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Petitioner: MUHAMMAD SAJJAD and another VS Respondent: THE STATE and others
Court Name: Lahore High Court Judge(s): Ijaz Ahmad Chaudhry, Muhammad Farrukh Mehmood Title: MUHAMMAD SAJJAD and another vs THE STATE and others Case No.:Criminal Appeals Nos.779, 1018, Criminal Revision No.588 and Murder
JUDGMENT
Reported As: 2007 YLR 2502 Result: Order accordingly Judgment JUDGMENT ' IJAZ AHMAD CHAUDHRY, J.---Muhammad Sajid appellant was convicted for an offence. Under section 302(b), P.P.C. As 'Taz'ir' vide judgment dated 29-4-2002, handed clown by the learned Additional Sessions Judge, Gujranwala for conunitting 'Qatl-i-Amd' of Muhammad Imran Ashraf and Aman Ullah deceased and was sentenced to death on two counts with direction to pay a sum of Rs.1,00,000 each to the heirs of the above said deceased by way of compensation under section 544-A, Cr.P.C. Which was directed to be recovered as arrears of land revenue or in default of payment thereof to further undergo S.I. For six months. However, through the same judgment, co- accused Muhammad Maalik and Muhammad Sarfraz were acquitted of the charges by the learned trial Court while extending benefit of doubt to them. Muhammad Sajid appellant has challenged his conviction and sentence before this Court through Criminal Appeal No.779 of 2002 while Muhammad Ashraf complainant has preferred Criminal Appeal. No.1018 of 2002 against the acquittal of Muhammad Maalik and Muhammad Sarfraz and Criminal Revision No.588 of 2002 seeking enhancement of compensation awarded to Muhammad Sajid convict-appellant. All these matters have been heard by us along with Murder Reference No.822 of 2002 sent by the learned trial Court under section 374, Cr.P.C. Seeking confirmation of the sentence of death passed by the learned trial Court against Muhammad Sajid appellant and are being disposed of jointly through the present consolidated single judgment. 2. Precisely the facts of the prosecution case set up in the F.I.R. (Exh.PGG/1) got lodged by Muhammad Ashraf complainant (P.W.9) are that he was resident of Mohallah Amir Park and was a
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school teacher by profession. On 3-7-1996 at about 8-00 p.m. The complainant along with his family members was present in the house and came out to the main gate after hearing the doorbell. In the street the tube light was on and Aman Ullah deceased pupil of the complainant who had come to take matriculation result card was standing at the outer door. The complainant was talking with Aman Ullah. In the meanwhile, Muhammad Ithran Ashraf son of the complainant also came out of the house. Then from the Southern side a Suzuki Carry Van bearing Registration No:5888/JGA stopped near to them in the street and out of said vehicle Muhammad Maalik (acquitted accused) armed with .12 bore gun, Muhammad Sajid appellant armed with .222 .Bore rifle and Muhammad Sarfraz (acquitted accused) armed with .222 bore rifle, along with two unknown persons who were armed with fire arms, (who could be identified on coming before them) came out. Muhammad Maalik (acquitted accused) raised a Lalkara that Muhammad Imran Ashraf deceased be put to death whereupon Muhammad Sajid appellant fired two shots with the rifle hitting Muhammad Imran Ashraf deceased on his belly and right arm due to which he fell down. Then Muhammad Sarfraz (acquitted accused) fired shot with the rifle which hit Aman Ullah deceased on his left shoulder, who also fell down. The complainant raised noise, whereupon the accused fled away from the place of occurrence towards the D.C. House Road on the same Suzuki Carry Van. Muhammad Aslam (P.W.10) and Khan Muhammad (not produced) saw the whole occurrence besides the complainant (P.W.9). Muhammad Imran Ashraf and Aman Ullah deceased died at the spot. 3. The motive behind the occurrence was alleged to be that in the month of preceding April, Muhammad Nasir son of Muhammad Maalik (acquitted accused) was murdered and a case was registered against one Shakeel Ahmad nephew of the complainant along with others. Due to this enmity, Muhammad Imran Ashraf was got murdered along with Aman Ullah deceased. 4. The investigation of this case was conducted by Muhammad Salim Butt, S.H.O./Inspector (P.W.11), Malik .Tahir Mahmood, SDPO/D.S.P. (C.W.1) and Raja Muhammad Farooq Sajid, D.S.P. (C.W.2) and during the investigation dead bodies of Muhammad Imran Ashraf and Arnan Ullah deceased were inspected, injury statements and inquest reports were prepared, statements of the witnesses under section 161, Cr.P.C. Were recorded, the place of occurrence was inspected, bloodstained earth was secured, rough site-plan of the place of occurrence was prepared, the dead bodies of both the deceased were sent to the mortuary for autopsy, the last-worn clothes of the both the deceased were received, a formal site-plan of the place of occurrence was got prepared, Suzuki van bearing registration No.5888/JGA was taken into custody, the appellant and the acquitted accused were arrested and after completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court. 