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Petitioner: MUHAMMAD RIZWAN VS Respondent: StateHonorable Justice SAEED-UR-REHMAN FARRUKHSyed Riaz-ul-Hassan Gilani,Muhammad Sharif Janjua
2006 P Cr
2006 P Cr. L J 1215
[Federal Shariat Court]
Before Ch. Ijaz Yousaf, C.J., Dr. Fida Muhammad Khan and Saeed-ur-Rehman Farrukh, JJ
MUHAMMAD RIZWAN and another----Appellants
Versus
THE STATE----Respondent
Criminal Appeal No.191-I of 2000, Criminal Revision No.37/I of ,2002 and Murder Reference No.9/I of 2001, decided on 29th March, 2006.
Penal Code (XLV of 1860)---
----Ss. 302, 379, 411 & 34---Appreciation of evidence---Sentence, reduction in---Confessional statement of accused which was recorded by Judicial Magistrate after completing requisite legal formalities, was proved to be made voluntarily and without any pressure/coercion/torture by police---Accused had retracted the confession by taking up the plea of torture at the stage of trial on realizing the grave consequences, likely to flow from confession---Sufficient evidence of unimpeachable character was available on record which provided corroboration of conviction of accused---Independent prosecution witness had no motive whatsoever to falsely depose against accused persons---Medical evidence showed that deceased was killed by fire-arm---Only one shot was fired which proved fatal---Deceased was killed by a bullet fired from a pistol/revolver in view of nature and extent of injuries on dead body---Prosecution, in circumstances had rightly relied upon medical evidence to connect accused with the murder as confessed by him---Recovery of car from prosecution witness from his workshop at the pointation of accused was yet another piece of strong corroborative evidence connecting accused with the crime---Recovery of revolver at the pointation of lady accused from her house, was worthless---No crime empty was recovered from the spot nor any lead piece was retrieved from the body of deceased so as to be connected with revolver---No reliance could be placed on the recovery of said revolver to hold that fatal shot was fired from it---Evidence on record had provided sufficient corroboration to the retracted judicial confession of accused---Male accused, in circumstances was rightly convicted by the Trial Court for Qatl-e-Amd of deceased within the purview of 5.302(b), P.P.C. and female accused was proved to be his accomplice in murder of deceased and was convicted under S.302(b) read with S.109, P.P.C.---Confessional statement was to be either accepted or rejected as a whole while deciding a case---Explanation given by male accused for murder of deceased, appeared to be plausible---Murder was neither pre-planned nor the outcome of some previous enmity---Parties were on friendly terms as per prosecution itself---Some indecent act of deceased with lady accused appeared to have provoked male accused to such an extent that he killed the deceased there and then--Sentence of death awarded to accused was reduced to life imprisonment as Tazir and his sentences under Ss.379 & 411, P.P,C. were set aside and he was acquitted of charges thereunder, however, instead he was convicted and sentenced under S.392, P.P.C.---Conviction and sentence of female accused under Ss.302, 34, 379 & 411, P.P.C. were set aside and she was also acquitted of charges thereunder and instead she was convicted under S.392, P.P.C. and sentenced accordingly.
Ch. Muhammad Yaqoob and others v. The State and others 1992 SCMR 1983; Haq Nawaz v. The State 2000 SCMR 785; Muhammad Gul v. The State 1991 SCMR 942; Muhammad Saleem's case PLD 2002 SC 558; Abdul Haque's case PLD 1996 SC 1; Muhammad Imran's case PLD 2001 SC 956 and Ijaz Hussain's case 2002 SCMR 1455 ref.
Syed Riaz-ul-Hassan Gilani for Appellants.
Saliheen Mughal for Petitioner.
Muhammad Sharif Janjua for the State.
Date of hearing: 29th March, 2006.
JUDGMENT
SAEED-UR-REHMAN FARRUKH, J.--- By this judgment we propose to decide the following three matters as these arise out of the common judgment, dated 13-9-2000 passed by learned Sessions Judge, Abbottabad: --
(1) Criminal Appeal No.191/I of 2000 (Muhammad Rizwan and another v. The State).
(2) Criminal Revision No.37/I of 2002 (Muhammad Rafiq v. Muhammad Rizwan and another).
(3) Criminal Murder Reference No.9/I of 2001.
Through the impugned judgment, the learned trial Judge convicted and sentenced the appellants as under:--
Muhammad Rizwan
(i) (ii) (iii)
Under section 302/34, P.P.C. Under section 379, P.P.C. Under section 411, P.P.C.
