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Petitioner: MUHAMMAD AKRAM and 2 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Asif Saeed Khan Khosa, Ijaz Ahmad Chaudhry Title: MUHAMMAD AKRAM and 2 others vs THE STATE Case No.:Criminal Appeal No,464 Murder Reference No,110 and Criminal Revision
JUDGMENT
Reported As: 2006 MLD 1973 Result: Order accordingly Judgment JUDGMENT ' IJAZ AHMAD CHAUDHRY, J.---This judgment will dispose of Criminal Appeal No, 464 of 2003 filed by Muhammad Akram, Muhammad Afzal and Fayyaz Ahmad appellants against their conviction and sentence and Criminal Revision No,382 of 2003 filed by Mst. Parveen Bibi complainant for the enhancement of the sentences and compensation along with Murder Reference No,119 of 2003 sent by the learned trial Court under section 374, Cr.P.C. For confirmation of death sentence as all these matters have arisen from the same judgment, dated 20-3-2003 passed by the learned Additional Sessions Judge, Sheikhupura through which he has convicted appellants Muhammad Akram, Muhammad Afzal and Fayyaz Ahmad under section 302(b), P.P.C. Muhammad Akram appellant has been sentenced to death while the remaining appellants Muhammad Afzal and Fayyaz Ahmad have been sentenced to imprisonment for life and they have been directed to pay an amount of Rs,50,000 each as compensation to the heirs of the deceased or in default of payment thereof they have to further undergo 5.-I. For six months each. 2. The occurrence in the present case had taken place according to the prosecution at 8.00 A.M. Within the area of village Mehais Janoobi, six miles away from Police Station Saddar Sangla Hill District Sheikhupura and the statement (Exh.PK) of Mst. Parveen (P.W.9) wife of Arshad alias Achhu deceased, which was recorded by Muhammad Rashid Inspector/S.H.O. (P.W.11) near the place of occurrence on 20-7-2001 at 11.00 a.m. On the basis of which formal F.I.R. (Exh.PK/1) was recorded by Muhammad Ashraf A.S.-I. (P.W.7), the same day at 11.30 a.m. 3. The brief facts as narrated in the F.I.R. (Exh.PK/1) by Mst. Parveen Bibi widow of Muhammad Arshad deceased are that on 20-7-2001 at 8.00 a.m. Her husband asked her, his mother Mst.
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Hameedan Bibi and Muzaffar Hussain who was with them as their guest to reach at the Dera while he was coming there on Motorcycle. The complainant along with her mother-in-law Mst. Hameedan Bibi and Muzaffar Hussain proceeded from the village towards the Dera. After .a shortwhile, her husband Muhammad Arshad crossed them on Motorcycle. Her husband was driving the Motorcycle while Farzand and Muhammad Saleem were sitting on the Motorcycle behind him. There was a very short distance between them and her husband who was on Motorcycle. When her husband and his companions on Motorcycle reached in front of the Dera of Munir Jat, Akram appellant armed with .222 bore rifle, Sardar acquitted accused armed with .222 bore rifle, Ashraf acquitted accused armed with .12-bore double barrel gun, Aslam acquitted accused armed with rifle .7-MM, Afzal appellant armed with .244-bore, Khurshid armed with .30- bore pistol, Fayyaz appellant armed with Carbine and Akbar acquitted accused empty handed who were ambushed in the clyster of keekar trees emerged on seeing the Motorcycle. Akram appellant raised a Lalkara to kill Arshad and he (Akram) gave fire shot of rifle .222-bore which hit on the private part (genital) of her husband Muhammad Arshad. The remaining accused gave fire shots which landed on the different parts of the body of the deceased who fell down from the Motorcycle and died at the spot. Farzand Ali and Muhammad Saleem P.Ws. Were also injured by the firing. They concealed themselves. Due to the firing, one fire shot hit the oil tank of the Motorcycle which caught fire and due to the fire, clothes of her husband and some portions of his body were also burnt. The occurrence was seen by the complainant, her mother-in-law Mst. Hameedan Bibi and Muzaffar Hussain with their own eyes. 4. The motive behind the occurrence was that the deceased had purchased three acres of land from Zaheer Jat and possession of this land was with Akram etc. Appellant. The accused were not leaving the possession and due to this reason Akram etc./accused murdered Muhammad Arshad husband of the complainant with firing of fire-arms and also injured his companions. 5. Muhammad Rashid Inspector/S.H.O. (P.W.11) along with police officials went to the place of occurrence where the dead body of Muhammad Arshad was lying. He prepared the inquest report Exh.PO in respect of dead body of Arshad alias Achhu deceased. He also prepared the injury statement Exh.PD and drafted an application Exh.PP for postmortem examination and handed over the dead body of Arshad to Shaukat Ali, Muhammad Afzal Constables and Muhammad Yaqoob A.S.