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Petitioner: MUHAMMAD KHALID and 4 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Munir Ahmed Mughal Title: MUHAMMAD KHALID and 4 others vs THE STATE Case No.: Criminal Appeal No, 623 of 1998 Date of Judgment:1999-04-25 Reported As: 2000 YLR 1517 Result: Order accordingly
JUDGMENT
JUDGMENT ' This is an appeal under section 410, Cr. P.C. Against the judgment dated 22-7-1998 passed by the learned Sessions Judge, Sialkot whereby the appellants have been convicted under section 148, P.P.C. And sentenced to undergo R.I. For one year with fine of Rs,5,000 and in default to undergo 3 months. R.I. They have also been convicted under section 302(c). P.P.C. And sentenced to 14 years, R.I. With fine of Rs,25, 000 and in default to undergo R.I. For six months. They have also been convicted under section 324/149, P.P.C. And sentenced to R.I. For 5 years and fine of Rs,5,000 and in default to undergo R.I. For one year. Benefit of section 382-B, Cr.P.C. Has been given on all counts. 2. Concisely speaking, the prosecution case is that at about 2-00 in the afternoon on 20-10-1995, Qaiser Siddique while riding a bicycle in the street had hit the minor Sumbal aged about four years and she had started weeping. Nazar Abbas and his brother Muhammad Ilyas who were working on the roof of the house raprimanded Qaiser Siddique who retaliated by hurling abuses at them. Munir Ahmad separated them on which Qaiser Siddique went away in frenzy. At about 6-00 p.m. On the same evening, Qaiser Siddique armed with hatchet, Furqan Bashir armed with Sota came outside the house of Nazar Abbas and asked him to come out and started abusing him. Hearing this commotion, Munir Ahmad came out of his house. Nazar Abbas, Zafar 104 Bashir Ahmad alongwith Ilyas were also attracted and attempted to reason out with both Qaiser Siddique and Furqan Bashir. In this process, when they had reached outside the house of Nazir Ahmad, Amin armed with revolver, Tariq Bashir armed with revolver, and Muhammad Siddique armed with Sota, Waseem armed with hatchet. Khalid armed with hatchet also came there. Amin raised Lalkara that firstly the complainant party had given a beating to the nephew and now they have insulted Qaiser hence they be killed. On it, Waseem accused inflicted a hatchet blow from the blunt side on the head of
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Ilyas who as a result fell on the ground. Thereafter, Furqan and Siddique inflicted Sota blows on Ilyas. Thereafter, Khalid caused an injury from the blunt side of his hatchet on the head of Zafar Ighal P.W. He was followed by Furqan and Siddique who caused Sota blow on the person of Zafar Iqbal. Then Amin and Tarty Bashir ineffectively fired one shot each from their revolvers. However, Nazar Abbas was able to snatch revolver from Tariq Bashir. Munir Ahmad raised shouts that Ilyas stands killed on which the accused persons while raising Lalkara made good their escape. 3. Munir Ahmad took both Ilyas and Zafar Iqbal in injured condition to Civil Hospital, Sialkot where they were medically examined by P.W.13 Dr. Abdul Rehman who issued M.L.R. Of Zafar Iqbal Exh. P.V. And M.L.R. Of Muhammad Ilyas Exh. P.T. From Hospital, Munir Ahmad left for Police Station Samberial but when he reached the More, Samberial Masjid which is only two acres away from the Police Station, he met A.S.-I. Muhammad Khan, P.W.9 and made his statement recorded by him Exh. P.A. At 12-55 a.m. The A.S.-I. Sent the same to the Police Station for registration of formal F.I.R. ("Exh. P.A./I ) which was recorded by A.S.-I. Mushtaq Ahmad P.W.1. The first informant also produced revolver allegedly snatched from Tariq Bashir accused and Medico-Legal Reports of both the injured. The revolver was taken into possession through memo. Exh. P.G. It was found containing 5 live bullets and one empty in its chamber. 4. In his supplementary statement, Munir Ahmad stated that Qaiser accused had inflicted from its blunt an hatchet blow on the back of Zafar Iqbal P.W. The 1.0. Proceeded to the Civil Hospital, Sialkot and moved an application Exh. P.O. And P.O./1 for seeking opinion of the doctor as to whether Muhammad Ilyas and Zafar Iqbal were fit to make statement or not? The doctor found and declared Zafar lqbal P.W. To be fit to make statement while Muhammad Ilyas was declared to be unfit to make statement. The 1.0. Recorded the statement of Zafar Iqbal P.W. And of all the eye- witnesses present in the hospital. In the hospital, the complainant produced the last worn clothes of Muhammad Ilyas and Zafar Iqbal injured to the 1.0. Which were P.3 to P.7, all blood-stained which were taken into possession vide memo. Exhs.P.H. And P.J. The I.O. Then went to the place of occurrence, inspected it, and prepared rough site-plan Exh.P.P. And secured into possession and sealed into parcel the bloodstained earth Exh. P.Q. On returning to the Police Station, he handed over the sealed parcel to A.S.