5. At the commencement of the trial, the learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellant and the acquitted accused framed the charge under sections 302/148/149, P.P.C. Against them on 17-10-2000, to which they pleaded not guilty and claimed to be tried. 6. During the trial the prosecution produced as many as eleven witnesses in support of its case. The ocular account of the incident in question was furnished by Muhanunad Ashraf complainant (P.W.9) and Muhammad Aslam (P.W.10) who also deposed about the motive. The medical evidence was provided by Dr. Shaukat Khurshced (P.W.6), who on 4-7-1996 at 11-00 a.m. Had conducted the post-mortem examination on the dead bodies of Muhammad Imran Ashraf and Aman Ullah deceased. P.W.5 Masood Ahmad Bhatti, Draftsman on the pointing out of the witnesses and on the instructions of the police prepared scaled site-plan while Muhammad Salim Butt, S.1-1.0./Inspector (P. W , 11) Malik Tahir Mahmood S.D.P.O./D.S.P. (C.W.1) and Raja. Muhammad Farooq Sajid, D.S.P. (C.W.2) had stated about the various steps taken by them during the investigation of this case. The other witnesses are of formal nature.
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' In their statements recorded under section 342, Cr.P.C. The appellant and the ' acquitted accused had denied and controverted the allegations levelled against them by the prosecution and professed their innocence. However, to a question that "Why this case against you and why the P.Ws. Deposed against you?", Muhammad Sajid appellant replied in the following terms:-- "I, my brother and father have been falsely implicated in this case due to previous enmity. The deceased in this case were the members of M.S.F. Gujranwala. The opposite while are known as ATI, there are criminal litigation in between MSF and ATI and so many criminal cases were registered against those parties. On 11-4-1996 my brother Nasir and other family members along with me were present in our house at night time. Shakeel Bhateeja of the complainant and others who were active members of MSF entered in my house and attacked my brother Nasir, who was murdered and my other brother Ijaz was seriously injured along with me by the fire shots in this regard a case F.I.R. No.132 of 1996 dated 11-4-1996 under sections 302/324/148/149, P.P.C. Was registered against Shakeel Ahmad Bhateeja of the complainant and his other companions. That case is still pending against absconder accused and the said Shakeel was also absconder along with his companions in that case. I, Maalik my father, Sajid my brother; Ijaz my brother; my mother Mst. Irshad Bibi and my sister Mst. Samina Bibi were the eye-witnesses in that case and I and my brother and father were the P.Ws. Against Bhateeja of the complainant. Some armed unknown persons had killed the deceased persons but the complainant party after consultation with the police got registered this case against us. The P.Ws.. Are inter se and were the residents of village Bhoban Khurd Hafizabad The investigation of this case conducted by different police officers. I my brother Sarfraz and father Maalik were declared innocent by the local police and D.S.P./SDPO City Circle Gujranwala. Later on, I was residing in Khanqah Dogran in those days when this occurrence took place, I also produced sufficient evidence in his defence before the D.S.P. Farooq Sajid, who declared him innocent, during the investigation, a Suzuki Van was also taken into possession vide recovery memo. Exh.PK, whom about the ownership of above said van were questioned on this aspect, the case would have been investigated by the police, but the true and the real story of the occurrence would have been come out.. I, my father Muhammad Maalik and my brother Sarfraz are innocent in this case. ' Muhammad Maalik and Muhammad Sarfraz (acquitted accused) in reply to the above said question also endorsed the same reply. However, they had not opted to make statements under section 340(2), Cr.P.C. On oath, but they produced Muhammad Shahid and Muhammad Ramzan as D.W.1 and D.W.2, respectively and also tendered certain documents in their defence. The learned trial Court in order to reach at the just conclusion of the ease also examined Malik Tahir Mahmood, D.S.P. And Raja Muhammad Farooq Sajid, SP as C.W.1 and C,W.2, respectively. 8. Upon conclusion of the trial the learned trial Court, after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt, he was convicted and sentenced by it as mentioned and detailed above. However two of the co-accused were acquitted through the same judgment. Hence, all these cases before this Court. 