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Petitioner: RAZZAQ AHMED and anothers VS Respondent: MUHAMMAD SADEEQ and 7 others
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Iftikhar Hussain Butt Title: RAZZAQ AHMED and anothers vs MUHAMMAD SADEEQ and 7 others Case No.: Criminal Miscellaneous No,30 of 1994 Date of Judgment:1999-03-13 Reported As: 1999 P Cr. L J 1960 Result: Appeal dismissed
Judgment ORDER ' This appeal has been directed against the judgment of Additional District Criminal Court. Bhimber, dated 16-11-1994. Whereby the respondents-accused were acquitted. ' The precise facts giving rise to the present appeal are that first information report was lodged at Police Station. Barnala. By Muhammad Aslam, a cousin of the deceased, Muhammad Reaz, alleging that on 9-7-1987 afternoon Muhammad Riaz his cousin, proceeded from his house to Durranwala Darbar and did not come back next day. He with Muhammad Bashir went-td' Durranwala to find out the whereabouts of Muhammad Riaz but in vain. On the third day he again with Muhammad Bashir went to village Durranwala and reached there at about 2-30 afternoon. On information of some boys he with Muhammad Bashir went to a pond and found a dead body therein. Meanwhile. Ch. Raham Ali, Lamberdar and Muhammad Nawaz also came there. He with the help of Muhammad Bashir identified the dead body of Muhammad Riaz. The eyes of the deceased were removed, his lips were cut down and he sustained injuries upon his head. Muhammad Sadeeq, Mehndi Khan. Guzenfer Ali, Rasheed, Zafar, Mazahar lqbal. Lal Khan and Inayat Khan were inimical to Muhammad Riaz because of his affair with Mst. Kauser daughter of Lal Khan for the last one and half years. The abovementioned persons have already made an attempt to kill Muhammad Reaz and a case was also registered against them at Police Station Karrayanwala which is sub judice. The cause of enmity is a false case of abduction between the parties. The accused openly stated again and again that they will kill Muhammad Reaz. Mst. Bagh Bi played a vital role in the murder who has been provoking the accused for the occurrence. She has also been telling upon that she will not take rest till she gets Muhammad Reaz murdered. For the purpose she always tried to know about the whereabouts of Muhammad Reaz. When on Thursday Muhammad
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Reaz went to village Durranwala, she told the accused about his departure. The accused counselled with each other and killed him. Consequently, a case was registered against the respondents-accused under sections 302 and 34. A.P.C. After usual investigation the respondents were sent up to stand trial for the said offences on 11-10-1987. The statements of the respondents- accused under section 242 of Cr.P.C. Were recorded on 16-12-1987 but the respondents denied the guilt and claimed a trial. The prosecution examined Muhammad Aslam (P.W.1), Rehm All (P.W.2), Muhammad Bashir (P.W.4). Muhammad Asghar alias Baga (P.W.5), Mst. Razia Bi (P.W.6), Talib Hussain P.W.10). Muhammad Sadiq (P.W.11), Professor Murad Ali (P.W.12), Zafar Ali (P.W.13), Ahmed Khan (P.W.14), Muhammad Razzaq (P.W.15), Muhammad Sadeeq (P.W.16), Muhammad Latif Patwari (P.W.18), Muhammad Ilyas Constable Police (P.W.19), Muhammad Sadeeq A.S.-I. Police (P.W.20), Dr. Muhammad Yousuf (P.W.21), Gulfraz Khan, Sub-Inspector Police, (P.W.22), Ch. Mumtaz Ahmed, Additional District and Sessions Judge (P.W.23) and Akram Hussain, Inspector Police (P.W.24). The trial Court after recording the evidence and hearing the arguments of the parties passed the order under appeal. ' Mr. Muhammad Azam Khan, the learned counsel for the appellant, vehemently argued that in this case motive was specifically alleged and proved by the prosecution. In this respect, he cited page 5 of the statement of Muhammad Aslam (P.W.1), whereby, in a suggestion put by the defense, the witness deposed that it is correct that because of abduction and enmity the respondents were named as accused. He argued that the witness was not cross-examined on the point of threat and counseling of murder passing by through street. Thus, the fact of threatening and counseling of murder has been proved by the prosecution. He also contended that the statement of Zafar Ali (P.W.13) has also not been challenged in cross-examination whereby, he deposed that the respondent Sadiq told him that they have committed the murder, now he should not intervene. According to the learned counsel for the appellant it is an extrajudicial confession which was made before Zafar Ali (P.W.13) but the fact of confession has not been challenged in cross-examination, thus, this portion of the evidence also proves the prosecution case. He also referred the testimony of Talib Hussain (P.W.10) who deposed the departure of respondents for Durranwala and also stated the departure of deceased for Durranwala. The said witness further stated that because of the abduction, the respondents were angry with deceased. He also referred the statement of Professor Murad Ali (P.W.12) who deposed before the Court that an abduction case of Mst. Kosar Bibi was registered against the deceased and after that the respondents had launched an attack upon the deceased. Second time respondents attacked upon the deceased in a field and his legs were broken by them. On 3rd time the respondents tried to drown the deceased in a pond and the deceased told him the details of the incident of drowning but the abovementioned statement of Professor Murad Ali (P.W.12) was also not challenged in the cross-examination. The learned counsel for the appellant also submitted that the prosecution case is based upon the evidence of motive, on an extra-judicial confession, assault upon the deceased three times before the occurrence, the evidence of departure of deceased and departure of the respondents/accused for Durranwala and statements recorded under section 164 of Cr.P.C. He maintained that under section 43 of Qanun-e-Shahadat Order the confession of an accused can be used against the other accused. It was also contended by the learned counsel for the appellant that sufficient evidence of the prosecution was ignored by the trial Court which made out the conclusion in a mechanical way. In this respect he referred pages 11 and 12 of the judgment of the trial Court. He also submitted that impugned order may be set aside and the respondents be convicted for the offence of murder. In support of his arguments the learned counsel for the appellant cited a case titled Muhammad Khalil v. Muhammad Yousuf SC ( AJ&K), dated 17-7-1996. ' Mr. Muhammad Mushtaq Ch., the learned Additional Advocate-General supported the arguments of learned counsel for the appellant. He also contended that sufficient evidence for conviction has
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been produced by the prosecution. But the trial Court did not appreciate the evidence in a legal manner. ' In reply. Mr. Abdul Majeed Mallick, the learned counsel for the respondents-accused argued that is a case of blind murder providing clue or link to any culprit. He also contended that the respondents have been involved purely on ground of suspicion and in support of suspicion the prosecution has led a false and concocted evidence, thus, it is a case of complete padding. He also argued that First Information Report was formulated and lodged after the recovery of dead body and it was made pre-dated. He pointed out that finding of the dead body from the pond is itself a mysterious story. He also argued that story of search of Muhammad Reaz on 10th and 11th of July is also concocted. The witnesses were not present at the time of the recovery of the dead body from the pond. He also contended that Muhammad Asghar Rehm Ali, Razia Bibi, Mehndi Khan son of Boota Khan were arrested in the murder and sent to judicial lock-up. They were also produced before a,Magistrate at 13himber on 2-9-1987 as accused but were replaced by the respondents, It was also argued by the learned counsel for the respondents that motive alleged in this case is itself contradictory which leads towards suspicion. He further submitted that there is no remote linkage of the respondents with the case and no material was collected by the Investigating Agency. He maintained that alleged recovery of 2 sticks "Dandas" and one Chhuri were stated to be blood- stained at the time of the recovery but they were not got examined by the Chemical Examiner of Serologist to determine the origin of blood, therefore, according to him, the recovery totally loses its value. He further, argued that none of the respondents-accused made any confession before any Magistrate who was shown to he tried alongwith the respondents. Therefore, the principle of confession.Ol one of the accused is not available in this case. If at all there was any confession it was not put to the respondents at the time of the examination under section 342 of Cr.P.C. He also argued that according to F.I.R. The dead body was recovered by Muhammad Aslam (P.W.1) and Muhammad Bashir (P.W.4) and then Muhammad Aslam (P.W.I) lodged an F.I.R. On 11-7-1987 at 18-10 hours, then police took away the dead body of the deceased to the hospital and both the prosecution witnesses accompanied the dead body to the hospital but page one of the post- mortem report Exh.P.X., shows that dead body was identified by police, which means that the dead body was not identified on the day of recovery. He also pointed out that date of examination of body was also over written and instead of 13th of July. 1987 the words 12th of July were inserted. He further pointed out that in column of information to the doctor furnished by police is also blank and word "none" has been written. In these circumstances according to the learned counsel for the respondents. At the time of the recovery of the dead body or at the time of post mortem no F.I.R. Was lodged and cause of death was not told to the doctor by the police. He further. Submitted that Doctor Muhammad Yusut (P.W.21) did not mention whether the clothing of the deceased were blood-stained. He