-I. Muhammad Amjad P.W.14, the then Head Constable Police Station, Samberial, who kept it in the Police Malkhana. On 13-11-1995, he prepared Dacat and on 18-11-1995 handed over the parcel to Abdul Qadeer, Head Constable P.W.10 who on 30-11-1995 deputed Constable Nisar Ahmad P W.2 to take it to the Chemical Examiner and Serologist, Lahore who returned the reports Exh. PU and Exh. P.W. That the earth was stained with human blood. Meanwhile, Muhammad Ilyas was removed from Civil Hospital, Sialkot to General Hospital, Lahore where he died on 24-10-1995 at 5-00 p.m. Getting knowledge of his death, Muhammad Khan, A.S.-I. Went to General Hospital, Lahore examined the dead body of Ilyas, prepared the injury statement Exh. P.D. And inquest report Exh, P.F. He also obtained death certificate of the deceased Exh. P.R. And despatched the dead body under the escort of Muhammad Abbas, Head Constable P.W.5 to the mortuary at Daska where post-mortem examination was conducted by Dr. Mukhtar Ahmad, Medical Officer P.W.13. His report is Exh. PB and diagram of injuries is Exh.PB/1. Muhammad Abbas, Head Constable P.W.5 produced shirt and Shalwar of the deceased P-1 and P-2 before the I.O. Which he had brought from the mortuary. The I.O. Took them into possession vide memo. Exh. P.F. On 26-10-1995, the I.O. Deputed Masood Ahmad Bhatti, Draftsman P.W.12 to prepare the site-plan in the scale of 1 inch = 10 feet of the place of occurrence which he prepared and handed over to the 1.0. On 30-10-1995 which are Exh. P.S. And Exh. P. S/1. 5. The investigation was then entrusted to Muhammad Sarwar 5.-I. P.W.11 who arrested five accused persons, namely, Muhammad' Siddique, Qaiser Siddique, Waseem Sajjad, Furqan Bashir and Muhammad Khalid on 22-11-1995 and Muhammad Amin on 23-11-1995 and Tariq Bashir on 7-12- 1995.
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6. Qaiser Siddique while in police custody voluntarily led to the recovery of hatchet P-8 from his house which was taken into possession vide memo. Exh. P.K. The rough site-plan of place of recovery of hatchet is Exh. PK/1, on the same day, Muhammad Siddique led to the recovery of Sota P-9 which was taken into possession vide memo. Exh. P.L. And rough site-plan of the place of recovery Exh. P.L./1. On the same day, Waseem Sajjad got recovered hatchet P-10 which was taken into possession vide recovery memo. Exh. P.M. The rough site-plan of which is Exh. P.M./1. On the same day, Furqan Bashir accused led to the recovery Sota P-1 which was taken into possession vide recovery memo. Exh. P.N. And rough site-plan of this recovery was Exh. P.N./1. All the recoveries were witnessed by lhsanullah P.W.8 and Muhammad Sarwar S.-1. P.W.11. This 1.0. Found Tariq Bashir and Muhammad Khalid accused innocent. Subsequently, successive investigations were held. The last being by the S.S.P.. Crimes Branch who directed that the challan against all the accused persons be submitted. Accordingly: challan was submitted against all the seven accused persons who were charged under section 148/302/149/324, P.P.C. To which they pleaded not guilty and claimed trial. 7. At the trial, the prosecution examined 14 witnesses, namely, Mushtaq Ahmad, A.S.-I. (P.W.1), Nisar Ahmad, Constable (P.W.2), Dr. Mukhtar Ahmad (P.W.3), Mukhtar Ahmad (P.W.4), Muhammad Abbas, Head Constable (P.W.5), Munir Ahmad complainant (P.W.6), Zafar Iqbal (P.W.7), Ihsanullah (P.W.8), Muhammad Khan, A.S.-I. (P.W.9), Abdul Qadeer, H.C. (P.W.10), Muhammad Sarwar A.S.-I. (P.W.11), Masood Ahmad Bhatti Draftsman (P.W.12), Dr. Abdul Rehman (P.W.13) and Muhammad Amjad, A.S.- I. (P.W.14). Shafqat Bari, D.S.P., was examined as C.W.1. 8. The statements of the accused under section 342. Cr.P.C. Were recorded. It was conceded that Muhammad Siddique is the father of Qaiser Siddique accused. Tariq Bashir and Furqan Bashir accused persons are real brothers and are the sons of the real brother of Muhammad Siddique accused. Waseem and Khalid accused persons are real brothers and are sons of the brother of Amin accused. However, Amin and Siddique are not related directly with each other but belonged to the same brotherhood. Muhammad Siddique accused while denying his relationship in the occurrence or the recovery of Sota the alleged weapon of offence at his instance has maintained that he was falsely involved on account of party faction and enmity. That he was held innocent by Mr. Shafqat