opened the attack. He fired at Muhammad Yaqub with his gun. He was hit in the left flank. Yaqub fell down. Thereafter, Ramzan fired. Ghulam Nabi was hit in the chest. He too fell down. Then Azhar gave Toka to Muhammad Ali and took his gun from him. Muhammad Ali gave injuries with Toka to Yaqub on his arms, hand and face. Abdul Haq accused dragged Muhammad Yaqub. Muhammad Hussain caught hold of him from his hands and Muhammad Ali gave Toka blows on the neck of Muhammad Yaqub. His neck was practically severed. Only a little bit of skin remained attached.
Muhammad Ramzan said that they had completed their mission. Muhammad Ali searched Muhammad Yaqub deceased, changed his pair of shoes with him and took his gun from Azhar. All this was being seen by Saleem and Zulfiqar Ali who were hiding behind the Sarkandas.
The accused left the spot carrying their weapons with them. Saleem and Zulfiqar came to the spot. They found Yaqub dead. Ghulam Nabi was still breathing. Saleem and Zulfiqar Ali then went to the place from where the accused stood up. There they found some pieces of cigarettes and empty packets of cigarettes.
Zulfiqar Ali is the other eye-witness. He is brother-in-law of Yaqub deceased. He corroborated the statement of Saleem. After deposing that when the two deceased bypassed them on motorcycle, he stated the they heard Lalkara, on which he and Saleem stopped. Then they saw the five accused. Two of them, namely Muhammad Ali and Muhammad Ramzan had .12 bore shot guns. Azhar had Toka, Abdul Haq and Muhammad Hussain were empty-handed.
Zulfiqar also held Muhammad Ali responsible for opening the attack by firing his gun and injuring Muhammad Yaqub. The second shot which hit Ghulam Nabi in the chest, was ascribed to Muhammad Ramzan.
Zulfiqar Ali then repeated what Saleem said about the exchange of gun with Toka and the rest of the story.
Zulfiqar attested certain recoveries which shall be mentioned later on.
Inayat Ali the first informant proved the F.I.R. He also deposed about the motive, which has been referred to above, and told the Court that when he arrived at the scene of occurrence, both the injured had died.
Saleem and Zulfiqar attested the recovery memos. Exhs. P.L., P.M., P.N., P.O., P.Q., P.R., P.S., and P.U., pertaining to blood stained earth of Ghulam Nabi and Muhammad Yaqub, two crime empties, three pellets, pair of shoes of Muhammad Ali, bag, watch, tooth brush and optical, motorcycle and pair of shoes belonging to Yaqub deceased respectively.
On 17-9-1979 Muhammad Ali led to the recovery of gun P. 11 and Toka P. 12 from a Paiti lying in his house.
On 3-9-1979, at 8-45 a.m., Dr. Bashir Hussain Kahlon conducted post-mortem on the dead body of Muhammad Yaqub. The doctor found 10 incised wounds. One incised wound 23 c.m. x 5 c.m. was on the middle of the neck; the throat was cut through and through. The second incised wound 3 c.m. x c.m. x bone deep on the right chin.
The third incised wound 13 c.m. x 4 c.m. x bone deep on the right chin. The fourth incised wound 3 c.m. x 1 c.m. x bone deep on the right eye brow. The fifth incised wound 4 c.m. x c.m. skin deep on the right angle of mouth. Five more incised wounds on the right hand, right wrist and on the back of right little finger.
There were two abrasions c.m. x c.m. each on the front of right upper chest.
Five fire-arm wounds 2 c.m. x 1 c.m. going deep into the lower left chest and abdomen each on the front of left lower chest 8 c.m. below the left nipple. Margins of the wounds were black. Three fire-arm wounds 1 c.m. x 1 c.m. going deep on the right side of abdomen at the back of right lumbar region.
According to doctor's opinion, death was due to incised wounds on the throat and two other injuries cause by fire-arm referred to above. These injuries were sufficient to cause death in the ordinary course of nature.
The doctor also removed 2 pellets from the right lumbar region which were handed over to the police alongwith the clothes in a sealed bottle.
On the same day at 8-00 a.m. the same doctor conducted autopsy of Ghulam Nabi and found the following three injuries:-
(1) Six fire-arm wounds 1 c.m. x c.m. x going deep into the chest each on the front of right upper chest. The margins were black and scorched. This was a wound of entry.
(2) Four fire-arm wounds c.m. x c.m. going deep into the chest each on the back of right upper chest. This was a wound of exit.
(3) An abrasion 5 c.m. x 2 c.m. on the back of right elbow. Injuries Nos. 1 and 2 collectively were sufficient to cause death in the ordinary course of nature. The doctor removed 2 pellets from the back of chest. Those were handed over to police in a sealed bottle."
In cross-examination the doctor said that the injuries on the persons of the deceased had been inflicted by fire-arm from a distance of 3 to 4 feet from the Mazzle of the gun.
He further deposed that injury No. 6 itself on the person of Muhammad Yaqub could cause death instantaneously. Exit of injury No. 6 on the person of Yaqub was at a lower level than its entry.
