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Petitioner: MUHAMMAD ASHRAF VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Abdul Jabbar Khan Title: MUHAMMAD ASHRAF vs THE STATE Case No.:Criminal Appeal No. 415 and Murder Reference No. 103 of 1973 r. A. No. 562
JUDGMENT
Reported As: 1975 P Cr. L J 787 Result: N/A Judgment JUDGMENT ABDUL JABBAR KHAN , J --Muhammad Ashraf son of Yaqub A.I aged 26 years was tried alongwith his father Yaqub All aged 50 years for the murder of Tariq Manzoor, under sections 302/109 P. P. C. Muhammad Ashraf has been condemned to death under section 302, P. P. C. While his father Yaqub A.I has been acquitted by the learned Sessions Judge, Lyallpur, vide his judgment dated 1st June 1973. Muhammad Ashraf has been also sentenced to a fine of Rs. 5,000, in default of payment of which to undergo further three years' R. I. It was directed that the fine if realised was to 'Se paid to the heirs of Tariq Manzoor deceased under section 544-A Cr. P. C. Muhammad Ashraf has filed an appeal against his conviction and sentences. The matter has also been referred to us under section 374, Cr. P. C., for the confirmation of death sentence awarded to him. We will dispose of the appeal as well as the Murder Reference and the revision (No 6 of 1974) filed by Manzoor Ahmad complainant against the acquittal of Yaqub A.I co-accused which is though not admitted to regular hearing but was ordered to be heard alongwith this appeal, by this single judgment. 2. The occurrence took place on the night between 31st July and 1 August 1970 in Chak No. 5-L/73- A, in the criminal jurisdiction of Police Station Burjwala, District Sahiwal. The time of the occurrence was stated to be at about mid-night and the matter was reported to the police at 2-30 a.m. The same night. Lal Khan M. H. C. (P. W. 10) recorded the statement Exh. P L of Manzoor Ahmad P. W. 22, of which Exh. P L/1 is a fair copy. The distance between the place of occurrence and the Police Station was three miles.st
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3. The prosecution case as disclosed by the statement of Manzoor Ahmad P. W. 22, the father of the deceased, is as follows:--- Manzoor Ahmad P. W. Stated that on the night between 31st July and 1st August 1970 he was sleeping alongwith his son Tariq Manzoor aged 21 years on two separate cots on the thara outside their baithak. The cot of the deceased was placed towards north. At about 1-00 a.m. In the night he woke up on the report of a gun shot as well as on the shrieks of his son. He found a young man of medium size who was just wearing a loin--cloth and was holding a pistol in his hand, running towards the east. He discovered that his son Tariq Manzoor had received a gun shot and he died within a period of 5/7 minutes. He raised an alarm which attracted his neighbours Afzal, Irshad Ahmad sons of Farzand A.I, Bashir and Muhammad Shafi. He also found foot-prints of the culprits at the place of occurrence which he covered. An empty cartridge P. 2 also came to his notice which was lying at the spot. He further found some retreating foot-prints of the culprit which he also preserved. All the persons who had collected, immediately proceeded towards the east to find the culprit and in this process they came across a jeep at a distance of 1-- killas from the village and its occupants Sher Muhammad P. W. 16 and Adil P. W. 17 told them that they had seen a person of the description as suggested by the complainant in the light of the jeep at a distance of about four squares from the village. These two P. Ws. Were returning to Sahiwal from Chak No. 45/5-L after canvassing for votes for Pir Ashiq Hussain, a candidate for election to National Assembly. These witnesses informed Manzoor Ahmad complai--nant and his party men that they had made an inquiry from the unidentified person but he did not reply and slipped away. They claimed that they would be able to identify him if he was brought before them. The com--plainant led suspicion on Yaqub A.I co-accused and one Sadiq as the pro--bable culprits who had either murdered his son Tariq Manzoor or had got him murdered. 4. The motive set up by the prosecution was that in year 1963 Yaqub All (acquitted-accused) lost his son Zulfiqar A.I who was murdered by Ghulam A.I son of Hussain Gul case Awan. This Ghulam A.I was con--victed and sentenced to four years' R.I. Manzoor Ahmad P. W. 22, the father of the deceased figured as P. W. In that case but Yaqub A.I co-accused considered his statement given in the case as the cause for the lesser penalty awarded to the murderer of his son Zulfiqar A.I. It has been asserted that Yaqub A.I (acquitted-accused) used to say to Manzoor Ahmad P. W. That if his own son was murdered then he would realise severity of his pain. The suspicion by the complainant against Sadiq was based on the fact that he was a friend of Yaqub A.I co-accused and was challaned for setting on fire the Khalwara