Bari, D.S.P. And Muhammad Aslam, S.P. Who had found that he had come to the place of occurrence empty-handed after the occurrence. He claimed to be a chronic patient of asthma and was not physically fit for a fight His son Qaiser Siddique also denied the motive part or the actual occurrence, as well as the recovery of hatchet at his instance and maintained that at the time of occurrence he was a minor and that according to Anwar Virk, S.P. Range Crime no hatchet was used in the occurrence. He claimed his innocence. Waseem Sajjad accused claimed that he alongwith Khalid and Amin accused persons lived in a different locality of the village and were not present at the scene of occurrence, that Amin accused and his brother Yousaf the father of this accused had got registered a criminal case under section 337-A, P.P.C. Through F.I.R. No, 130 of 1994 at P.S. Sumberial against Munir Ahmad, the first informant and the given up P.W. Ijaz etc., in which case, the respectables of the village had effected compromise but the present complainant party had nourished a grudge despite that compromise. He further maintained that in the last Election, the complainant party had supported Major Saifullah, M.P.A. While his relatives had opposed him and on this account Major Saifullah had a grudge against him. Khalid and Amin accused persons while making a total denial of their participation in the occurrence came up with the same defence as was offered by Waseem Sajjad accused. Furqan Bashir accused while denying his presence at the occurrence also denied to have led to the recovery of Sota, claimed minority at the time of occurrence. His version was that Zafar Iqbal injured P.W. Had called out Asif Bashir the brother of this accused and at some distance Muhammad Iqbal armed with Dang, Ilyas armed with hatchet and Sajid armed with Sarya and Aamir armed with Sota started belabouring Asif Bashir, on which
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the latter with the help , of certain other persons had in the darkness of the night and in their self- defence caused injuries to Zafar Iqbal P.W. And Ilyas deceased and then many persons assembled and indulged in brick batting which also injured the P.Ws. Tariq Bashir who is constable in the Police and on the relevant day stood posted at Police Station Nekapura, Sialkot, still claimed that at the time of occurrence he was present on his duty and his plea of alibi was accepted by all the five Investigating Officers. He maintained that his revolver was not snatched by P.W. In this occurrence. Muhammad Siddique, Furqan Bahsir, Tariq Bashir and Muhammad Amin accused persons produced 6 witnesses, namely, Muhammad Hanif Head Constable (D.W.1), Dr. Muhammad Asif (D.W.2), Dr.Muhammad Akram (D.W.3), Muhammad Anwar teacher (D.W.4), Sarshar Ahmad Cheema, Headmaster (D.W.5), Tariq Bashir as his own witness (D.W.6) and Mubarik Ali (D.W .7). 9. The learned trial Court passed the impugned judgment convicting Muhammad Siddique, Qaiser Siddique, Waseem Sajjad, Furqan Bashir and Khalid. While Tariq Bashir and Muhammad Amin accused were acquitted giving them the benefit of doubt. 10. The first contention of the learned counsel for the appellants is that the prosecution has not brought on record any evidence to prove the motive as alleged in the F.I.R. The motive as alleged by the complainant Munir Ahmad (P.W.6) in his F.I.R. (Exh. P.A.) is:--- " at about 2-00 in the afternoon on 20-10-1995, Qaiser Siddique while riding a bicycle in the street had hit the minor Sumbal aged about four years and she had started weeping. Nazar Abbas and his brother Muhammad Ilyas who were working on the roof of the house reprimanded Qaiser Siddique who retaliated by hurling abuses at them. Munir Ahmad separated them on which Qaiser Siddique went away in frenzy." 11. In response to this contention the learned counsel for the State submitted where direct evidence be unimpeachable absence of motive is immaterial. 12. Articles 21, 70 and 71 of the Qanune-Shahadat Order, 1984 are relevant to see as to whether the motive stood legally proved or not on the record. The said Articles are reproduced at verbatim as under:--- "Article 21. Motive, preparation and previous or subsequent conduct.---(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. (2) The conduct r any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the. Subject of any proceeding, is relevant if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. ' Explanation: (1) The word 'conduct" in this clause does not include statements, unless those statements accompany and explain acts other than statements but this explanation is not to affect the relevancy of statements under any other Article of this Order. ' Explanation. (2) When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. ' Illustrations. (a) A is tried for the murder of B. ' The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant. (b) A sues B upon a bond for the payment of money, B denies the making of the bond. ' The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, is relevant.