The .nvestigatior in this case was conducted by three different officers, Munir Hussain, Inspector/S.H.O., Police Station Khurrarian wala, Taj Muhammad Khan, Additional S.P. Faisalabad, and Anwar-ul-Haq, Inspector, Crimes Branch, Lahore.
Muhammad Ali appellant when questioned about the theft of two bullocks belonging to Noor Muhammad and the report lodged against him and the fact that he became absconder and ultimately Yaqub deceased got him arrested, said that this was all incorrect. Similarly he denied that he alongwith others conspired to kill Muhammad Yaqub and Ghulam Nabi. Thereafter he denied the main charge of murder. He also denied the recovery of shoes, while in police custody belonging to Yaqub deceased. He further said that gun and Toka did not belong to him. Toka belonged to Inayat. It was he who produced both the weapons.
He denied the recovery of blood-stained Kurta and Chadar from his house and said that clothes did not belong to him.
He told the trial Court that the recovery of empty cartridges and the gun was false. The opinion of the Fire Arms Expert had been obtained falsely. This evidence had been fabricated by the police with the connivance of Fire Arms Expert. The case against him was due to enmity. He pleaded not guilty. In defence he produced statements Exhs. D. H and D.J. , attested copy of challan Exh. D K, another attested copy of challan Exh. D.L. and attested copy of the statement of Nasir Ahmad.
Muhammad Ramzan when examined by the trial Court denied the fact that 7/8 days prior to the occurrence, he alongwith Azhar and Abdul Haq went to the house of Inayat Ali and asked him that nrs son Yaqub and Ghulam Nabi were interfering in their affairs. lie denied that a conspiracy was hatched to kill Yaqub and Ghulam Nabi. He also denied that a day prior to the occurrence he went to the house of Yaqub and enquired as to what was his programme. 'Similarly he denied the main charge of murder and said that he had been involved in this case due to enmity. When questioned "do you want to say anything else" his answer was as follows:-
"I am innocent. During the days of occurrence I was posted as Patwari in Canal Department at Shah Kote and at the time of occurrence I was performing my duties in my office and other staff of the Canal Department was also present there. I have been falsely implicated in this case and during the investigation I adduced evidence in my defence and on the basis of that evidence I was found innocent by the S.S.P., Faisalabad and he got me discharged from the Ilaqa Magistrate in this case and even later on during the investigation I adduced my documentary as well as oral evidence i.e. witnesses in defence to prove my plea of alibi which was recorded and accepted by the Investigating Officers."
When questioned "will you produce defence evidence" he answered as follows:-
"I produce in my defence attested copy of the Mutation, No. 732 of Chak No. 75 R.B. regarding the sale of landed property in the Chak and its proceedings taken up by the Revenue Officer at the time of sanction of the mutation which is Exh. D.M. I also produce the attested copy of the proceedings of amended Warabandi of Outlet No. 9650/T.F. of Ranwala minor irrigating Chak No. 75 R.B. in which the irrigation water of Walla P.W. was reduced and during those proceedings I had appeared as a witness against him which is Exh. D.N. Both these documents may be read in my defence."
Azhar denied all the allegations and stated that on the day of occurrence he was posted as school teacher in Chak No. 76 R. B. At the time of occurrence he was present on his duty. During the investigation he produced the defence to prove that he was present on duty in school when the occurrence took place. He declined to produce any evidence in defence.
Similarly Abdul Haq denied all the allegations. He said that he had been falsely implicated the reason being that he appeared as a witness in mutation proceedings Exh. D.M. against Saleem P.W. of the land owned by Mst. Hassu and Umer Din and others. Another reason for his being falsely implicated was that prior to the occurrence he got registered a case against Khurshid and Boota P.W. He was pressurized by Inayat Ali, the first informant, for affecting a compromise with them, to which Abdul Haq refused. It was this grudge and enmity which led to him being falsely implicated. He did not produce any evidence in defence.
Abdul Haq, Azhar-ul-Hasan and Muhammad Ramzan are being represented by Khawaja Sultan, Ahmad, Advocate, and Muhammad Ali by Mr. Riaz Kiyani Advocate.
Khawaja Sultan Ahmad criticised the entire prosecution evidence. He submitted that the prosecution story did not appeal to reason. It was a concoction. At every step element of doubt was present.
He first took up the evidence of Saleem. Learned counsel submitted that he was not an independent witness. He was. Interested in the complainant side. He was relative of the complainant party and was inimical to the accused.
Learned counsel submitted that when this witness was confronted with his statements recorded under section 161, Cr.P.C. his testimony on oath was full of contradictions and omissions. His evidence a3 such could not be taken as reliable evidence.
Learned counsel then referred to the evidence which proved that prior to the occurrence proceedings under section 107/151, Cr.P.C. were initiated against Saleem and Muhammad Ali appellant. This fact established that Saleem had animus to falsely depose against Muhammad Ali and for this reason he could go to any extent.