9. The learned counsel for the appellant contends that it was a night occurrence and source of light was disputed one as according to Masood Ahmad Bhatti, Draftsman no place had been shown in the site-plan where the light was available and the Investigating Officer also explained that there was no light that. Suzuki Van which was used during the incident had been snatched from the D,Ws. At 8-00 p.m. While the incident in the present case had taken place immediately thereafter and if the accused in the present case had snatched Suzuki Van from the D.Ws. They would have not made statements in favour of the appellants and the acquitted accused; that the Investigating Officer during the cross-examination explained that D.Ws. Were joined in the investigation, who were the most natural witnesses as they were the persons from whom Suzuki van was snatched but they did not support the prosecution story that the appellant or the acquitted accused were the same persons; that both the eye-witnesses were inimical towards the
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appellant and .The acquitted accused; that it was not proved that the injuries were caused with rifle; that the natural evidence was not brought on the record by the prosecution; that P.W.10 Muhammad Aslam was not present at the spot as he was cultivator according to the profession shown by him, who admitted during the cross-examination that he used to cultivate land at village Bukhan Khurd District Hafizabad which according to Muhammad Ashraf complainant (P.W.9) was at a distance of 40/50 miles from the place of occurrence, thus he was chance witness, but he failed to explain any reason for . His being present at the spot; that admittedly there was raining at the place of incident at the time of occurrence and the only reason to see the incident had been shown by P.W.9 Muhammad Ashraf complainant was that on hearing the door bell he came out and saw the incident as Aman Ullah deceased had come at the spot in order to take matriculation certificate; that during .The investigation no such card was taken into possession by the Investigating 'Officer and the best evidence has not been produced; that even the said card was not found in the pocket of Aman Ullah deceased or produced by the complainant; that the reason for being present at the spot given by the complainant is not supported by any connecting evidence; that it has been established on the record through the statements of the Investigating Officers that there were two groups of students one belonged to Muslim Students Federation and the other belonged to Anjuman Tulaba-i-Islam who were on criminal litigation with each other in the days of the occurrence; that the medical evidence did not support the ocular account due to the size of the injuries received by Imran Ashraf deceased and possibility of firing at him by two different persons cannot be ruled out; that abscondance of the appellant could not be proved on the record as the documents produced before the learned trial Court were carbon copies of the original; that both the eye-witnesses were not present at the spot and they had not seen the incident who had failed to prove their presence at the spot at the time of incident and only involved the appellant and the co-accused on suspicion due to the previous enmity and the motive is always considered to be a double edged weapon; that there were contradictions in the statements of both the eye-witnesses; that acquittal of the co-accused of the appellant namely Muhammad Maalik and Muhammad Sarfraz on the same evidence from the charges of murder of Muhammad Imran Ashraf and Aman Ullah deceased by the learned trial Court had created a serious dent in the prosecution's case towards the involvement of the appellant as well, and thus the same eye-witnesses could not be believed by the learned trial Court against the appellant in the absence of any independent corroboration, which is lacking in the present case; that the post- mortem examinations on the dead bodies of both the deceased had been conducted with the delay of about 26 hours after the incident which shows that the F.I.R. Was not got registered with such promptitude as claimed by the prosecution, but the time was consumed in concocting the story and prays for acquittal of the appellant and setting aside of the impugned judgment of conviction and sentence. 10. On the contrary, the learned counsel for the complainant and the learned Additional Prosecutor General on behalf of the State have maintained in unison that F.I.R. Was registered with promptitude; that the defence story is not borne out from the record; that heinous offence had been committed by the appellant; that both the eye-witnesses had sufficiently explained their presence at the spot at the time of occurrence as they were the naturals witnesses and the incident had taken place in front of the house of the complainant and P.W. 10 Muhammad Aslam was also present there as he was also residing at the same house at the time of occurrence; that the eye-witnesses and the accused were previously known to each other and there was no question of misidentity of the accused; that the motive was proved beyond any shadow of doubt and there was no reason to falsely implicate the appellant and the co-accused in the present case if they had no participated in the case in hand; that the eye-witnesses remained consistent on material points regarding the time, place of occurrence and the manner in which the occurrence