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(c) A is tried for the murder of B by poison the fact that, before the death of B, A procured poison similar to that which was administered to B. Is relevant. (d) The question is whether a certain document is the will of A. ' The facts that. Not long befbre the date of the alleged will A made inquiry into matters to which the provisions of the alleged will relate, that he consulted Advocates in reference to making the will and that he caused drafts of other wills to be prepared of which he did not approve, are relevant. (e) A is accused of a crime. ' The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case on appearance favourable to himself, or that he destroyed or concealed evidence or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant. (f) The question is whether A robbed B. ' The facts that, after B was robbed, C said in A's presence: ' the police are coming to look for the man who robbed B', and ' that immediately afterwards A ran away, are relevant. (g) The question is whether A owes B rupees 10,000. ' The facts that A asked C to lend him money, and that D said to C in A's presence and hearing 'I advise you not to trust A, for he owes B 10,000 rupees', and that A went away without making any answer, are relevant facts. (h) The question is whether A committed a crime. ' The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal. And the contents of the letter, are relevant. i) A is accused of a crime. ' The facts that, after the commission of the alleged crime. He absconded. Or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant. (j) The question is whether A was ravished. ' The facts that. Shortly after the alleged rape, she made_ a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant. ' The fact that without making a complaint, she said, that she had been ravished is not relevant as conduct under this Article though it may be relevant as a dying declaration ,under Article 46 paragraph (1) or as corroborative evidence under Article 153. (k) The question is whether A was robbed. ' The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the circumstances under which, and the terms in which the complaint was made, are relevant. ' The fact that he said he had been robbed without making any complaint is 'not relevant, as conduct under the Article, though if may be relevant as a dying declaration under Article 46, paragraph (1), or as corroborative evidence under Article 153." "Article 70. Proof of facts by oral evidence.---All facts, except the contents of documents, may he proved by oral evidence. ' Having defined in Chapter III the facts which need not be proved by reason of their being the subject of judicial notice or by reason of their having been admitted, the order now proceeds to consider the question as to how facts which require, proof may be proved. 'Oral evidence' and 'documentary evidence' are the two, important but not the only media of proof. This Chapter deals with only a part of this subject being limited in its application to "oral evidence", 'documentary evidence' being the subject-matter of a separate Chapter. The Chapter enacts two broad rules
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with regard to oral evidence; firstly that all facts except the contents of documents may be proved by oral evidence and secondly that oral evidence must in all cases be 'direct'. ' Article 71. Oral evidence must he direct.---Oral evidence must, in all cases whatever, be direct; that is to say:--- ' If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; ' If it refers to a fact which could be heard, it msut be the evidence of witness who says he heared it; ' If it refers to a fact which could be perceived by any other sense or in any other manner. It must be the evidence of a witness who says he perceived it by that sense or in that manner; ' If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: ' Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: ' Provided further that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection: ' Provided further that, if a witness is dead or cannot be found or has become incapable of giving evidence, or his attendance cannot be procured without an amount of delay or expense which under the circumstances of the case the Court regards as unreasonable, a party shall have the right to produce Shahadah ala al-shadadah (URDU TEXT) by which a witness can appoint two witnesses to depose on his behalf except in the case of Hudood." 