Death sentence and fine of Rs.one lac under section 544-A, Cr.P.C. or in default six months' R.I.
Three years' Rs.5,000 Three year's Rs.5,000
R.I. and
fine of fine of
R.I., with
Mst. Rukhsana Naz
(i)
Under section
Life imprisonment and fine of Rs.
302/34, P.P.C.
One lac under section 544-A,
Cr.P.C. or in default six months' R.I.
(ii)
Under section 379,
.Three years' R.I. and fine of
P.P.C.
Rs,5,000
(iii)
Under section 411,
Three years' R.I. and fine of
P.P.C.
Rs.5,000.
Both the convicts have challenged their convictions/sentences by filing a joint appeal while the complainant Mian Muhammad Rafiq has filed revision petition seeking enhancement of the sentences awarded to them.
2. The genesis of the case may be narrated. On 21-9-1996 Munsif Khan I.H.C. Police Station Doonga Gall (P.W.11), who was on patrol duty on hearing rumour about the presence of dead body lying near Chathri Walla Mohr rushed there. He found the dead body of a person aged 40/45 years lying there in a pool of blood with a wound on the left side of the chest out of which blood was oozing. He searched the body of the deceased and recovered a sum of Rs.5,229 besides some visiting cards. After preparing spot inspection, the injury sheet (Exh.P.W.11/1) and inquest report (Exh.P.W.11/2) he sent the dead body for post-mortem examination to the mortuary through Muhammad Ilyas constable. It was on the basis of his Murasila (Exh.P.A./1) and F.I.R. was registered at Police Station Doonga Gali on 21-9-1996.
3. Investigation was initiated and on completion thereof both the appellants Muhammad Rizwan and Mst. Rukhsana Naz were challaned to Court to face trial under sections 302/34, section 379 and section 411, P.P.C.
4. Both the appellants denied the correctness of the allegations levelled against them in the charge-sheet and claimed trial. In all, 20 witnesses were produced by the prosecution in support of its case besides tendering some documents in the evidence.
Mian Muhammad Rafiq P.W. 1 deposed that the deceased Mian Muhammad Riaz was his elder brother who was a contractor by profession. During the days of occurrence he was constructing District Headquarter Hospital of Haripur. He identified the dead body of the deceased before police and the doctor, who conducted the post-mortem examination.
He went on to depose that the deceased was the owner of Car bearing No.PRB-87 though it had not been transferred to his name officially. However, the said car was in his use. The witness was shown photographs of the car (seven in number as Exh.P.W.1/2 to Exh.P.W.1/8) and he identified the same. He deposed that both the accused were brother and sister inter se and they lived in Lahore.
During cross-examination, he conceded that he did not charge anyone for the murder of his brother at the time of identification of the dead body. However, in his statement before the police (recorded on 24-9-1996) he charged the appellants with the crime. He contended that at the time of identification of the deceased he inquired from the police about the car and was told that it had not been recovered so far. He delivered photo copy of registration book of the car. (to the police) - which was "probably" purchased by his brother at Haripur about two/three years before the occurrence. A receipt about purchase of the car from Chaudhry Irshad was produced by him before the police. He admitted that the car was, registered in the name of Gulistan Cinema, Lahore and he was not sure as to whether it was shown to be owned by one Muhammad Arif or not.
5. Mehmood Akbar Kiyani P.W.2 deposed that he knew deceased Muhammad Riaz. On 21-9-1996 he read the news about the murder of Mir Murtaza Bhutto. He immediately contacted Mian Muhammad Riaz at Islamabad to discuss about the murder. He stated that he was member of Central Executive of National Peoples Party, Rawalpindi while Mian Muhammad. Riaz was President of N.P.P. Islamabad. During the conversation the. deceased informed him that he had received some guests from Lahore and he would ring him up afterwards. It was at midnight that he received a call from Aurangzeb, uncle of Muhammad Riaz, while he was asleep, who informed him about his murder. Aforesaid Aurangzeb gave him the telephone number of Mian Muhammad Rafiq, younger brother of the deceased at Abbottabad who talked to him to confirm the news about the murder of Muhammad Riaz.
His assertion that it was Aurangzeb who informed him about the murder of the deceased was found missing in his statement before the police (Exh.P.W.2/D-1). Same was the position about his assertion that it was Aurangzeb who gave him telephone number of Muhammad Rafiq to talk about the murder at Abbottabad. The witness volunteered, at that stage, that his statement was not recorded by the police in his presence.
