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Petitioner: MUHAMMAD DIN and others VS Respondent: The STATE and others
Court Name: Lahore High Court Judge(s): Qazi Muhammad Amin Ahmed, Ch. Abdul Aziz Title: MUHAMMAD DIN and others vs The STATE and others Case No.: Criminal Appeal No, 344 and Murder Reference No, 171 of 2011 Date of Judgment:2011-11-08 Reported As: 2018 YLR 580 Result: Appeal accepted
JUDGMENT
JUDGMENT CH. ABDUL AZIZ, J.---This judgment shall dispose of Criminal Appeal No,344 of 2011 (filed by appellants Muhammad Din and Muhammad Mushtaq against their conviction) and Reference sent by trial court under section 374 of Criminal Procedure Code, 1898 which is numbered as Murder Reference No,171 of 2011 for confirmation or otherwise of sentence of death awarded to Jamil Ahmed (who was on bail and escaped from the court on the pronouncement of impugned judgment), Muhammad Din and Muhammad Mushtaq (convicts). The appeal as well as the murder reference is originating from the judgment dated 25.02.2011 passed by the learned Additional Sessions Judge, Kasur, arising out of case FIR No,75/2004 dated 13.05.2004 for the offence under sections 302, 324, 148, 149, P.P.C. at Police Station Ganda Singhwala, Teshil and District Kasur. Learned trial court through the said judgment convicted and sentenced the appellants as well as their co-convict namely Jamil Ahmad as under:-- Under section 148, P.P.C. to undergo three years with fine of Rs,30,000/- each and in default thereof to further undergo two months SI each. Under section 324 read with section 149, P.P.C. to undergo eight years RI with fine of Rs,50,000/- each and in default thereof to further undergo six months SI each. Under section 302 (b) read with section 149, P.P.C. and awarded death sentence on two counts for committing qatl-i-amd of Munir Ahmed and Sadiq (deceased). The appellants and their co- convict were also directed to pay Rs,200,000/- on two counts to the legal heirs of the deceased persons under section 544-A, Cr.P.C. and in default of payment of the said amount, they were ordered to further undergo SI for six months consecutively. 2. Succinctly stated the case of the prosecution as unveiled by Muhammad Aslam complainant
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(PW.3) in FIR (Exh.PB/1) is to the effect that he is resident of Thathi Bukshey Wala and is cultivator by profession; that on 12.05.2004 in the evening Muhammad Sadiq, Munir Ahmad, Muhammad Yasin had come to their house in order to see him; that on 13.05.2004 at about 7:00 a.m., he along with Munir Ahmad, Sadiq son of Farzand Ali, Sadiq son of Hashim, Raj, Muhammad Ahmad, Muhammad Yasin, Yahya and Muhammad Saddique went to take a round of his agricultural land situated at Baghey Wala Khoh; that when they reached near the guava orchard, the accused persons namely Muhammad Din, Muhammad Nawaz, Muhammad Jameel, Zulfiqar Ahmed, Mushtaq Ali, Sarfraz and Muhammad Saleem alias Sundri, all armed with their respective rifles were hiding behind a hey mound and were sitting over there in consultation with each other; that suddenly they emerged at the scene and Muhammad Din exhorted his companions to catch hold of and to teach them a lesson for taking round of the land and to murder them; that Muhammad Nawaz fired from a shot from his rifle which hit on the front side of chest of Muhammad Sadiq; that the fire shot made by Jameel from his rifle hit at the right armpit of Munir Ahmad; that Muhammad Din made a fire shot from his rifle which hit Munir Ahmad on front side of right thigh and the fire made by Zulfiqar hit on the backside of shoulder of Munir Ahmad; that Muhammad Nawaz, Saleem alias Sundri, Muhammad Din and Sarfraz also made consecutive firing from their respective weapons, out of which the fire shot of Muhammad Nawaz hit at the chest of Muhammad Ahmed, whereas the fire shot made by Saleem alias Sundri hit at the mouth of Muhammad Ahmed; that the fire shot of Muhammad Din hit at the back of Muhammad Ahmad and the fire made by Mushtaq Ahmed landed on the front side of neck of Muhammad Yasin; that the fire shot of Sarfraz Ahmad hit Muhammad Yahya at his right thigh; that Munir Ahmad succumbed to the injuries at the spot; that all the accused decamped from the spot while making firing; that he (complainant), Muhammad Sadiq and Raj were taking the injured persons namely Muhammad Sadiq, Munir Ahmad, Muhammad Yasin and Muhammad Yahya to Kasur hospital but on the way, Sadiq son of Farzad died. The motive behind the occurrence statedly was the dispute of land between the parties. 