15. In the instant case the hitting of the cycle by Qaiser Siddique while riding on it in the street to the minor Sumbal could be seen by minor Sumbal or Nazar Abbas and Muhammad Ilyas. As such to prove this fact Nazar Abbas and Sumbal minor were the best witnesses, to corroborate the version of the complainant. The statement of Qaiser Siddique is equally material to be kept in juxtaposition to find out the truth in the motive as alleged by the prosecution. Muhammad Ilyas died on 24-10- 1995 and during the period from 20-10-1995 to 24-10-1995 he was not medically fit to make any statement. Nazar Abbas was given up and Sumbal was not examined by the prosecution. The accused Qaiser Siddique in his statement under section 342, Cr.P.C. Denied this fact. 16. There was another angle and this was circumstantial and could serve as a piece of corroboration to prove the factum of motive as alleged but the record is silent about it. That was the medical examination of the Sumbal to see whether and where she was hit by the bicycle and the examination of the relevant part of the cycle which was hit and the inspection of the place where the cycle had hit her. The Investigating Officer has not discharged his duties carefully by not collecting these pieces of evidence at the time of investigating the case. Learned prosecutor has also not taken care to get those facts brought on record. The fault and slackness of the prosecutor cannot be rectified at the cost of the appellant/accused at this stage. 17. The result is that the prosecution could not prove the motive as alleged by the A complainant. What is the effect of this non-proving of the motive? In the case of Nisar Ahmad v, The State 1977 SCM R 175 the Hon'ble Supreme Court of Pakistan observed: "Generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime is best known to him and not to others. Absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye-witnesses if they be otherwise reliable." 18. The second contention of the learned counsel for the appellants is that there is delay of 7 hours in lodging the F.I.R. Without any plausible explanation for the same.
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19. In response to this contention the learned counsel for the State has submitted that the delay in lodging the F.I.R. Was due to taking the two injured, one of whom was in precarious condition, to get them medically treated. She urged that the saving of life of the injured was the first priority and it was but natural human behaviour at such occasions. 20. It is an admitted fact on the record from the deposition of the complainant (P.W.6) that incident took place on 20-10-1995 at 6 p.m. The F.I.R. Was lodged at 12-55 a.m. The distance between the village Malkhanwala the place of occurrence and P.S. Sambrial has been proved on record as only 4 kilometres. No, 1494 of 1995 (Exh.P.T.) which is in respect of Medico-Legal Examination of Muhammad Ilyas, the examination was conducted on 20-10-1995 at 7-45 p.m. And according to M.L.R. 1495 of 1995 (Exh. P.U.) the Medico-Legal Examination of injured Zafar Iqbal was conducted on 20-10-1995 at 8 p.m. By the Medical Officer, Civil Hospital, Sialkot. It has come on record through the deposition of Zafar Iqbal (P.W.7) that the injured were first brought from village to Civil Hospital, Sumbrial at 7 p.m. From where from Masjid Morr the P.S. Is one furlong. The condition of the injured being precarious the doctor of Sambrial did not examine the injured and referred them to Sialkot where they reached at 7-45 p.m. Thus, if an hour is counted as coming back to Sambrial from Sialkot the F.I.R. Should have been lodged till 9 p.m. The delay of 3.55 hours is without explanation. The contention of the learned counsel to that extent is, thus, proved on record. 21. The third contention of the learned counsel for the appellants is that two families were involved in this case due, to previous enmity. P.W.6 complainant has admitted that a criminal case was got registered against him by Muhammad Yousuf, father of Waseem accused. The F.I.R. Of which has come on record as Exh. D.A. Further that on the same evidence, Muhammad Amin and Tariq Bashir have been acquitted by the trial Court and that even the trial Court itself has stated in the judgment that the prosecution story was doubtful and that rule of consistency demanded that where the facts and circumstances are the same, benefit of doubt should have come to…
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