of the complainant Manzoor Ahmad on whose instance Sadiq was challaned and after his release on bail he (i.e. Sadiq) openly used to declare that he would take the revenge. On the same night, the complainant Manzoor Ahmad P. W. 22 made available Nawab tracker P. W. 12 who reached at the spot and picked up the tracks of the murderer which led up to the dhari of Haitam P. W. 14. Lal Khan M. H. C. After reducing the statement of the complainant into writing and marking it as Exh. P. L. Sent a copy of the F. I. R. To Muhammad Yaqoob Khan Niazi, S. I. (P. W. 23), through Muhammad Akbar F. C. The S. H. O. Received the copy of the F. I. R. At 3-30 a.m. On that night in Chak No. 63/5-L. He immediately left for the place of occurrence and reached there at 5- 30 a.m. After covering a distance of six miles. On reaching the place of crime, he found the dead body of Tariq Manzoor on a cot. He prepared inquest report Exh, P. Y. And injury statement Exh. P. Z. Of the deceased and sent the dead body to the mortuary for post-mortem examination under the escort of Ghulam Yasin F. C. P. W. 8. He also picked up blood-stained turban P. I and blood-stained chaddar P. 3 from the cot of the deceased and took them into possession vide memos. Exh. P. A. And P. C. Respectively. The S. H. O. Made spot inspection and picked up a 12 bore empty cartridge P. 2 from the place towards the north of cot of the deceased at a distance of about one karam which was taken into posses--sion vide memo Exh. P. B. He took notice of foot-prints which were covered
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near the place of murder and showed them to Dara P. W. 13 and Adil P. W. 17 truckers who took their measurements. Moulds P. 6. And P. 7. Of these foot-prints were taken by the S. I. Vide memo. Exh. P. D. The S. I. Followed the tracks of the culprit with the assistance of the trackers which led to the dhari of Haitam P. W. Where he recorded the statement of Haitam P. W. The Investigating Officer has shown the dead body of Tariq Manzoor deceased lying on a cot at point No. 1 and 12 bore empty cartridge found at point No. 4 in the site-plan Exhs. P. H. And P. H./1. The site-plan was prepared on the direction of S L, by Ishfaq P. W. 7, the draftsman, which he made over to the S. I. On 6th August 1970 for incorporation of his notes. We find that on 3-8-1970 one Sarfraz (given up P. W. As unnecessary) brought two soldiers with a track dog. The dog was brought to the place of occurrence where on the strength of covered foot-prints, the dog led the foot-prints to the dhari of Haitam P. W. The appellant is said to have approached Dholar Khan P. W. 19 and Haji Jagdev P. W. 20 at the dera of Dholar Khan P. W, in Chak No. 111/9-L on 18-8-1970. He made clean breast of the entire affair and made a detailed confession of his crime, motive and the manner in which he had committed the offence. He requested them to produce him before the police and thus on his request the said P- Ws. Reached Qadirabad Bus Stand and found Muhammad Yaqoob Khan Niazi S. I. Present at that place to whom the appellant was handed over. The S.I, arrested the accused and sent him In the judicial lock-up Sahiwal and asked him to cover his face so as to avoid being located by the witnesses who were to identify him ultimately in the jail. S.I. Requested the authorities to hold an identification parade vide his application Exh. I. M. Ch. Amanat--ullah M. I. C. (P. W. 3) held the identification parade of Muhammad Ashraf appellant in Sahiwal jail in which Sher Muhammad P. W. 16 and Adil P. W. 17 correctly identified him as the person whom they had seen passing in front of their jeep on the night of the occurrence. Exh. PN/2 and Exh. PN/3 were recorded as statements of Adil and Sher Muhammad P. Ws. Respectively and the record of identification proceedings was made vide Exh. PN with a certificate of the Magistrate Exh. PN/1 on it. The same Magistrate after completing the first identification parade held another one in which Adil son of Ahmad (not produced) and Nawab P. W. 12 and Dara P. W. 13 picked up the tracks of the appellant as that of a person whose foot-prints they had found at the place of murder. The Magistrate prepared record of the proceedings of track parade Exh. PO and gave his certificate Exh. PO/1. Similarly, he recorded statement Exh. PO/2 of Dara and Exh. PO/4 of Nawab P. Ws. Besides Exh. PO/3 of Adil (not produced). On 13-8-1970 the appellant was remanded to the police custody after the identification parades were completed. On 14-8-1970 Muhammad Ashraf appellant led the S. I. To the recovery of pistol P. 4 from under the toori in his kotha wrapped in bunyan P. 5, having a live cartridge in its chamber. The S. I. Sealed the pistol P. 4 in a parcel and took it into pos--session vide memo. Exh. PE. He also prepared a plan Exh. PE/I. On 17-8-1970 the S. I. Received a letter Exh. PJ in an envelope Exh. PJ/I purported to be on behalf of Muhammad