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Petitioner: ZAHOOR AHMAD and 5 others VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Dost Muhammad Khan, Jehanzaib Rahim Title: ZAHOOR AHMAD and 5 others vs THE STATE Case No.:Criminal Appeals Nos.208, 217, Murder Reference No,4 and Criminal
JUDGMENT
Reported As: PLD 2005 Peshawar 221 Result: Order accordingly Judgment JUDGMENT DOST MUHAMMAD KHAN, J.---(1) Zahoor Ahmad (aged 33 years), (2) Ghulam Yousaf (aged 54 years), (3) Muhammad Refique (aged 47 years), (4) Arshad Khan (aged 37), (5) Fakhar Zaman (aged 44/45 years) sons of Gulab Khan, (6) Khalilur Rehman (aged 17/18 years) son of Ghulam Yousaf were tried on charges under sections 302/ 324/436/429/148/149 P.P.C. Along with their acquitted co-accused (7) Qamar Zaman, (8) Sher Zaman and (9) Waheed Ahmad by the learned A.S.J. Abbottabad and after finding them guilty on all the charges, upon conviction, they have been sentenced as follows:-- (i) under section 302 (b)/149, P.P.0 death sentence (on 9 counts), (ii) under section 429/149, P.P.0 for 3 years' R.I. Each. (iii) under section 436/149, P.P.C. For 7 years' R.I. Each, (iv) under section 148 read with section 140, P.P.0 for one year's R.I. Each. All the sentences of imprisonment were ordered to run concurrently. The appellants were also directed to pay Rs,2,00,000, each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased. Accused (1) Qamar Zaman, (2) Sher Zaman and (3) Waheed were, however, acquitted giving them benefit of doubt. 2. The appellants, have impugned their conviction and sentences, through the instant appeal while, the learned trial- Judge has sent a Murder Reference No,4/2003 for confirmation of their death sentences (o. n 9 counts). Shah Zaman complainant, has filed Criminal Appeal No,217 of 2003
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against the above three acquitted accused seeking their conviction. He has also sought enhancement of compensation vide Criminal Revision No,35/2003. 3. This gory incident took place on 18-3-2000, at about 10 p.m. In the house of deceased Muhammad Akbar etc. Of village Katha Kalanda within the jurisdiction of Police Station Nara, District Abbottabad. This judgment shall decide all the above petitions, to avoid repetition of the same facts and because, points of law involved are identical. 4. The crime was reported at 4 a.m. On 19-3-2000, on the crime spot by Shah Zaman (P.W.13) to Asif Gohar, S.-I. (P.W.15) wherein, he has stated that on the fateful night, at 10 p.m. He, along with his deceased brother (1) Muhammad Akbar (2), P.Ws Gulfraz, (3).Muhammad Ayub sons of Ali Zaman had assembled in the house of the deceased when, in the meanwhile, 1-Ghulam Yousaf, 2- Muhammad Rafique, 3- Fakhar Zaman, 4- Arshad, 5-Zahoor Ahmad sons of Gulab Khan, 6- Bashir Zaman son of Shadi Khan, 7- Qamar Zaman son of Sher Zaman, 8-Khalil son of Ghulam Yousaf and 9- Waheed Ahmed Sic) Muhammad Iqbal, their co-villagers/accused entered there duly armed with weapons making loud shout that none would be spared of the family of Akbar deceased and the houses would be set on fire. The complainant went out of the room along with Gulfaraz (PW-10) and Muhammad Ayub (P.W.14) to entreat them and begged for mercy but accused told him (complainant) that he shall leave the place to save his own life where after, the accused chained the door of room of Muhammad Akbar deceased from outside, locking the inmates inside while, appellant Zahoor Ahmad, put on fire a corner of the crime house with a flame of cigarettes lighter. After that accused unchained the door and started firing at the inmates, as a result Muhammad Akbar (aged 60/65 years), his wife Mst. Zarin Taj (aged 40/45 years) were hit and died on the spot. The accused also shot dead two buffalos, present in a portion of the room. Further added that because of the commotion and on the report of fire shots, Mst. Irshad Bibi, the sister of accused Ghulam Yousaf etc. Was attracted to the spot who attempted to separate the parties but she was also hit with the fire shot of the accused and died. It is further stated that the accused then killed Muhammad Bashir (aged 24/25 years) son of Muhammad Akbar, Mst. Abida (aged 12/13 years) daughter of Muhammad Akbar and Mst. Shamim (aged 40/45 years) wife of Muhammad Zaman by giving them blows with rifle butt, fists and kicks and then all the accused killed Mst. Ruqia (aged 3/4 years) Mst. Nooreen Bibi (aged 5/6 years) daughters and Muhammad Asif (aged 2 years) son of Muhammad Zaman (minors) by picking them up and striking against the floor while Siddique (P.W.11) and Mst. Arshad Bibi (aged 40/42 years) wife of Muhammad Bashir (not produced) took shelter under the cots in the crime room. After accomplishing the nefarious act, the accused took away the dead body of their sister towards their houses. The complainant has claimed to have identified the accused in the light of the burning lantern and moonlight. He along with the two P.Ws. Then ran away to save their lives. Motive for the crime was that Mst. Tahira alias Goga daughter of Saeed the sister's daughter of Ghulam Yousaf etc. Accused-appellants had illicit relations with Siddique P.W. And because of that the accused in a planned manner killed (9) persons along with two buffalos and two houses were burnt to ashes. On this Murasila report, case F.I.R No,20 was registered on 19-3-2000 at 6 a.m. By P. S Nara. 5. Injury sheets and inquest reports of all the victims were prepared and were sent to the mortuary for post-mortem examination. The dead body of deceased Irshad Bibi, sister of the appellants was recovered from their house. 6. During spot inspection, two empties of .12 bore, one empty of .30 bore and a missed cartridge of 8 m.m. Were recovered through memo. Exh. P.W.7/1 which were sealed into parcels No, 1, No,2 and No,3 along with one .30 bore spent bullet. Burnt wood ashes were also collected which were placed in sealed parcels Nos. 4 and 5. Blood secured from place of Irshad Bibi deceased was put in parcel No,6 while a plastic boot (left foot) of the said deceased having blood-stains was also put in parcel
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No,7. Through memo. Exh.P.W.7/2, blood-stained earth of deceased Irshad Bibi was secured from the house of Rafique appellant and was put into sealed parcel No,9. One repeater .12 bore shot gun was recovered from the house of Fakhar. Zaman appellant, at his pointation which was sealed into parcel No,10 while the cigarettes lighter used in the crime was recovered from Zahoor Ahmad appellant and was sealed in parcel No,11 along with a bandolier of .30 bore pistol. 7. Through memo. Exh.P.W.7/3 blood-stained garments of all the deceased were taken into possession and were sealed into parcel No,12 to parcel No,20 except that of deceased Abida, Ruqia Bibi, Nooreen, Muhammad Asif, Shamim Bibi and Muhammad Bashir as their clothes were having no stains of blood. Through memo. Exh.P.W.7/5 on 23-3-2000, three empties of 12 bore produced by Shah Zaman P.W., were taken into possession and were put in parcel No,21 while a D.B shotgun (.12 bore) was produced by Arshad accused on 28-3-2000 which was sealed into parcel No,22. Similarly one .30 bore pistol and one 8 m.m. Rifle were produced by Ghulam Yousaf accused on 9-4-2000, which were sealed in parcels Nos. 23 and 24 respectively. Muhammad Rafique appellant produced a .12 bore D.B. Shotgun on 9-4-2000, which, was taken into possession vide memo Exh.P.W.15/6 and was put in a sealed parcel No,25. Also a revolver .32 bore and one .12 bore S.B. Shotgun were recovered through memo Exh.PW.15/8 on 9-4-2000 from the house of Sher Zaman acquitted accused and were sealed into parcels Nos. 26 and 27 respectively. These two weapons were not sent to the Arms Expert like the rest. The Fire- arms Expert report Exh.P.W. 15/11 about he empties and the weapons is positive to the extent of a shotgun, .30 bore pistol, 8 m.m. Rifle and .12 bore repeater shotgun with two empties of the same bore which were belonging to Fakhar Zaman accused. 8. Accused Zahoor Ahmad, Fakhar Zaman, Sher Zaman and Qamar Zaman were arrested on 19-3- 2000 while accused Ghulam Yousaf, Muhammad Rafique and Khalil were arrested on 5-4-2000 when their bail before arrest was not confirmed. Arshad accused was arrested on 25-3-2000 from Military Hospital, Lahore while Waheed was arrested on 7-5-2001. Trial was held afresh from 12-5- 2001 on the arrest of accused Waheed and all the 16 P.Ws. Were re-examined, where after the accused were re-examined under section 342 Cr.P.0 but they did not wish to give evidence on oath or to produce defence and at the conclusion of the trial the impugned judgment was delivered. 