3. The wheel of law was set in motion by Muhammad Aslam (complainant) on 13.05.2004 through his oral statement/farde-bayan (Exh.PB) before Muhammad Sadiq SI (PW.13) who on the basis thereof proceeded to chalk out the FIR (Exh.PB/1). Subsequent to the registration of FIR, Muhammad Sadiq SI (PW.13) along with other police officials visited the place of occurrence. He prepared application for postmortem examination (Exh.PQ), injury statement (Exh.PR) and inquest report (Exh.PS) of Munir Ahmad (deceased). He also collected blood stained earth vide recovery memo (Exh.PT). During the spot inspection, he secured three rifles (P.2,P.3,P.4), one.12 bore gun (P.5), a bag containing 40 live bullets (P.6/1-40), a bag containing 80 live bullets (P.7/1-80), a bag containing 140 live bullets (P.8/1-140), and a bag containing 40 empty cartridges (P.9/1-40). He also took into possession six empty cartridges of .8 mm (P.10/1-6), four empty cartridges of .12 bore (P.11/1-4), 54 empties of .7 mm (P.12/1-54) through recovery memo Exh.PG. He also prepared application for the postmortem examination (Exh.PU), injury statement (Exh.PV) and inquest report (Exh.PW) of Muhammad Sadiq (deceased). While on his way to police station, Muhammad Sadiq SI (PW.13) received information qua the death of Salim Sundri (one of the accused), upon which he along with ASI Bashir and other constables reached General Hospital, Lahore. On his arrival to hospital, Aisha Bibi wife of accused Muhammad Din met him and produced application (Exh.PZ) for the registration of FIR, which was forwarded to the police station and thereupon a cross version was recorded. Subsequent to that he prepared application for autopsy on the dead body of Salim (Exh.PAA) and also prepared his injury statement (Exh.PBB) as well as the inquest report (Exh.PCC). He thereafter sent the dead body of Salim to DHQ Hospital, Kasur for autopsy under the escort of Maqbool and Abdul Qayyum constables. He recorded the cross-version on behalf of Aisha Bibi and returned to the police station. He then visited the place of occurrence and took into possession
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blood stained earth from the place of murder of Salim alias Sundhri through memo Exh.PDD. He also recorded the statements of the relevant witnesses under section 161 Cr.P.C. as well as got prepared scaled site plan through Muhammad Tayyab Patwari on 25.05.2004. Investigation of this case was also conducted by Irshad Hussain SI (PW.14) who on 19.04.2007 arrested Jamil (convict). On 22.04.2007 in pursuance of his disclosure Jamil (convict) led to the recovery of .7 mm rifle (P.1) which was taken into possession vide recovery memo (Exh.PA). Since the convict could not produce any valid arms licence of the recovered rifle, hence, a separate case vide FIR under section 13 of Arms Ordinance XX of 1965 was registered against him. 4. The prosecution, in order to prove its case against the appellants and their co-accused produced sixteen PWs which include Muhammad Ahmed (PW.1), Muhammad Yahya (PW.2) and Muhammad Aslam complainant (PW.3) who are the eye-witnesses of the occurrence Dr.Ashfaque (PW.4) who furnished the medical evidence and Muhammad Sadiq SI (PW.13) and Irshad Hussain SI (PW.14) who conducted the investigation of this case. The remaining prosecution witnesses more or less were formal in nature. The learned trial court also examined Dr. Salimur-Rehman (CW.1). 5. Dr. Ashfaque Muhammad Akhtar (PW.4) on 14.05.2004 at about 9:00 a.m. conducted the post- mortem examination of the dead body of Munir Ahmad (deceased) and observed the following injuries:-- 1. A lacerated, deep going wound 1/2 x 1/2 cm on the back of medial part of right shoulder. Margins of the wounds were graphed and inverted. 2. A lacerated wound 5 x 4 cm on right axilla. Margins of the wound are averted. Corresponding hole of this injury was present on Qameez. 3. A lacerated wound deep going 1/2 x 1/2 cm on anterior lateral surface of middle part of right thigh. Margins of the wound were averted. 4. A lacerated wound 3 x 1/2 cm on anterior lateral surface of middle part of right thigh. Margins of the wound were averted. 5. A lacerated wound 6 x 1 1/2 cm on right side of head 11 1/2 cm from right ear underline bone was visible. According to the doctor, the cause of death in this case was shock due to severe haemorrhage occurred because of injuries Nos,1 and 2 which damaged right axillary blood vessels. The doctor further opined that injuries Nos,1 and 2 were ante mortem and sufficient to cause death in ordinary course of nature and were caused by firearm. The probable time between injury and death was stated to be half an hour approximately and between death and postmortem was described as about 26 hours. On the same day at 12:05 Noon, Dr. Ashfaque conducted the postmortem examination on the dead body of Muhammad Sadiq and observed the following injuries:- 1. A lacerated wound 2 1/2 cm margins graphed, on front of left side of chest, 5 cm from midline 7 cm superior medial to left nipple corresponding holes were present on Qameez and bunyan. 2. A lacerated wound 3-1/2 cm x 1-1/2 cm on anterior medial part of left axilla. Margins were lightly graphed. Corresponding hole was present on bunyan but not on Qameez. 3. A lacerated wound 7 x 3- cm oblique in shape on medial side of upper part of left upper arm corresponding hole was present on Bunyan and not on Qameez. 4. A lacerated wound 1 x 1/2 cm on posterio medial side of middle part of left upper arm 6 cm interio posterior to injury No,3. Corresponding hole was present on Qameez and bunyan. The doctor was of the opinion that the cause of death in this case was shock due to severe haemorrhage caused collectively by injuries Nos,1 to 4 resulting in the damage of major blood vessels in left axilla and left upper arm. According to him, all these injuries were ante-mortem and were caused due to firearm. According to him these injuries were sufficient to cause death in the