Yaqub A.I accused which was shown to Abad and Manzoor Ahmad P. W. 22. On 3-9- 1970 Abad pro--duced letter Exh. PF/I before the S. I. Which was earlier received from Yaqub A.I co- accused and the same was taken into possession vide memo Exh. PF for the comparison of handwriting Exh. PJ. On 26th September 1970 when Yaqub A.I co-accused appeared before the S. I. After being released on bail by the High Court he addressed an application Exh. PX to the Magis-- trate for recording the statement of Yaqub A.I co-accused about letter Exh. PJ. Ch. Amanatullah M. I. C. (P. W. 3) recorded statement Exh. PX/1 of Yaqub A.I co-accused and obtained his signature Exh. PJ/2 on Exh. PJ and he himself gave his notes Exh. PX/2 and appended notes Exh. PX/3 on the statement Exh. PX/1. The pistol P. 4 recovered from the appellant and empty cartridge P. 2 were sent to the Fire-arms Expert. Syed Qurban Raza P. W. 2, the Fire--arms Expert, who opined that the empty cartridge P. 2 had been fired from pistol P. 4.
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5. Dr. M. A. Saleemi P. W. 1, M. O., D. H. Q. Hospital, Sahiwal, made a statement before the committing Magistrate on 6-6-1972 and the same was transferred to Sessions file under section 509 Cr. P. C. The post---mortem examination performed by this doctor on the dead body of Tariq Manzoor deceased exhibited the following injuries on his person :- (1) Gun-shot wound (entrance) 2' x 2' on the left side of abdomen which is 3' from umbilicus on above and 2--' from the mid line of abdomen. There was no wound of exit. 6 small chord areas were present around this wound in space of 3' x 2--'. The piece of omentum and small intestine came out from the wound of entrance. The cause of death in his opinion, was haemorrhage and shock due to the injury mentioned above which was ante-mortem and was sufficient to cause death in the ordinary course of nature. The distance of fire-arm from the injuries was between 1-3 feet. The probable time that elapsad between injury and death was within 5 to 10 minutes or instantaneous. The time between death and post-mortem was about 14 hours. 6. The prosecution case has been supported by 23 witnesses and is mainly based on the circumstantial evidence. It consists of the following categories:- (i) the evidence of motive, (ii) evidence of wajtakkar witnesses namely, Sher Muhammad P. W. 16 and Adil P.W. 17, (iii) the evidence of foot trackers, (iv) the evidence of Naseer P. W. 11 who is said to have been approa--ched to act as hired assassin for the killing of the deceased or his father, (v) the evidence of recovery of crime empty P. 2 and that of pistol p. 4 supported by the opinion of Syed Qurban Raza P. W. 2, the Fire Arms Expert, (vi) the medical evidence, and (vii) evidence of extra-judicial confession before Dholar and Jagdev P. Ws. 7. The case of the defence is that of bare denial. The appellant has however, denied the recovery of pistol P. 4 at his instance and stated that before the identification parades were held. He was shown to the wajtakkar witnesses as well as his foot-prints were made available to the trackers. He further stated that he has been involved on account of suspicion and the witnesses had deposed against him because they were friends of Manzoor Ahmad P. W. 22. 8. We have hoard the learned counsel for the defence as well as the learned counsel for the State and have perused the record very carefully with their assistance. On the very outset it may be pointed out that the learned trial Court has disbelieved the evidence of extra judicial confession provided by Dholar Khan P. W. 19 and Haji Jagdev P. W. 20 and has, similarly, discarded the evidence of wajtakkar witnesses namely, Sher Muhammad P. W. 16 and Adil P. W. 17. It has also refused to believe the story of Naseer P.W. 11 who stated that the appellant as well as his co-accused approached him to hire his services for killing some body. The learned trial Court has based the conviction of the appellant on the basis of motive as proved against him, re-- covery of crime empty P. 2 from the spot which ultimately matched with pistol P. 4 recovered at the instance of the appellant. It has also believed the evidence of the trackers who correctly identified foot-prints of the appellant which he had left near the place where the deceased was murdered. The learned counsel for the defence has forcefully contended that the evidence of motive hardly stands proved against the appellant that the track evi--dence was of very weak and flimsy nature and it was highly improbable that the tracks would be covered alongwith the crime empty at the spot as stated in the case of the prosecution. He further challenged the veracity of recovery of pistol P. 4 said to have been recovered at the instance of the appellant and contended that all this evidence has been fabricated in order to involve the appellant against whom father of the complainant harboured, mere suspicion.