Learned counsel then took up the testimony of Zulfiqar Ali. It was submitted that his evidence was to be rejected outright on two grounds. First, that he was brother-in-law of Yaqub deceased. Secondly, he was not resident of Chak No. 75 R . B . , where the occurrence took place whereas he permanently resided in Chak No. 152 R.B. where he had been registered as a voter.
Learned counsel further submitted that the presence of this witness at the spot was absolutely unbelievable. According to him as e matter of fact, both the witnesses did not see the occurrence. They were brought on the scene by the police because they had no evidence to connect the appellants with the alleged crime.
While dealing with the recoveries, it was argued that those were of no legal significance because those had been attested by the same eye-witnesses whose evidence had already been criticised. Learned counsel was surprised as to why the police could not find some independent witness to attest the recovery memos.
Learned counsel then took up the medical evidence and argued that this was in conflict with the ocular version. The reason given in support of this argument was that the doctor had deposed that the assailants were at higher level when the two deceased were shot dead.
Learned counsel further argued that the story that after Muhammad Ali had fired and Yaqub was hit, then. he exchanged his gun with Toka and himself gave number of Toka blows to Yaqub, was absurd. It was contended that there was no need for that because Muhammad Ali's purpose had been served. He had hit his target.
Learned counsel criticised the conduct of Saleem on the ground that if he was actually present at the spot then instead of informing Inayat Ali, he should have gone to the Police Station to lodge the report especially when the Police Station was at a distance of only four miles Learned counsel argued that Muhammad Yaqub was an undesirable person. He was a desperado. There were many after him and who knows who killed him.
After concluding his arguments on facts, counsel urged, `that Muhammad Ramzan was once discharged by the order of a Magistrate. That order for all intents and purposes exonerated Ramzan. As such neither the police was competent to re-investigate the case qua Ramzan nor could he be tried by the trial Court. In support of this contention, learned counsel cited the case of Bahadur and another v. The State and another P L D 1985 S C 62. He relied on Bashir Ahmad v. Allaqa Magistrate Jaranwala and 4 others P L D 1980 Lah. 28.
Learned counsel also cited the case of Asghar Ali v. The State 1983 PCr.L J 2187 wherein is has been observed that once a case is cancelled by a Magistrate the police has no authority to investigate the same.
Nevertheless it was further observed "police had option of applying again to Magistrate for recalling the order of cancellation which the Magistrate could have, the order being administrative in character, but unless they obtain such an order from the Magistrate the investigation of the subsequent challan in the Court has no sanction of law behind it".
Reliance was also placed on a Full Bench decision in Wazir v. The State P L D 1962 (W.P.) Lah. 405.
The printed paper book does not contain any order of discharge. The counsel for the appellant did not show any such order. We have also gone through the record but have not come across any order dealing with the order of discharge of Ramzan appellant. On the file there is an order, dated 30-4-1980 passed by a Magistrate. There is a reference in that at one stage Ramzan was discharged. However, that order is not a part of the paper book nor it has been exhibited. Nevertheless, in the larger interest of justice we have taken notice of this order. From the order it is evident that the police after the discharge of Ramzan moved again and the Magistrate ordered that non-bailable warrants be issued against Ramzan for his re-arrest. The following portion of the order of the Magistrate is relevant:-
"Although Ramzan accused was previously discharged on the report of S.S.P., Faisalabad, yet on reinvestigation sufficient material has come or record to negate the defence plea and to implicate Ramzan in the case cited above. It has been contended by the I.O. as well as the P.I. that in the circumstances of these previous order of discharge of Ramzan accused in this case is no bar to re-arrest him as the order of discharge is merely an administrative order. I agree with the I.O. and the P.I. and am convinced that sufficient material is available on record to warrant re-arrest of Ramzan accused in this case so as to challan him to the Court. I, therefore, order that as requested by I.O. /P.I. non-bailable warrant for the re-arrest of Ramzan accused in the above-said case be issued for 15-5-1980."
We have noted the principle laid down in the aforesaid judgments. In view of the second order of the Magistrate, dated 30-4-1980, contention of the learned counsel that Muhammad Ramzan could not be re-arrested and tried has no force and the same is accordingly repelled.
Last of all learned counsel repeated his previous contention that the conduct of Saleem was unnatural. If he was actually present then in the normal course of events he would have straightaway proceeded to the Police Station to lodge the report rather than to rush to the house of Inayat to inform him about the incident.
Mr Riaz Kiyani Advocate for Muhammad Ali adopted the arguments of the learned counsel for the other appellants and- vehemently argued that his client was not present. He had nothing to do with the occurrence. He had been falsely roped in.
Learned counsel for the complainant contended that the case had been proved against the appellants beyond any doubt. He submitted that the F.I.R. was lodged promptly. The occurrence took place at 8-00 a.m. The report was lodged at 9-30 a.m. The distance between the place of occurrence and Police Station was only four miles. This ruled out the possibility of fabrication or substitution.
It was further submitted that F.I.R. was complete in all aspects. Names of the accused were mentioned. Details were given. Specific…
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