also argued that according to the post-mortem report injury No,1 was the cause of death which has been shown as a large lacerated wound and if the deceased was killed by Chhuri then there should have been an incised wound instead of lacerated wound. According to the post-mortem report, the period between the death and post-mortem was 72 hours, thus, deceased was murdered on 10th of July, 1987. He also referred the statement of Ch. Mumtaz Ahmed, Additional District and Sessions Judge (P.W.23) according to which he recorded the statement of the accused Asghar Ali son of Bahadar Khan, Ghulam Abbas son Muhammad Alam. Mehndi Khan son of Boota Khan on 2-9-1987 which means that till 2-9-1987 the abovementioned persons were shown as accused persons of the case who were arrested and later on released and after that they were produced as prosecution witnesses but all of them retracted from their statements recorded under section 164 of Cr.P.C.. They were also declared hostile and cross- examined by the prosecution. Thus, it is quite evident that Muhammad Aslam (P.W.1) and Muhammad Bashir (P.W.4) were not the persons who saw the dead body, recovered it and told the
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story of incident to the police and it is all concoction. According to the prosecution story all the respondents including Inayat and Mst. Bagh Bi were nominated as accused in F.I.R. According to him it F.I.R. Was lodged on 11-7-1987 then as to why Asghar Ali alias Baga (P.W.5) and her mother- in-law Mst. Razia Bi were arrested. The learned counsel for the respondents-accused invited our attention towards various portion of the prosecution evidence and submitted that there are lot of contradictions in the evidence which cannot be relied upon. He also argued that according to F.1.R. Mst. Bagh Bi played a vital role in this incident but the Investigating Agency reached to the conclusion that Mst. Bagh Bi is innocent but prosecution did not proceed against Mst. Bagh Bi. This silence of the prosecution negates the whole case of prosecution. He also contended that motive is used for purpose of corroboration and can never he used as a ground for conviction. Lie further, argued that when none of the accused made any confession how it can he read against the other accused-respondents. He also argued that the statement of Zaffar Ali (P.W.13) is also not reliable because it is admitted by Zaffar All that deceased was dose!) related to him, therefore, it cannot be believed that Muhammad Sadeeq respondent-accused would have made any confession before him especially when the statement of Zaffar All was not corroborated by any other evidence. He also criticized the recovery evidence and argued that the -ticks and Chhuri were not sent for examination of Chemical Examiner or Serologist. The learned counsel for the respondents further, pointed out this fact that site plan Exh.P.Y was prepared on 16-7-1987 and this fact has also proved on record that on 16-7-1987 Asghar Ali alias Baga (P.W.5). Mst. Razia Bi (P. W .6), Abbas (P.W.7) and Mehdi Khan (P.W.8) were under arrest as accused but in the site plan instead of the abovementioned persons the respondents were shown as accused. According to him if the site plan was prepared on 16-7-1987 then who pointed out the presence of respondents on the site of the occurrence. Muhammad Latif Patwari (P.W.18) also stated in the Court that he prepared the site plane, at the pointing out of police. He further, submitted that according to the statement of Dr. Muhammad Yousuf (P.W.21) the dead body was examined on 13-7-1987 and if according to the prosecution story the dead body was recovered on 11-7-1987 then as to why the post-mortem was not done on 11-7-1987 or 12-7-1987 and why it was done on 13-7-1987, which' means that the act of recovery of dead body is concocted and cannot be relied upon. He also submitted that inquest report and injury form were prepared by Muhammad Saddiqe, A.S.-1. (P.W.20) who appeared as witness but these documents were neither tendered in the evidence nor got exhibited by the prosecution. He maintained that according to the recovery memo. Exh.P.H. The blood-stained Tehband ( ,407 ) shirt and vest were recovered by Muhammad Saddiqe, A.S.-I. (P.W.20), but the said witness did not state anything about it. Finally, the learned counsel for the respondents submitted that it is a case 01 circumstantial evidence and there is no iota of evidence which links the accused directly or indirectly with the commission of crime, therefore, the order of acquittal may be maintained. In support of his contention the learned counsel for the respondents-accused referred the following authorities:- (i) PLD 1962 Lah. p.271(D) (E), (ii) PLD 1965 SC p.44(A), (iii) 1991 SCMR p.2220(A)(B), (iv) 1991 PCr.LJ 697(F), (v) 1992 SCR p.366(B) and (vi) 1993 PCr.IJ p.1457(F). ' I have given due consideration to the matter in the light of the arguments advanced at the Bar. The learned counsel for the appellants vigorously contended that the prosecution case is based upon tine extra-judicial confession of one of the respondent Muhammad Saddiqe. In this respect he referred the testimony of Zaffar Ali (P.W.13) who stated as under:--{{URDU TEXT}} ' The learned counsel for the appellants argued that the abovementioned statement was not challenged during the cross-examination, thus, stands proved but this argument of the learned counsel for the appellant is devoid of force because the abovementioned statement has been challenged in cross-examination in detail. Zafar Ali (P.W.13) is real maternal-uncle of the deceased, therefore, it is inconsistent of human nature that respondent Saddiqe had made a confession