9. We have heard the learned counsel for the appellants, for the complainant as well as for. The State and have gone through the record minutely. 10. While writing judgment, we found that Asif Gohar S, I. ,(PM.15) while deposing at the trial, has disclosed that before his arrival on the 'crime 'spot Younas A.S.-I. Of the police station was already present there and that he did not know as to whether he had gone to the spot because of the information/report conveyed to the police station by accused, namely, Ghulam Yousaf. The said A.S.-I. Was not examined at the trial. This fact, being an alarming one, thus, put us on alert so that the Court might not be deliberately misled and taken to a wrong conclusion by one or the other side, therefore, on 15-3-2005 we directed that Younas A.S.-I. Be called as a Court witness who was examined on 29-3-2005 and the learned defence counsel was directed to get instructions from the appellants as to whether they would like to record supplementary statement under section 342, Cr.P.C. Or not. The learned counsel categorically stated at the bar that he has consulted his clients on this point who do not want to avail this opportunity. To this effect questions and answers were reduced into writing and proper note was recorded. 11. Keeping in view the evidence and facts of the case, a legitimate inference is that the Investigating Officer and both the parties have suppressed some true facts and have given sharp twist to the same. Two different theories have emerged out of the facts of the case. The first one has been put forth by the prosecution in the F.I.R. As well as at the trial and the second one has
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been set up by the defence. In view of these circumstances the duty of the Court has become onerous to discover the true facts and the third probable theory. 12. The entire evidence of the prosecution on which the conviction of the appellants has been based consists of the following items:- (i) Ocular account of Shah Zaman complainant (P.W.8), Gulfraz (P.W.13) and Muhammad Ayub (P.W.9). The testimony of the 4th witness, namely, Muhammad Zaman is of a little legal value, therefore, it is not worth-consideration, (ii) the recovery of the different empties from the spot and the two .12 bore empties produced by Shah Zaman (P.W.8) to the Investigating Officer at the belated stage besides the recovery of crime weapons like .30 bore pistol, 8 m.m. Rifle, .12 bore D.B. And S.B. Shotguns and a repeater shotgun which have been allegedly used in the commission of the crime, (iii) the medical evidence furnished by Lady Dr. Seema Akhtar (P.W.1) and M.O. Dr. Shafiqur Rehman (P.W.2), (iv) the motive for the crime which is almost not in dispute between the parties, (v) the admission of appellant Zahoor Ahmad in his second statement under section 342, Cr.P.C. Wherein he has taken the entire responsibility for the tragedy on his shoulder. 13. As mentioned above, the present occurrence took place on 18-3-2000 at 10 p.m. Which was reported on 19-3-2000 at 4 a.m. At the spot by Shah Zaman (P.W.8) to Asif Gohar S.I. (P.W.15) and on the Murasila report the case was registered by Police Station Nara at 6 a.m. On 19-3-2000. The prosecution case, in view of the evidence on record, may- be divided into two transactions. According to the eye-witnesses, the accused entered the crime house/room at 10 p.m. Duly armed. Appellant Zahoor Ahmad made a loud shout that no one amongst the victims and P.Ws. Present there shall move. The P.Ws. Claim that they made efforts to entreat the accused asking them to cool down by their efforts did not bear fruits as the accused proclaimed that none of the inmates of the family of Akbar deceased would be spared that day and the house would be set on fire. Where after, the - accused confined Muhammad Akbar along with his family members inside the crime room by