-I. For escorting the same to Civil Hospital Sangla Hill for post-mortem examination. He also drafted an application for getting the result of Muhammad Saleem injured Exh.PQ. Then he inspected the place of occurrence and during spot inspection, he took into possession bloodstained earth which was sealed into parcel and secured vide memo. Exh.PF, attested by the P.Ws. He also took into possession Motorcycle P.4 bearing Registration No,6842-FDO vide memo Exh.PB. He also took into possession ten empties of .12-bore, three empties of .222-bore and eleven empties of .244-bore which were sealed into two parcels. He also took into possession ,12 empties of .7-MM rifle which were also sealed into parcel and secured vide memo. Exh.PJ. He prepared site- plan Exh.PR and thereafter recorded the statements of the P.Ws. And carried out the search of the accused. On 20-7-2001 he handed over all the case property to the Moharrar. On 21-7-2001 Muhammad Afzal Constable produced the last-worn clothes of the deceased shirt P.1, bunian P.2, chadar P.3, all stained with blood, which were secured vide memo. Exh.PB, attested by the P.Ws. He also recorded the statements of the P.Ws. And carried out the search of the accused. On 17-8-2001 he moved an application Exh.PB before the Medical Officer Mayo Hospital, Lahore, for seeking the permission to record the statement of Muhammad Saleem injured who was admitted there. After seeking the permission, he recorded the statement of Muhammad Saleem injured. On 23-9-2001 he arrested Akram, Afzal, Ashraf, Sarwar, Khurshid Ahmad and Fayyaz Ahmad accused and got their physical remand. On 30-9-2001 Muhammad Akram appellant after making disclosure led the police party to his residential house situated in village Mehais South and got recovered rifle .222-
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bore P.9 which was unloaded and ten bullets P.10/4-10 were received which were lying in an iron- box. The accused also produced the licence P.11, rifle P.9, bullets P.10/1-10 and its licence P.11 which were taken into possession vide memo. Exh.PL attested by Muzaffar and Ghulam Hussain P.Ws. He also prepared the site-plan Exh.PL/1. On the same day, Fayyaz Ahmad appellant after making disclosure while in police custody led the police party to his residential house and got recovered gun. P.15, .12-bore doubl barrel along with four cartridges P.16/1-4 and licence P.17 which were taken into possession vide memo. Exh.PN attested by the P.Ws. He also prepared the site-plan Exh.PN/1. On the same day Muhammad Afzal appellant also while in police custody after making disclosure led to the police party to his residential house and got recovered rifle .44-bore P.12 along with 8 bullets P.13/1-8 and licence P.14 which were taken into possession vide memo. Exh.PH. He also prepared the site-plan Exh.PM/1. All the recovered fire-arms were sealed into parcels separately which were also handed over to the Moharrar for keeping the same in the Malkhana and onwards transmission to the office of Forensic Science Laboratory. 6. After the completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court. Then copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellants and their co-accused, the charge was framed which denied by them and they claimed to be tried. The prosecution in order to prove its case produced as many as 14 witnesses. The ocular account had been furnished through the statements of Farzand Ali (P.W.8), Mst. Parveen Bibi (P.W.9) and Muzaffar Hussain (P.W.10), while the medial evidence had been produced through the statement of Dr. Muhammad Naseer Ahmad (P.W.1), Dr. Muhammad Maqsood Sial (P.W.4) and Dr. Abbas Ali Zahid (P.W.13). The site-plan had been prepared by Ghulam Sarwar Patwari (P.W.5) while the investigation had been conducted by Muhammad Rashid Inspector/S.H.O. (P.W.11). The remaining witnesses are of formal nature and need not to discuss here. 7. After the close of the prosecution evidence the statements of the appellants along with their co- accused were recorded under section 342, Cr.P.C. In which they denied the allegations and professed their innocence. However, to a question that "why this case against you and why the P.Ws. Deposed against you" Muhammad Akram appellant made the following reply which is reproduced as under:-- "I have been falsely involved in this case. The P.Ws. Are interested and they have made false statements against me. In fact, the occurrence did not take place in the manner suggested by the prosecution. Muhammad Arshad deceased used to indulge in criminal activities. He has adopted criminal behaviour. Prior to the present occurrence, Muhammad Arshad deceased, his brother Imdad and others perpetrated a murderous assault on my brother Asghar who received serious injuries and his valuables also snatched. The matter was reported to the police by Muhammad Ashraf co-accused and a case vide F.I.R. No,100 of 2001 was registered at Police Station Sadar Sangla Hill against Muhammad Arshad deceased, his brother Imdad and others but they did not surrender before the police. Muhammad Arshad deceased used to roam about in the company of bad character criminals and was trying to target us in order to harass us and also to