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ordinary course of nature. The probable time between injuries and death was stated to be half an hour and between death and post-mortem was described as 20 hours approximately. He on 13.05.2004 at 11:45 a.m., also medically examined Muhammad Ahmad (P.W-1) and observed the following injuries:-- 1. An oblique lacerated wound 3 x 1 cm margins inverted and graphed on right cheek. Depth not measured. X-ray was advised. 2. Lacerated wound 2 x 1 cm on just behind right mandible angle 1/2 cm below the lower end of right ear pinna. Margins everted and lightly graphed. DNM.X-ray was advised. 3. A lacerated wound 2 x 2 cm on right side of back of neck 5 cm right to midline. DNM X-ray was advised. Margins of this wound were lightly graphed. 4. An oblique lacerated wound 4-1/2 x 1-1/4 of middle of upper part of chest. Margins of the wound were lightly graphed. DNM. According to the doctor, the duration of these injuries was about three hours approximately and were caused through firearm weapon. He on 13.05.2004 at 9.05 a.m. also medically examined Muhammad Yaseen (Not produced as P.W.) and observed the following injuries:- 1. Lacerated wound 1/2 x 1/2 cm margins graphed and inverted on left lateral side of neck 3 1/2 below the lower end of left ear pinna. Bone was deep going. DNM. 2. Lacerated wound 2 x 1 cm area on medial side of back of right shoulder 2 cm from midline. Margins of wound were everted. DNM. According to the doctor, the probable duration of injuries was about two hours approximately and the kind of weapon used was firearm. He on 13.05.2004 at 10:30 a.m. also medically examined Muhammad Salim alias Sundri (one of the accused) and observed the following injuries:- 1. A lacerated circular deep going wound 1/2 x 1/2 margins graphed and inverted on right side of abdomen (in area of right iliac fossa). 8 cm inferior lateral to the umbilicus wound was bleeding. DNM. 2. A lacerated wound 1 x 1 cm margins everted on right lumber region 4-1/2cm from midline 2-1/2 cm above right iliac crest. Wound was bleeding profusely. DNM condition of the patient was very serious. According to the doctor, the patient was referred to LGH, Lahore and the probable duration of injury was about 1-1/2 hours approximately. The kind of weapon used was firearm. Dr. Salim ur Rehman (CW.1) on 14.05.2004 conducted the postmortem examination on the dead body of Muhammad Salim alias Sundri (deceased) and observed the following injuries:- 1. A circular wound of entrance of fire arm on right iliac fossa with inverted margins. 2. A circular wound of exit of firearm on the back of right side of abdomen. According to the doctor, the cause of death in this case was excessive haemorrhage due to injury No,1 (firearm injury) which damaged major blood vessels (iliac) and intestines. The doctor further opined that the injury was sufficient to cause death and was ante-mortem in nature. The probable time between injuries and death was stated to be 5-6 hours and between death and post-mortem was described as within 24 hours. 6. After the conclusion of prosecution evidence, the learned trial court examined the appellants and their co-convict namely Jamil Ahmed under section 342, Cr.P.C. Jamil Ahmed (convict) and Muhammad Din (appellant) in response to question "why this case against you and why the PWs have deposed against you", made almost the same reply. The reply made by Jamil Ahmad (convict) reads as under:-- "I and my brother Muhammad Nawaz are the owners in possession of the land including Khasra Numbers 1643 and 1625 Regarding which Aslam complainant and his brothers who are desperate
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persons and also has got criminal antecedents wanted to take illegal possession. We have planted guava groove in the said land and this piece of land was very fertile and was situated near the metalled road. The complainant Aslam and his brothers were adamant to take over the illegal possession of the said land from us. Consequently we were restrained to have a course from the civil court and we filed suit for perpetual injunction regarding 120 kanals of agricultural land situated in Khata No,88 comprising of various Khasra Nos,1625 and 1643 on 30.3.2004. The learned Civil Judge vide his order dated 1.4.2004 issued injunctive order against defendants Muhammad Aslam etc. We also approached Muhammad Tayyab Patwari PW, who got recorded Rapatt No,375 dated 8.4.2004 regarding the said injunctive order against Aslam complainant etc who were then residing at village Dauburji which is situated at distance