chaining the door from outside while P.Ws. Were asked to flee away. Accused Zahoor Ahmad put on fire a corner of the roof of the house through cigarettes lighter where after the door was opened and the accused started firing as a result Muhammad Akbar was the first victim who died on the spot because of the fire shots made by the accused. Mst. Zarin Taj wife of Muhammad Akbar was the second victim who was hit with the fire shot of accused when she tried to flee out of the crime bouse. The accused then shot dead the two buffalos. On the commotion and reports of fire shots Mst. Irshad Bibi deceased, the sister of the accused was attracted who also tried to prevent the accused from causing further damage and to separate the parties but the accused also fired at her who was hit and died on the spot. 14. After the above episode, the accused allegedly then entered the crime room and gave beating to Muhammad Bashir son of Muhammad Akbar, Mst. Abida daughter of Muhammad Akbar, Mst. Shamim Bibi wife of Muhammad Zaman with rifle butt, kicks and fists blows, as a result all the three died on the spot. The accused then started picking up Mst. Ruqia Bibi, Mst. Nooreen Bibi daughters and Muhammad Asif son of Muhammad Zaman minors and struck them repeatedly against the ground, as a result all the three died there and then while Muhammad Siddique (P. W.10) and Mst. Arshad Bibi wife of Muhammad Bashir took shelter beneath the cots and saved their lives. After accomplishing this brutal tragedy, the accused took away the dead body of their sister Mst. Irshad Bibi towards their house. It is further claimed that all the accused were identified by the P.Ws. In the light of the lantern (not produced) as well as moon-light. The P.Ws. Have stated that they ran away from the spot and saved their lives. 15. Motive for the crime shown in the F.I.R was reiterated by the P.Ws. At the trial. The two portions of the house of Muhammad Akbar were also burnt as a result of fire set by Zahoor Ahmad appellant
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through cigarettes' lighter. 16. The medical evidence furnished by Lady Dr. Seema Akhtar (P.W.1) and M.O. Dr. Shafiqur Rehman (P.W.2) who have conducted autopsy on the dead bodies of the 9 deceased is to the following effect:- (i) the cause of death of Mst. Shamim wife of Muhammad Zaman, aged 26/27 years, was due to asphyxia causing respiratory failure resulting into cardiac arrest. No mark of violence was found on her body, (ii) the cause of death of Mst. Abida Bibi, aged 12/13 years, was asphyxia causing respiratory failure resulting into cardiac arrest, (iii) cause of death of Muhammad Bashir deceased son of Muhammad Akbar, aged 24/25 years, was due to asphyxia, respiratory failure and cardiac arrest, (iv) cause of death of Muhammad Asif (minor), aged 2 years, son of Muhammad Zaman was asphyxia, respiratory failure and cardiac arrest, (v) cause of death of Mst. Nooreen Bibi, aged 5/6 years, was also asphyxia, respiratory failure and cardiac arrest, (vi) cause of death of Mst. Ruqia Bibi 3/4 years daughter of Muhammad Zaman, was due to asphyxia, respiratory failure and cardiac arrest, (vii) while cause of death of Muhammad Akbar son of Feroz Khan, aged 55/60 years, was due to a solitary entry wound of fire-arm 1/4 inch x 1/4 inch on the left buttock 2 inches below iliac crest. The corresponding exit wound 1/2 inch x 1/2 inch was found on left inguinal area 3 inches away from the left superior iliac spine. In his case blood vessels and left femoral artery were extensively damaged while small and large intestines were found injured, (viii)Mst. Zarin Taj has also received a wound of 1/2 inch x 1/2 inch on right chest and a second round of the same size on, the back of left side about 1 inch, from left scapula which appears to be the corresponding exit wound albeit it has not been explained in the post-mortem report by the lady doctor. In her case walls, ribs cartilage, pleurae, right lung, pericardium and heart were found damaged with semi-digested food in the stomach, (ix) the cause of death of Mst. Irshad Bibi wife of Nazur Rehman, aged 40/42 years, is because of fire-arm injury. A wound of 1 , inch x 1 inch on the 5th inter costal space on back side about 15 c.m. Towards the side of vertebral column. The second round of the size of 3 inches x 1/2 inch was found on the left of chest 3 inch away from left clavicle. In her case walls, ribs, cartilages, pleurae, left lung, pericardium and heart were severely damaged along with blood vessels. Semi-digested food was found in the stomach. 