6. Aurangzeb P.W.3 deposed that the deceased was "connected with me in relation". They used to stroll together in the Park F-10 in the evening. A few days before the occurrence the deceased informed him that he had gone to Lahore to purchase furniture for the marriage of his daughter. He told him that he met there Muhammad Rizwan and Rukhsana Naz appellants who knew him earlier and they told him that they would be visiting Islamabad for getting visa for Muhammad Rizwan. The deceased informed him that he would "take them to Ayubia for visit". This portion of the statement of the witness regarding conversation between him and deceased was objected to by the learned defence counsel as being hearsay.
During cross-examination, he conceded that he did not state before the police that the deceased had told him about his visit to Lahore to purchase furniture for the marriage of his daughter. He also did not inform him about the day on which his guests Muhammad Rizwan and Rukhsana Naz i.e. appellants herein, were to visit him. The deceased had also not mentioned the name of the country for which Muhammad Rizwan wished to obtain visa. He conceded that the deceased was not operating any travelling agency.
7. Khalid Riaz P.W.4 deposed that he was working with Amjad Khan at Shadman Jail Road, Lahore, who was a car dealer. He and his friend Javed Iqbal went to Johar Town and met a Police Officer who requested them to witness the recovery of case property of this case. The police party entered the house along with him (the witness), Javed Iqbal and Mst. Rukhsana Naz appellant. She led them to a room in the upper storey of the house and, in their presence, she produced revolver Exh.P.1, four live rounds (Exh.P.2), and a licence (P.3) which were sealed into two parcels. The recovery memo. qua these items (Exh.P.W.4/1) bore his signature as a marginal witness. Javed Iqbal also signed it in his presence. The Police Officer also prepared site sketch of the house from where the pistol was recovered.
During cross-examination, he stated that no Councillor from Lahore was available at the spot "for pointing out the recovery". The witness gave the description of the location of the house. He, however, could not state as to whether the house was situated within the limits of Municipal Committee or Cantonment. He admitted that the place of recovery was at a distance of 8/9 kilometers from his house.
8. Malik Riasat Ali P.W.5 deposed that he was working as property dealer in Sector I-10, Islamabad. On 21-9-1996 he had gone to the place known as "17 Meal" in connection with purchase of some land. At 11-00 a.m., while he was waiting for his companion on the road side, motor Car No.PRB-87 owned by Muhammad Riaz deceased reached there. It was being driven by him. Muhammad Riaz on spotting him stopped the car for a minute or two. One person was sitting with Muhammad Riaz on the front seat while a lady was seated in the rear seat. On inquiry the deceased stated that he was on his way to Murree. The person who was accompanied the deceased was a tall man and clean shaved while the lady was aged about 40 to 45 years and was a fashionable one. On the next morning he heard about the murder of Muhammad Riaz. He conveyed information (about his meeting the deceased) to Mian Muhammad Rafiq, after the funeral ceremony was over.
During cross-examination, he admitted that he appeared before the police on the 3rd day of the occurrence. He denied the suggestion that his statement was ante-dated. He received the information about the occurrence on the "morning of next following day on which he met the deceased". He did not convey this information further to anybody. He met Mian Muhammad Rafiq and Miskeen P.Ws. on the afternoon of the day next following the day of occurrence. He did not know whether Miskeen P.W. was brother of the widow of the deceased. He conceded that the deceased was not his friend. He talked to the deceased only for one or two minutes at the place Call "17 Meal". He had not seen the companions of the deceased earlier. His assertion that the male companion of the deceased was tall statured was found missing in his statement before the police (Exh.D.A.). It was suggested to him that per prosecution version Mr. Wasti, Director C.D.A. saw the deceased along with a woman at 2-00 p.m. on the day of occurrence at Ayubia which was at a very short distance from the place of occurrence. The witness replied that he did not know Mr. Wasti and, therefore, he could not accept this suggestion.
9. Abdus Saeed Tehsildar P.W.6 deposed that during the days of occurrence he was posted as Tehsildar, District Abbottabad. On 16-10-1996, S.H.O. Police Station Doonga Gali brought an application Exh.P.W.6/1 which was duly marked to him by the Senior Civil Judge, Abbottabad on which he went to the District Jail Abbottabad. He arranged in the jail the identification parade of the accused. Mst. Rukhsana Naz appellant along with few other females was brought there and the witnesses were summoned to identify the accused, Muhammad Miskeen P.W. correctly identified Mst. Rukhsana Naz appellant. This process was repeated thrice by him. He prepared report Exh. P. W.6/2 (in this behalf), in his handwriting which bore his signature. On the same day Muhammad Rizwan appellant was produced before him for identification parade. He was correctly identified by Muhammad Miskeen and Riasat Ali P.Ws. vide report Exh.P.W.6/3.