of 15 kilometers from the place of occurrence. During the cross-examination PW.14 Tayyab also explained that vide Khasra Girdawari Ex. PW 14/1 regarding the said Khasra number guava groove owned and possessed by was entered in the revenue record. We according to the said Khasra Girdawari remained in possession of the said land till October 2005. In the garb of the present case, the complainant and his companions damaged our guava groove and my mother Aisah Bibi lodged FIR No,126/2004 dated 9.8.2004 at Police Station Ganda Singh Wala in spite of issuance of injunctive order passed by the civil court. Actually according to the cross version and statement of my brother Nawaz, he along with Salim alias Sundri were present in the guava groove and were watering the fields when complainant along with his companions nominated in the cross version being aggressors in order to forcibly tried to take possession of our land came there while armed with lethal weapons mentioned in Ex. PG and other weapons at the spot resorted to indiscriminate firing at Nawaz and Salim alias Sundri and Salim alias Sundri sustained firearm injuries at the hands of the complainant party. They resorted to firing in retaliation and that neither Muhammad Din my father, myself and my brother Zulfiqar and Mushtaq and Sarfraz (since dead) cousins of my father were present at the place of occurrence. I along with my said relatives have been roped in this false case while widening the net and in order to inculpate all our family members. My father Muhammad Din and Mushtaq were exonerated by all the IOs during the investigation. I was not present at the spot and is totally innocent. I am facing the agony of trial of this case since my arrest continuously." Mushtaq Ahmed (appellant) while answering to the same question made the following reply:-- "I am close relative of my co-accused Muhammad Din etc. I have no concern with the alleged incident. I was declared innocent by all the I.Os as I was not present at the alleged time and place of occurrence. The PWs have deposed falsely against me due to my relationship with my co- accused." Neither the appellants nor their co-accused opted to make statement under section 340(2) of Cr.P.C., however, they produced Mst. Ayesha Bibi and Muhammad Amin as DW.1 and DW.2 in their defence. 7. After the completion of trial, the learned trial court convicted and sentenced the appellant as mentioned in para one. Hence, the instant appeal and Murder Reference. 8. It has been contended by learned counsel for the appellants that though apparently the instant case is arising out of promptly lodged FIR, however the detailed perusal of the record reflects otherwise; that in the instant case the ocular account is furnished by the three witnesses who were found guilty of making dishonest improvements and omissions in their statements before the court, hence, are not worthy of any reliance; that from the perusal of the record it reasonably evinces that the complainant party became the victim of their own aggression when they tried to take forcible possession of the land belonging to the appellants; that the ocular account is strongly belied by the medical evidence as there are glaring contradictions between the two; that the eye- witnesses on account of multiple disputes and litigation with the accused persons were interested and inimical against them, hence, their testimony cannot be relied upon unless strongly
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corroborated and supported from other circumstances; that the initiation of aggression, which resulted into this unfortunate incident can safely be attributed to the complainant party as not only they committed the murder of the accused namely Saleem alias Sundri but during the spot inspection, the police also recovered the weapons and ammunition from the crime scene belonging to the complainant party; that there is unexplained and mysterious delay in holding the autopsy of the two deceased persons which has further damaged the theory of the prosecution case advanced by the eye-witnesses; that even during the course of investigation it was unearthed that the land in question was not only under the ownership of the appellants but also was in their possession; that the learned trial court while awarding the conviction to the appellants altogether ignored the defence version of the appellants, according to which Muhammad Nawaz and Saleem alias Sundri resorted to firing and that too only to counter the murderous assault launched by the complainant party; that since the statement of Muhammad Ahmad (PW.1) was recorded with considerable delay of one month, hence, he is not worthy of any credence; that there are many doubts and discrepancies arising out of the prosecution case, the benefit of which was not extended to the appellants. 