17. As pointed out in para 11 above, both the parties and even the Investigating Officer has not come out with a true story. Many aspects of the crime have either been left untraced or deliberately withheld from the Court. 18. The most intriguing aspect of the matter is as to how the transaction was initiated, has not been fairly disclosed. On this vital aspect, the P.Ws. Appear to have suppressed some material facts but one fact significantly clearer than crystal is that at the trial, stage all the three P.Ws. Have attributed major role in the tragedy to Zahoor Ahmad appellant albeit at some stages they have given twist to the facts involving the other appellants as well attributing them general role. The have attributed D.B. Shotguns as crime weapons to Ghulam Yousaf, Muhammad Rafique and Arshad appellants while 8 m.m. Rifle to Khalil accused and repeater shotgun to Fakhar Zaman appellant. More prominently .30 bore pistol used in the commission of the crime has been attributed to Zahoor Ahmad appellant who killed first Muhammad Akbar deceased as is evident from the statement of Shah Zaman complainant P.W.8 (at page 163). Similarly the killing of Mst. Irshad Bibi his own sister is also attributed to him. The killing of Mst. Zareen Taj is attributed to all the accused charged but
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tenor and sequence of testimony of the complainant Shah Zaman would show that none else but Zahoor Ahmad appellant was her assailant. 19. In the second rank, Ghulam Yousaf appellant is prominently figuring in the prosecution evidence who had chained the door of the crime room from outside after Zahoor Ahmad accused set its roof on fire. A look on the site-plan would show that Zahoor Ahmad appellant has been shown at point No,13 just in front of the door of the crime room. Deceased Muhammad Akbar is shown on point No,1 and blood was collected therefrom which directly comes in the firing line of Zahoor Ahmad appellant. Similarly, the second victim Mst. Zareen Taj who received fire-arm injury is shown at point No,9 towards the east of the crime room in the courtyard while the third victim Mst. Irshad Bibi, the sister of the appellants, is shown at point No,10-B. From both these places blood was collected. Close to point 10-B on the wall violence mark of a bullet has been shown and on the ground close thereto a spent bullet was recovered. Point A is shown on the northern wall, inside the crime room where the Investigating Officer has noticed numerous marks of bullets although none was extracted therefrom. This point is also in firing line of Zahoor Ahmad accused. The statements of the three eye-witnesses, Namely, Shah Zaman (P.W.8), Muhammad Ayub (P. W.9) and Gulfraz (P.W.13) given at the trial if are considered in juxtaposition with the site plan, would show that it was Zahoor Ahmad appellant who initiated and enacted the tragedy by first killing Muhammad Akbar and then Zareen Taj by firing at them with .30 bore pistol. From point D in the site-plan a .30 bore crime empty was collected. The .30 bore pistol of Zahoor Ahmad appellant, on its recovery, was sent to the Arms Expert with the crime empty of .30 bore whose report is in the positive. Thus Zahoor Ahmad appellant beyond any shadow of doubt is responsible for the murder of Muhammad Akbar and Mst. Zareen Taj by firing at them with his pistol. 