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before him. No other corroborative evidence in this respect is available on the record for the contradictions found in his statement. Zafar Ali also stated that he never witnessed any quarrel between the respondents and the deceased. The witness has further deposed that he has stated this fact for the first time in the Court that before the occurrence Muhammad Siddiq respondent and another person came to him and told him that they will commit the murder of Muhammad Reaz. He further, stated that he did not mention this fact to the police. Furthermore, according to the witness, Saddiqe respondent told him about the occurrence on 12th of July, 1987 but he did not mention this important fact to the police for two or three days and kept on waiting till his statement was recorded by police, the abovementioned deposition of witness is not reliable and truthful. This argument of the learned counsel for the appellant has also no substance that in the light of the statement of Zaffar All (P.W.13) an extrajudicial confession has been made by Muhammad Saddiqe. It has to be kept in mind that according to the witness Saddiqe respondent did not state that at the time of the murder who participated with him. Therefore, the statement of the said witness does not support the prosecution case to the extent of other respondents except Saddiqe. As far as the effect of an extra-judicial confession of Muhammad Siddiq is concerned it does not come in preview of an extrajudicial confession. Firstly, it has not been proved on the record that Muhammad Saddiqe has confessed the murder of deceased Muhammad Reaz before Zaffar Ali. Secondly the statement by itself is not sufficient and reliable for the conviction. Article 43 of Qanun- e-Shahadat Order is an exception to the general rule that a confession is only evidence against the confessor and not against the others. This articles affords some sort of guarantee for the truth of the statement when the maker of such statement also implicates other accused because an admission by an accused person of his own guilt affords some sort of sanctions in support of the truth of his confession against others as well as himself but in the instant case when the statement of Zaffar Ali (P.W.13) has been recorded and not relied upon, no question of any confession arises. There is also an important aspect of the case that the prosecution did not put alleged extra- judicial confession to the respondents in their examination under section 342 of Cr.P.C. Thus, cannot be used as a piece of evidence against the respondent. Therefore, the evidence to prove extra-judicial confession has been procured by police from an interested witness. The story of extra-judicial confession is highly doubtful. Thus, no conviction can be based upon such type of extra-judicial confession of an accused without corroboration from some other reliable and independent evidence. PLD 1985 SC page 221. ' It was also argued by the learned counsel for the appellants that the respondents launched three attacks upon the deceased before the occurrence and they were inimical to him and wanted to kill him at any cost. In this respect the prosecution produced Professor Murad Ali (P.W.12) and Zaffar Ali (P.W.13). Professor Murad Ali (P.W.12) stated before the Court that he did not know about the cam: of abduction. He further, deposed that he has no personal knowledge about the case of quarrel pertaining to a case of Gujrat Court. He also stated that he told the police about an assault launched in the fields but the police did Oct mention this fact in his statement. He further stated that the police also did not mention the fact of drowning of deceased in a pond. The prosecution tried to bring this fact on record that Chairman Saryallie came to the witness wfin lord him that Saddiqe and Majha are not involved in the murder but in the crop examination the witness stated that he does not know the Chairman personally and he also does not know that after how many days of the occurrence the Chairman came to him and he also cannot tell the date of his meetin,. He further, mentioned that he met the Chairman in front of shop of Dr. Mian Khan and they sat on the shop of Haji Siddiq. At that time, he, Chairman and Aziz sat there and nobody else was present but the prosecution did not produce Chairman Saryallie or Haji Saddiqe shopkeeper to prove this fact. Therefore, the testimony of Professor Murad Ali was not corroborated by any cogent evidence. Professor Murad Ali is an educated person but he did not raise any objection at the time of the