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9. The learned counsel for the complainant has also been beard although his revision petition against the acquittal of Yaqub A.I co-accused was not admitted to regular hearing. The order of the Court was that it should be heard alongwith the appeal. We have allowed him to address us so as to learn his point of view and to judge the force of arguments with regard to the finding of the learned trial Court by which it has held Yaqub A.I co-accused not guilty and has also disbelieved quite a substantive part of evidence visa-via the appellant. It has been contended that Yaqub A.I (acquitted-accused) was equally guilty as he had instigated his son (the present appellant) to commit the murder of Manzoor although by mistake instead of shooting Manzoor Ahmad he had shot his son Tariq Manzoor deceased. According to the learned counsel this contention of his stood proved by the extra-judicial confession of the appellant himself who impli--cated his father as a collaborator in the crime. It was submitted that the learn--ed trial Court was not justified in rejecting the evidence of Dholar Khan P. W. 19 and Haji Jagdev P. W. 20 who were independent witnesses and were also distantly related to the appellant's family. It has been further urged that the evidence of wajtakkar witnesses Sher Muhammad P. W. 16 and Adil P. W. 17 and Haitam P. W. 14 was a truthful and natural account and there was no sound reason given by the learned trial Court to discard it. Similarly, he has argued that the evidence of Naseer P. W. 11 was an important link which showed the animus of the appellant and his father against Manzoor Ahmad and it should have been given due im--portance. We have scrutinised the evidence of all these witnesses with great care and have also perused the reasoning by which the learned trial Court had arrived at the conclusion that all this evidence was unworthy of reliance. After going through this exercise, we have no hesitation to conclude that the learned trial Court was fully justified in placing no reliance on these pieces of evidence which the prosecution had tried to exhibit as links in the chain, to prove the motive as well as the commission of actual crime by the appellant at the instigation of his father Yaqub A.I co-accused. The story of Haitam P. W. That the appellant after committing the murder went to the Dhari of Haitam to disclose his identity, by itself neither seems natural nor probable. Why should a murderer after committing the crime make himself available to persons who knew him well, without any rhyme or reason. The conduct of Haitam P. W. 14 is still more unnatural as there is no explanation by the prosecution as to why he did not tell the track party about the identity of the culprit when they had reached him. The natural reaction of the culprit on the barking of the dogs would be to move away and not to stand still so as to be questioned and identified. Besides our own reasoning, we are in full agreement with the various reasons given by the learned trial Court in paragraph No. 29 of its judgment at page 136 of the Paper Book, by which it has disbelieved Haitam P. W. 14. The story of Sher Muhammad P. W. 16 and Adil P. W. 17 who claimed to have seen the appellant in the lights of their jeep is equally without substance. The thing which a culprit was expected to do was to keep away from the head lights as well as from the road to avoid being noticed by the passers-by, particularly, at that odd hour of the night, while he was conscious of the chase behind him. He would easily see the lights from distance and thus would manage to be away to some farther place in the field which would be so easily available in those environments. The statement of Naseer P. W. 11 who, it was said, came forward to tell the Court that the appellant and his father Yaqub A.I (acquitted-accused) approached him for his ser--vices to destroy an enemy-is another very poor attempt on the part of the prosecution to show venom of the appellant against Manzoor Ahmad P. W. 22. In fact it strengthened the case of the defence, as it proves once for all that the appellant and his father were cowardly sort of people who considered themselves incapable of settling their accounts and were looking to others to come forward and satiate their thirst of vengeance. We are hardly impressed by this sort of evidence and feel satisfied that all these four witnesses discussed above, have been rightly disbelieved by the learned trial Court. In the light of