20. The killing of the other three deceased named above by all the accused with kicks, fists or rifle butt blows and the killing of the minor victims through physical violence is of course a serious begging question looks askance in view of the clash between medical evidence and the ocular account. In the site-plan the three witnesses, namely Shah Zaman (P.W.8), Muhammad Ayub (P.W.9) and Gulfraz (P.W.13) have been shown at point No,22, point 24 and point 23 respectively. All these three points are situated away from the door of the crime room, thus the second episode where six deceased, namely, (1) Muhammad Bashir, (2) Mst. Shamim Bibi, (3) Mst. Abida (4) Muhammad Asif (minor), (5) Mst. Nooreen Bibi (minor), and (6) Mst. Ruqia Bibi (minor) were killed took place out of their sight and their claim to have seen/witnessed that transaction appears to be fallacious and unbelievable. In fact they have not witnessed the second episode as they were not in a position to see it. Moreover all these deceased have not died because of physical violence but the cause of their death was suffocation due to heavy smoke caused by enraging fire flames. Both the doctor and lady doctor have sqt arely shown the cause of their death as asphyxia, respiratory failure and cardiac arrest. This part of the story, given by eye-witnesses appears to be the dishonest invention on the part of the -Investigating Officer who had found blue and black patches on their bodies and mistaken it as violence marks. The medical opinion about cause of death of the said deceased is based on the personal observations of the two doctors and the syrnptoms shown in the post-mortem reports leave no doubt behind about their cause of death to be debated upon. The medical opinion based on symptoms observed on the six dead bodies is fully in consonance with the medical jurisprudence. Therefore, the testimony of the prosecution witnesses in that regard is liable to be discarded and is accordingly disbelieved. 21. The question, however, arises as to whether the roof of the crime room was set on fire by Zahoor Ahmad appellant or it was due to dried hay stalk stored for the buffaloes in the portion of the crime room which caught fire due to fire-shots made at the two buffaloes as the veterinary doctor has found fire-arm injury on the two carcasses. The second proposition was also suggested to the
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Court by the -prosecution counsel which does not appear unsound the second equal probable theory could be the one suggested by the defence in cross-examination to the P.Ws. That because of the fire-shots the lantern in the room was hit and bursted and. Due to spreading of kerosene oil the crime room caught fire. The height of the crime roof is shown 9 feet which was made of wooden planks/logs whether Zahoor Ahmad appellant could with little flame of cigarettes lighter set on fire the projected part of the roof does not appear sound and believable proposition. The spreading of fire in such a quick manner could be only result of kerosene oil which had drained out of the lantern having been hit by a bullet. For this reason it was neither taken into possession by the police nor it was produced at trial. Whatever the cause for the fire caught by roof might be as whether it was intentionally set on fire or it was because of accidental act of appellant Zahoor Ahmad, in both cases he cannot escape of criminal responsibility for enacting this tragedy as well. 22. The prosecution version, that Irshad Bibi, their own sister, was killed by the appellants because she dared to prevent them from causing further damage or loss to the human life does not appear to be a true version being not appealable to a prudent mind much less a judicial one. Whether a defenceless lady could be a hurdle in the way of armed men who had sworn to finish the family of the deceased Muhammad Akbar and whether she could in any manner thwart their designs of causing further damage is absolutely ridiculous and is an absurd proposition. It appears that the prosecution witnesses on this point have suppressed the true facts and have given sharp twist. To the true story making it one sided affair. In the site-plan the presence of Mst. Irshad Bibi is shown at point No,10-B wherefrom blood was recovered. From point-C her plastic boot having blood-stains was also recovered and taken into possession. The plastic boot bearing blood-stains, the blood recovered from her place shown in the site-plan and her clothes received from he doctor were placed in sealed parcel Nos. 8, 9 and 15 which were examined by the Chemical…
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