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recording of his statement before police and he does not know the name of Chairman who allegedly came to him for rescue of respondents Siddiq and Majha. It will not be out of place to mention here that he is husband of deceased cousin. In these circumstances the testimony of Professor Murad Ali cannot be relied upon. In this context the statement of other witness Zaffar Ali has already been discussed above, 1 do not agree with this contention of the learned counsel for the appellants that the fact of an attempt of drowning of deceased in the pond was not challenged in cross-examination, therefore, it is hereby repelled. Suffice to note that this fact has been challenged in cross-examination. ' The learned counsel for the appellants also submitted that the tact of departure of deceased for Durranwala and departure of respondents for Durranwala to follow the deceased was also proved by prosecution. In this respect the learned counsel referred the statement of Talib Hussain (P.W.10) and Muhammad Saddiqe (P.W.11). Muhammad Saddiqe (P.W.11) was declared hostile who deposed that on 9-7-1987 he and Talib Hussain were going towards their houses at village Khattana when deceased met them who told that he is leaving for Durranwala. He did not agree with the suggestion of the prosecution that he saw the respondents-accused while going cowards Durranwala. He also admitted this fact that village Durranwala is situated at the distance of 4 miles from village Khattana. He turther, deposed that he did not mention this fact before the police that he met with Reaz deceased on 9-7-1987 rather, for the first time he disclosed this fact in the Court. Talib Hussain (P.W. 10) deposed that he did not tell the police that Reaz deceased met him while he was going to village Durranwala and for the first time he has deposed this fact in the Court/He also stated he ale( respondents who were also leaving for Durranwala and at that time Mutuuninad Saddiqe (P.W.11) was accompanied by him. He further, stated that he did not mention this fact to the police that he met the respondents when they were going to Durranwala. He admitted this fact that the occurrence of an assault upon the deceased Reaz by the respondent did not happen in his presence. The perusal of the statement of Talib Hussain shows that he is not telling the truth. He stated that he was accompanied by Muhammad Saddiqe (P.W.11) but Muhammad Siddiq does not corroborate his statement. He also stated that he did not tell the police the fact of departure of deceased for Durranwala and on that very date the departure of respondents. The statement of the witness cannot be relied upon because if he knew the fact then why he kept quiet and did not tell these facts to the police especially when he came to know that the deceased has been murdered. For the reasons above listed the prosecution also failed to prove this fact that on the day of the occurrence Muhammad Reaz deceased left for Durranwala and on that very date the respondents also followed him. It will not be out of place to mention here-that the prosecution cited three more prosecution witnesses Abbas Ali (P.W.7) Mehndi Khan (P.W.8) and Nadar Khan (P.W.9) to prove this fact but these witnesses were not produced by the prosecution and declared hostile. ' The prosecution has also placed on record the statements under section 164 of Cr.P.C. Of Muhammad Asghar alias Baga (P.W.5) Exh.P.I., Ghulam Abbas son of Muhammad Aslam (P.W.7) Exh.P.J. And Mehndi Khan son of Boota' Khan (P.W.8) Exh.P.K. To prove this fact Ch. Mumtaz Ahmed, Additional District and Sessions Judge (P.W.23) was also produced before the Court. It will be appropriate to note here that Muhammad Asghar alias Baga (P.W.5) and Mst. Razia Bi (P.W.6) have been shown in the calendar of challan as eye-witnesses of the occurrence and amongst them statement of Muhammad Asghar under section 164 of Cr.P.C. Was also recorded but both of the prosecution witnesses did not support the prosecution story and were declared hostile. Mst. Razia Bibi (P.W.6) deposed before the Court that she does not know the deceased and she knows nothing about the murder of Reaz. She was cross-examined but the prosecution failed to get any statement in support of its story. She admitted fact that she with her daughter Hamida Bi and son- in- law Muhammad Asghar was arrested in this murder case. Muhammad Asghar (P.W.5) stated
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that neither he knows Reaz nor the respondents-accused. He also does not know about the occurrence. He refuted this fact in tl:e cross-examination that deceased Reaz came to his house to participate a religious ceremony in the year 1987. He also admitted this fact that he, his wife and mother-in-law…
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