9. On the other hand, learned Additional Prosecutor General assisted by learned counsel for the complainant strongly controverted the arguments advanced by learned counsel for the appellants and contended that the instant case is arising out of promptly lodged FIR; that in such prompt crime report the appellants are specifically nominated and that too in reference to the acts performed by them in the commission of crime; that the guilt of the appellants is established on the basis of three eye-witnesses, being residents of the same vicinity hence are natural witnesses; that the statements of three eye-witnesses are being duly supported from the medical evidence brought on record through Dr. Ashfaque Muhammad Akhtar; that out of three witnesses who furnished the eye-witness account one namely Muhammad Ahmed received firearm injuries during the occurrence and that such injuries on his person are the stamp of his presence at the crime scene, hence, his testimony is to be accepted even without there being any independent corroboration; that the recovery of .7 mm rifle affected on the disclosure and pointation of Jamil (appellant) provides sufficient corroboration to the case of the prosecution; that since the appellants have participated in the occurrence in which two persons lost their lives, whereas three others received firearm injuries, hence, they are not entitled to any leniency. 10.Arguments heard. Record perused. 11.The case of the prosecution, so to speak, primarily hinges upon the ocular account furnished by three witnesses namely Muhammad Ahmed, Muhammad Yahya and Muhammad Aslam (PW.1 to PW.3) and the medical evidence brought on record through Dr. Ashfaque Muhammad Akhtar (PW.4). The prosecution sought further corroboration from the motive which was canvassed as a land dispute between the parties and the recovery of .7 mm rifle affected from Jamil Ahmad (appellant) witnessed by Muhammad Ahmed, Muhammad Yahya (PW.1 and PW. 2). 12.It divulges from the record that the occurrence which gave rise to the registration of the instant case took place on 13.05.2004 at about 7:00 a.m. within the area known as Thathi Bakhshay Wala situated within the territorial jurisdiction of Police Station Ganda Singhwala, District Kasur. According to the record, the detail of the occurrence was conveyed to police through the statement of Muhammad Aslam (PW.3) at 9:30 a.m. which was transcribed into FIR (Exh.PB/1) by Muhammad Sadiq SI (PW.13). According to column No,4 of the FIR (Exh.PB/1), Police Station Ganda Singhwala is situated at a distance of 26-kilometers from the crime scene. From above, apparently it follows that the matter was promptly reported to the police. No doubt the prompt reporting of the crime to the police provides strength to the case of the prosecution as generally it excludes the possibility of fabrication of facts and false implication of innocent persons. However, since the menace of padding through the stoppage of station diary (Rozenamcha) etc. has penetrated
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deep into police working, hence, the Courts have to be vigilant while giving a finding regarding the time of the registration of crime report. Instead of blindly following the time of the report of the matter to the police as mentioned in the first information report, the Courts have to evaluate other attending circumstances as well in this regard. In the instant case, the autopsy of the dead bodies of two deceased persons was conducted on the following day by Dr.Ashfaque Muhammad Akhtar (PW.4) and for the solitary reason of non- availability of the police documents. It would be appropriate to make reference to the relevant extract from his testimony which is as under:-- "The dead bodies of Munir Ahmad and Muhammad Sadiq along with their papers were not produced before me for conducting autopsy. Had the papers along with dead bodies been produced before me, I would have conducted the postmortem examination on 13.05.2004." The above extract gives traces of the FIR not having been registered at the time mentioned therein. It further evinces from the statement of Muhammad Aslam complainant (PW. 3) that before eventful day they along with deceased persons and approaching the police station for the purpose of intimation regarding the occurrence, he shifted the injured persons and one of the deceased to the hospital and then proceeded to the police station for reporting the matter. In this regard, it would be in the fitness of things to reproduce the relevant portion from the examination-in-chief of Muhammad Aslam (PW.3) which is as under:-- "The dead body of Sadiq son of Farzand was brought to the hospital. Muhammad Ahmad, Yahyha and Yaseen were got Admitted in the hospital. Thereafter, I went to the police station and made my statement which is Ex.PB. It was read over to me and I thumb marked the same." The perusal of the medical record further unveils that Muhammad Ahmed, according to his MLC (Exh.PE/3) arrived in the hospital at about 11:45 a.m. From above, it can safely be gathered that the statement of Muhammad Aslam (PW.3) for the registration of FIR was recorded even thereafter. The features mentioned above cumulatively reflect…
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