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had taken place; that the medical evidence fully supported the prosecution's case and the prosecution had succeeded in proving the case against the appellant and Muhammad Sarfraz co- accused beyond any shadow of doubt and the Criminal Appeal filed by the appellant may be dismissed while the Criminal, Appeal filed by Muhammad Ashraf complainant/petitioner to the extent of the Muhammad Sarfraz respondent/accused may be accepted as he was attributed the single fire-arm fatal injury on the person of Amanullah deceased and there was no reason for his acquittal when the piosecution evidence had been believed to the extent of Muhammad Sajid appellant, who was attributed fire-arm injuries on the per son of Muhammad Imr an Ashraf deceased; that the substitution of the main accused is a rare phenomenon and that compensation awarded to Muhammad Sajid appellant may also be enhanced besides the confirmation of the death sentence as it was a case of heinous nature wherein two innocent young boys had been killed by the appellant and Muhammad Sarfraz acquitted accused in a brutal manner on account of previous enmity. 11. We have heard the learned counsel for the parties and perused the record with due care and caution. 12. The occurrence in the present case according to the prosecution had taken place at 8-00 p.m. On 3-7-1996 within the area of Mohallah Amir Park Street No.1 situate one k.,m. Away towards North from Police Station Civil Lines District Gujranwala whereas the matter was claimed to he reported by Muhammad Ashraf complainant (P.W.9) through statement (Exh.PGG) recorded by Muhammad Salem Butt S.H.O./Inspector (P.W.11) at Mohallah Amir Park Street No.1, the same night at 9-00 p.m. On me basis of which formal F.I.R. (Exh.PGG/1) was drafted by Noor Sultan Moharrir/A.S.-I. Under sections 302/148/149, P.P.C. The same night at 9-20 p.m. According to P.W.11 Muhammad Salim Butt, Inspector/S.H.O. After recording the statement of the complainant he had prepared the injuries statements on the dead bodies of both the deceased and thereafter sent the dead bodies to the mortuary for autopsy through the constables namely Muhammad Asghar (not produced) and Muhammad Arif (P.W.2). According to the prosecution own case the police station was at a distance of 1-00 k.m. From the place of occurrence while the D.H.Q. Hospital was at a distance of only 1 1/2 k.m. From the police station, but according to P.W.6 Dr. Shaukat Khursheed, C.M.O. The police papers were received at 11-00 a.m. And not before that on 4-7-1996. Had the statement of the complainant been recorded with such promptitude and the dead bodies of both the deceased escorted to the mortuary immediately after recording the statement of the complainant, the post- mortem examination would have been conducted much earlier and not with the delay of 15/16 hours. The very reason brought on the record for delayed post-mortem was that.The police papers reached the doctor at 11-00 a.m. Only, which is sufficient to draw an inference that the F.I.R. Was not recorded with such promptitude as claimed by the prosecution and possibility of recording it after the preliminary investigation cannot be ruled out. The Honourable Supreme Court has declared the A maxim for corroboration in Ata Muhammad's case (1995 SCM R 599) which is reproduced as under:-- "We know by our experience that time of recording of F.I.R. Is not always genuine. The police after learning about the commission of the crime keeps the space in the daily diary (Roznamcha) and a page in the F.I.R. Register blank for incorporating therein the gist of the ,information, the factum. Of registration of the case and the detailed report subsequently, in the light of preliminary investigation made by it. Furthermore, in this case the F.I.R. Was lodged by Bali eye-witnesses himself. So his previous statement recorded in the F.I.R. Does not come from any distinct source. It is well settled that a witness cannot corroborate himself by repeating the version before different persons on different occasions. The evidence at the trial cannot be corroborated or reinforced by proving that the witness had made a similar statement to a third party on a previous occasion. Mere repetition of a story will not give it any force or prove its truth."