dissuade us from pursuing the criminal case against him. On the day of occurrence, I along with Fayyaz co- accused and Akhtar son of Rehmat Ali were returning from our Dera when the deceased Muhammad Arshad, his brother Imdad and companion Farzand Ali duly armed with fire-arms were in search of us and when we were passing on the bank of Samenulla, the deceased from the other side of Saimnulla started firing at us in order to murder me and my companions. We felt serious danger to our lives and in the exercise of right of self-defence, we were also constrained to fire. I raised the same plea before the police at the earliest. Arshad deceased and his companions were the aggressor. After the occurrence, the complainant who was not even present at the place of occurrence, fabricated a false story and implicated me and my co-accused in this case falsely
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and for the reasons best known to her. She left off Akhtar son of Rehmat Ali. I was a prosecution witness of Case No,1002/2001." ' Muhammad Afzal appellant had not admitted his participation in the incident while Fayyaz Ahmad appellant had adopted the statement of Muhammad Akram appellant. Neither any of the appellants appeared in their defence under section 340(2), Cr.P.C. Nor they produced any defence evidence. However, Muhammad Akram appellant had produced copies of the F.I.Rs, and closed his defence. The learned trial Court after hearing arguments of both the parties passed the impugned judgment of convictions and sentences against the instant appeal and revision. However, through the same judgment the learned trial Court had acquitted Muhammad Ashraf, Hussain Aslam, Muhammad Sarwar, Muhammad Akhtar alias Akbar Ali and Khurshid Ahmad accused of the present case. 8. Learned counsel for the appellants contends that the occurrence had taken place on 20-7-2001 at 8.00 a.m. While the post-mortem examination had been conducted on the next day at 10.00 a.m .And delay in the post-mortem examination shows that the case was not registered promptly as claimed by the prosecution that the occurrence had taken place at 8.00 a.m. While F.I.R. Had been recorded at 11.00 a.m. On the statement of Mst. Parveen Bibi at the place of incident and the Investigating Officer had failed to disclose the source of information received by him to come at the spot; that the F.I.R. Had not been registered at the Police Station and the story was concocted and fabricated in order to falsely implicate innocent persons; that on the basis of the same evidence Muhammad Ashraf, Muhammad Aslam, Muhammad Sarwar, Muhammad Akbar and Khurshid Ahmad accused have been acquitted and the case of the appellants is at par with the case of the acquitted accused and the same evidence cannot be relied upon for maintaining conviction of the appellants; that the , recoveries are inconsequential as the empties though were sent to the office of the Forensic Science Laboratory yet no report had been obtained whether it matched or not and the report of the FSL is only to the extent that the weapons were in working condition/position which does not mean that the said weapons were used in the commission of the offence; that the empties were recovered near the place of the deceased and the medical evidence was in contradiction with the ocular account as there is blackening on the injuries and the distance of the deceased with theappellants was more than three feet because there was a Nala and then there was a path in between when the deceased had received the injuries which means that the deceased was at a noteable distance from the appellants and the burning and blackening could not be found on the injuries; that the prosecution story is unplausible and the witnesses were not present at the spot, but had wrongly claimed themselves as eyewitnesses; that reason has not been advanced by them, who were only chance witnesses, related inter se and with the deceased and being inimical towards the appellants they were interested witnesses and their statements are not worthy of reliance; that the prosecution case is doubtful as during the investigation and at the trial it was found that the prosecution had not spoken the whole truth and that in such circumstances the appellants may be acquitted. 9. Learned counsel for the complainant on the other hand has opposed this appeal on the ground that Farzand Ali (P.W.8) had received fire-arm injuries during the incident, who was medically examined after the registration of the case and his presence at the spot was not doubtful and he had given a specific role to Muhammad Akram appellant that firstly he raised a Lalkara and then fired hitting on the private parts of Muhammad Arshad deceased, which injury proved fatal, hence case of Muhammad Akram appellant is distinguishable from the case of the accused who had been acquitted from the charges; that the medical evidence supported the prosecution case that fire-arm injuries had been received by the deceased and both the eye-witnesses Muhammad Saleem and Farzand Ali (P.W.8); that the recovery of weapons had been effected from the three appellants, who had admitted their presence at the spot and their statements also supported the