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the above discussion, we find neither any force nor any substance in the contentions of the learned counsel for the complainant and thus these stand repelled. 10. The case of the prosecution now mainly rests on the evidence of motive, recovery of pistol P. 4 and its matching with crime empty P. 2 and that of track evidence. In the face of the fact that the extra-judicial con--fession has been excluded from evidence, the prosecution is only left with solitary statement of Manzoor Ahmad P. W. 22 to prove its case regarding the motive of the appellant and his father to kill him. To lend support to this statement of Manzoor Ahmad P. W. Reliance has been placed on a letter Exh. PJ which Yaqub A.I co-accused had admitted to have written to S. I, after the incident. This admission was made by him in a statement recorded under section 342 Cr. P. C. Before the learned trial Court. We find in the statement of Manzoor Ahmad P.W. 22, that he appeared as a prosecution witness in a case relating to the murder of Zulfiqar A.I, the brother of the appellant, which ended in conviction although the punishment awarded by the Court was only four years' R. I. Later on, in an appeal before the High Court the same was enhanced to 10 years' R. I. Accord--ing to Manzoor Ahmad P. W., the appellant's father nourished grudge against him and held him responsible for the light punishment. Thus many a time he told the P. W. That if his son was murdered then only he would know the pangs of this pain. The story, as narrated by this P. W. In no way gives impression that he had played foul with the appellant's family and thus initial punishment awarded by the trial Court, was the result of his like-warm attitude or open hostility. If it was considered that the statement of this P.W. Was a very crucial statement then in all probability the High Court would not have enhanced the punishment of the culprit. This view of ours is further supported by the fact that no evidence has been brought on the record to show that either Manzoor Ahmad P. W. Was declared hostile or had given the account of the case in a manner which could be considered detrimental to the case of the prosecution. In view of the matter it was highly essential that the controversial statement of Manzoor Ahmad P. W. Should have been brought on the file in order to enable the Court to judge for itself the intrinsic value of that statement and to find whether it could give any cause of grievance to the appellant's father to an extent so as to drive him to desperation in planning the murder of his own witness, The prosecution has produced no other witness to corroborate this assertion of Manzoor Ahmad complainant that appellant's father had told him that he was responsible for spoiling the above- men--tioned case. In face of the letter produced by the prosecution to substantiate the allegation of Manzoor Ahmad P. W. Regarding motive of the crime, a study of the same will disclose that the appellant's father had appealed to the sense of justice of the Investigating Officer and was under the impression that his son Muhammad Ashraf appellant had been killed. It is highly incoherent letter which only states the state of mind of a father who had learnt that he had lost his second son also and feels helpless while sitting at a distance of 1000 miles or so, lamenting his loss. It has been urged by the learned counsel for the complainant that in fact this letter was a ruse to deflect the course of investigation and it was written with purpose by the appellant's father Yaqub A.I co- accused in order to put the investi--gating agency on a wrong track. The suggestion of this kind does not appeal to our minds, as we do not consider Yaqub A.I co-accused, the father of the appellant, as a .Man of an extraordinary intelligence, who was acting like shrewd criminal, as depicted in the detective novels of legendary Sherlock Holmes. On the other hand the facts as given to us by the pro--secution regarding this motive, in no way show that the appellant or his father could have any grudge against Manzoor Ahmad P. W. Who had once helped them in life and had come forward as a witness for the pro--secution to support a case in which the appellant's brother was murdered. Moreover it is also in the evidence that the brother of the appellant was murdered in 1963 and although Ghulam A.I who was charged with that murder was undergoing the sentence yet his family lived next door to the house of the appellant. We do not find anything on the record to show that the appellant or his father ever made any attempt to take revenge from
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the family of actual culprit or had in any way showed their malice against the complainant in this case. On the other hand we find that Yaqub A.I, the father of the appellant had migrated to Sanghar in the province of Sind and had left his son alone to earn his living by himself. If we attach credence to the story of the complainant that the appellant and his father were revengeful persons and were set on to wreak vengeance for the murder of Zulfiqar A.I, then we would have found Yaqub Ad well settled in the village, either waiting for the return of Ghulam A.I or doing one thing or the other to come to grips with other members of Ghulam A.I's family. In view of the above analysis made by us of the prosecution evidence, on the point of motive, we are of the considered opinion that there was nothing to motivate Yaqub A.I, the father of the appellant, to plan the murder of Manzoor Ahmad P.W. Through his son Muhammad Ashraf appellant, which resulted in the death of Tariq Manzoor deceased. 11. The prosecution has tried to show that the appellant committed the murder while he was bare- footed and thus left his…
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