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Hence, no corroboration can be sought from the F.I.R. To the ocular account that the names of the witnesses were immediately introduced and the accused were nominated with specific roles leaving no possibility for concocting a story, for their false implication and the prosecution evidence has to be seen with utmost care and caution. 13. To prove the ocular account the prosecution produced Muhammad Ashraf complainant (P.W.9) and Muhammad Aslam (P.W.10). Muhammad Ashraf complainant (P.W.9) was father of Muhammad Imran Ashraf deceased while P.W.10 Muhammad Aslam was brother of the complainant and paternal uncle of Muhammad Imran Ashraf deceased. Aman Ullah deceased was son of the friend of the complainant and also pupil of the complainant. As such both the eyewitnesses were related inter se and with the c deceased closely. It is also admitted fact that Nasir son of Muhammad Maalik (acquitted accused) and brother of Muhammad Sarfraz (acquitted accused) and Muhammad Sajid appellant was murdered on 13-4-1996 in which Shakeel Ahmad nephew of the complainant was one of the accused and he was yet to be arrested when the present incident had taken place. So there was enmity between the parties due to the previous incident. In such circumstances both the eye-witnesses can be I? Termed as interested witnesses. In Niaz alias Niazoo and another v. The State (1993 SCM R 1966) the Honourable Supreme Court held that the eye-witnesses being highly interested in the background of previous enmity could not be relied upon unless corroborated by independent and unimpeachable source. The prosecution had the onus to prove the case against the accused beyond shadow of doubt. Although the incident had taken place in front of the house of the complainant but it was explained by the complainant (P.W.9) and Muhammad Aslam (P.W.10) that the incident had lasted within 1 1/2 minutes when the accused came at the spot and Suzuki Van came there, who started firing at the deceased. The claim of the complainant was that he was inside the house along with the other family members when the door bell rang whereupon he came out and at the door of the house Aman Ullah deceased was standing who had come to the house of the complainant in order to obtain matriculation result card as Muhammad Ashraf complainant was Headmaster of the school. As per prosecution own case both the deceased were present outside the house per chance, and it was not their normal routine to be present there at the time of the occurrence. So it cannot be expected that the accused were having knowledge about I their presence there and had come there with premeditation for the occurrence. The incident had lasted only within 1 1/2 minutes and it was not possible for the complainant to witness the incident from inside the house. The only reason for the presence of the complainant .At the spot that Aman Ullah had come there in order to take his matriculation result card could not be proved on the record through any connecting evidence as the said matriculation result card was never produced before the Investigating Officer and no such result card was even found in the pocket of any deceased or found lying, at the spot. There is also no evidence on the record that the complainant had brought result cards of the students at home and used to distribute the same to the students from there. No student was produced during the investigation, who had earlier taken the result card from the complainant after visiting his house. Even otherwise, the story for coming of Aman Ullah deceased to the house of the complainant when there was rain to bring the result card does not seem to be plausible as the complainant admitted that it was raining at the spot, who firstly stated the rain had stopped but subsequently stated that it was drizzling. On the other hand the Investigating Officer and Muhammad Aslam (P.W.10) admitted that it was raining. Thus doubt has been created regarding the presence of the complainant at the spot immediately before the occurrence and seeing of the same. 13. There is another aspect of the case that the motive of the incident set up by the prosecution was due to the murder of Nasir son of Muhammad Maalik (acquitted accused) the accused had committed the murder of the deceased. It is admitted fact that none of both the deceased were
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the either accused in the said murder or they were the eye-witnesses in any of the criminal case against the accused party and if the accused including the appellant had any intention to commit the murder of any of the relative of the deceased the three witnesses namely Muhammad Ashraf complainant (P.W.9) Muhammad Aslam (P.W.10) and Khan Muhammad (given up P.W.) would also have been caused harm by the accused who were in full control of the situation being armed with fire-arm weapons and none was there to resist them. The complainant is also not found a truthful witness, who denied that the deceased Muhammad Imran Ashraf was student and also showed ignorance that there were two rival groups of students, namely, Muslim Students Federation and Anjuman Tulaba-i- Islam, who were indulged in the criminal litigation with each other and earlier several incidents had taken place between them. Muhammad Aslam (P.W.10) firstly stated that Muhammad Imran Ashraf deceased was student but subsequently tried to explain that he was not student at the time of the incident. It appears that the…
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