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prosecution story; that the appellants did not appear in their defence under section 340(2), Cr.P.C. And also did not produce any evidence to explain the circumstances under which they had exercised the right of self-defence as claimed by them; that Mst. Parveen Bibi (P.W.9) and Muzaffar Hussain also had fully explained their presence at the spot and Mst. Parveen Bibi wife of the deceased had been coming to the Dera in routine who was resident of the same vicinity while Muzaffar Hussain (P.W.10) had come to them as a guest and also accompanied them for going to the Dera; that the consistent statements have been made by the witnesses and the prosecution has succeeded in proving the case against the appellants beyond any shadow of doubt. 10. Learned counsel for the State has also adopted the arguments of the learned counsel for the complainant and prayed for the dismissal of the appeal of the convicts. 11. We have heard the arguments advanced by the learned counsel for the parties and also perused the record with due care and caution. 12. The occurrence in the present case allegedly had taken place on 20-7-2001 at 8.00 a.m. And the case had been registered on the statement (Exh.PK) of Mst. Parveen Bibi (P.W.9) wife of Muhammad Arshad deceased, which was recorded at the spot at 11.00 a.m. By Muhammad Rashid Inspector/S.H.O. (P.W.11). Mst. Parveen Bibi (P.W.9) had only stated that she was going to the Dera along with her mother-in-law Mst. Hameedan Bibi and Muzaffar Hussain (P.W.10) brother-in-law of the deceased on foot on the asking of her deceased husband when in the meanwhile the deceased along with Farzand Ali (P.W.8) and Muhammad Saleem injured P.W. (not produced) crossed them on a motorcycle. They came ahead of the P.Ws. At a some distance, when the instant occurrence took place. Mst. Parveen Bibi complainant had not explained the specific reason for going to the Dera and following the deceased who was going with his friends on the motorcycle. Mst. Parveen Bibi (P.W.9) and Mst. Hameedan Bibi in their statements before the police did not claim that they were going to the Dera as per routine. According to their version, they were present at the place of occurrence per chance. During the cross-examination Mst. Parveen Bibi though explained that she along with other witnesses was going to the Dera for plucking the Mongee crop ( of yet this fact admittedly was not stated by her before the Investigating Officer in her statement under section 154, A Cr.P.C. Or in the Court while making examination-in-chief. The said explanation seems be afterthought and cannot be accepted as a gospal truth. A chance witness is bound to reasonably explain his presence at the spot to the satisfaction of the Court. No reasonable explanation has been given by Mst. Parveen Bibi and we find that her presence at the spot was doubtful. She had not gone to the Police Station after the occurrence for recording her statement under section 154, Cr.P.C., but the Investigation Officer Muhammad Rashid claimed that on receipt of the information about the incident on Telephone he had proceeded towards the spot where he recorded the statement of Mst. Parveen Bibi on the basis of which the F.I.R. Was registered. It has been repeatedly held by this Court and the august Supreme Court of Pakistan that the F.I.R. Which is registered at a place other than the Police Station, there are always chances of concoction and fabrication of the story and there is no sufficient proof that the F.I.R. Was registered at the given time by the prosecution immediately after the incident. Even otherwise the occurrence had taken place on 20-7-2001 at 8.00 a.m. While the F.I.R. According to the prosecution was recorded at 11.00 a.m. And the injury statement and inquest report were prepared within one hour by the Investigating Officer but even then the prosecution had failed to explain that how the post-mortem examination of the deceased was not conducted till the next day at 10.00 a.m. The delay in conducting the post-mortem examination also leads to an inference that the F.I.R. Was not registered at the given time. 13. Muzaffar Hussain (P.W.10) the other eye-witness was resident of Kotla Kalan which according to him, was at distance of 6 kilo meter from the place of occurrence. During the cross-examination he admitted that he was brother-in-law of the deceased and an agriculturist, who used to cultivate
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his land at village Kotla Kalan. He had also failed to explain any specific reason for visiting the house of his brother-in-law or being present at the spot at the time of incident. We find that the claim of Mst. Parveen Bibi (P.W.9) and Muzaffar Hussain (P.W.10) to have witnessed the occurrence was doubtful and they cannot be relied upon as truthful witnesses. 14. Farzand Ali (P.W.8) was another eye-witness who was also injured during the occurrence. His statement under section 161, Cr.P.C. Was recorded by Muhammad Rashid Inspector/S.H.O. (P.W.11) at the spot after his arrival. He was found in an injured condition and also sent to the doctor for medical examination through a police official. Then he was medically examined on 20-7-2001 at 3.00 p.m. By Dr. Muhammad Naseer Ahmad (P.W.1) who observed fire-arm injury with blackening on the margin of wound as well as in the wound. He also observed that there was correspondingly blackening, tattoing burning and tear on the right leg of shalwar. The said injury according to the doctor was declared falling under section 337-F(iii) P.P.C. And was caused by firearm. The probable duration between the injury and the medical examination was given 6 to 12 hours. It is thus proved on the record that Farzand Ali (P.W.8) had received the injury within the period on which the alleged occurrence had taken place. So the presence of Farzand Ali (P.W.8) at the spot cannot be doubted, which is stamped by receiving of the fire-arm injury by him. Though Farzand Ali (P.W.8) was resident of village Kot Jangjeet Singh which according to him was about 36 Kilo meters away from the place of incident, yet he claimed him to be a friend of the deceased and at the time of occurrence he along with the deceased and Muhammad Saleem another injured eye-witness was going on motorcycle. According to him in the way the appellants and their acquitted accused were sitting ambush and on hearing the sound of motorcycle they became alert and when the motorcycle came near the place where the accused were sitting they started firing. Firstly the Lalkara was raised by Muhammad Akram appellant and then the shot fired by him hit the private parts of the deceased Muhammad Arshad. The other accused also made firing. Farzand Ali (P.W.8) and Muhammad Saleem also received fire-arm injuries during the incident. He admittedly was not related to the deceased and resident of other village. There is nothing on the record that P.W.8 was confederate in the crimes committed by the deceased, who according to the defence was criminal bent of mind being involved in so many cases. P.W.8 had no criminal history and he is also not a witness in any case got registered bythe deceased and the accused party against each other. Thus P.W.8 had no previous enmity or against the appellants, who can be termedas an independent witness having no motive to falsely implicate the appellants in the present case by letting off the real culprit. His presence at the spot has been established beyond any shadow of doubt. Learned counsel for the appellants has contended that P.W.8 had been medically examined with the delay. The said fact alone is not sufficient to discard E his evidence as it was never suggested to the doctor that the said injuries could be self-suffered and did not receive during the occurrence. The contention of the learned counsel that P.W.8 was a chance witness is irrelevant as this P.W. Had also received fire-arm injury during the incident, which has been established from the statement of the Medical Officer. The said statement of Farzand Ali (P.W.8) is supported by the medical evidence regarding the time of the-incident and the nature of the injuries received by the deceased, Muhammad Saleem P.W. And Farzand Ali (P.W.8). Even the seat of injury specifically attributed to the appellant Muhammad Akram on the private part of the deceased is also confirmed by the medical evidence. In such circumstances the presence of P.W.8 at the spot during the occurrence has been established beyond any shadow of doubt. No doubt he had no enmity with the appellants or the other accused, but this alone is not sufficient to hold that he has stated the whole truth. The prosecution had nominated eight accused to have participated in this occurrence out of which five have already been acquitted by the learned trial Court. The said five accused were only attributed the general role of firing without any specific injury to the deceased or any of the injured. The same role of general firing was attributed to the appellants, namely
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Muhammad Afzal and Fayyaz Ahmad and they were convicted and sentenced merely for the reason that the recovery of weapons was effected from them. It has been repeatedly held by the Hon'ble Supreme Court of Pakistan in the cases of Ghulam Sikandar and another v. Mamraz Khan and another (PLD 1985 SC 11), Sarfarz alias Sappi and 2 others v. The State (2000 SCM R 1758) and Iftikhar Hussain and another v. The State 2004 SCM R 1185 that eyewitnesses who are disbelieved against some accused persons attributed active and effective roles cannot be believed against the other accused persons unless they receive independent corroboration qua the other accused persons. We have noticed that no doubt certain empties were shown to have…
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