This witness was cross-examined at some length by the defence in an attempt to show that he did not take proper precautions to ensure that correct and proper identification parade was held. However, nothing materially beneficial for the defence came out on record in this behalf. He denied the suggestion that the accused objected that the witnesses had seen them. He did not ask the S.H.O. the reason for the delay in applying for identification parade.
10. Abdur Rehman P.W.7, ex-counciller of Union Council Seer was a marginal witness to the pointation memo. (Exh.P.E.7/1) through which both the appellants, while in police custody, led the Investigating Officer to the place of occurrence known as Chattari Wala Mohr and also the place where Muhammad Riaz deceased was done to death. They also pointed out the place from where the police took into possession Car No.PRB-87. He signed the said memo. as marginal witness.
During cross-examination, he explained that he had gone to Police Post Changla Gali to peruse a report which was lodged by him and the Investigating Officer asked him to join the investigation of the present case.
11. Sultan F.C. P.W.8 was marginal witness to recovery memo. (Exh.P.W.8/1) regarding recovery of currency notes worth Rs.5,229 of different denominations (Exh.P.4), seven cards (Exh.P.5), and one Casio watch (Exh.P.6), during the search of the body of the deceased. He was also marginal witness of recovery memo. of few pieces of wood Exh.P.7 along with leaves and pebbles Exh.P.8 which were blood-stained (Exh.P.W.8/2). His assertion that wood pieces were recovered was found missing in his statement before the police.
Statement of Raj Muhammad, Head Constable P.W.9 is of formal nature and need not be dilated upon.
12. Statement of Babar Javed, resident of House No.155, Street No.22, Sector F-10/2, Islamabad (P.W.10) is to the effect that he was property dealer in F-10 Markaz Islamabad. Muhammad Riaz deceased was known to him for the last three/four years prior to the occurrence. On 21-9-1996 he along with his family had gone to Murree. At about 5-00/6-00 p.m. while he was standing near Committee Bagh he saw the car of Muhammad Riaz (PRB-87) coming from Murree. He signalled the car to stop but the driver did not oblige. He noticed that some unknown person was driving it. A lady was sitting beside him in the front seat. He rang up Muhammad Riaz and his daughter who informed him that he had not returned home till then. On the following day Mian Muhammad Rafiq complainant informed him about the murder of his brother Muhammad Riaz in Nathiagali area.
During cross-examination, he stated that he did not know as to whether the Car No.PRB-87 was owned by Muhammad Riaz or not. However, he had seen it being used by him while he was alive. He stated that the deceased was a political figure and well-known to him. He Met Mian Muhammad Rafiq P.W. on the day of funeral of the deceased. He insisted that he could recognize the car by its colour.
13. Munsif Khan P.W.11 posted as IHC Police Station Doonga Gall at the relevant time, deposed that on receipt of information about the presence of a dead body at Chatri Mohr he reached the spot and searched the body of the deceased and recovered a sum of Rs.5,229 and few cards of different names. He prepared. the Murasila, injury sheet and inquest report and sent the dead body to the mortuary, at Civil Hospital, Abbottabad.
14. Muhammad Ilyas constable P.W.12 escorted the dead body to the mortuary and after the postmortem handed it over to the relatives of the deceased.
15. Dr. Waqar Ahmad P.W.13 deposed that during the days of occurrence he was posted in District Headquarter Hospital, Abbottabad. On 22-9-1996, he conducted post-mortem examination on the dead body of Muhammad Riaz. According to his observations, rigors mortis had started developing in the body. He noticed the following injuries:--
Injuries
(1) An entry wound on the chest on left side in the fifth intercostals space 3 to 4 inches to the left of sternal border. It measured about 1/2" x 1/2" in diameter inverted and there are no signs tattooing or blackening.
(2) An exit wound on the back on left side below the tip of scapula, in the 8th intercostals space. The wound measures about 3" x 3" in diameter and edges are everted with large amount of blood found oozing from it.
Abdomen
Stomach: Particle food digested found in the stomach.
Thorax
(1) Ribs and cartilages below wound No.1 found fractured.
(2) Left both pleurae found ruptured and collapsed and left pleurae cavity was full of blood (about 500 ml) found inside it.
(3) Left lung found lacerated in the lower lobe due to wound No.1.
(4) Left ventricle of the heart found lacerated and penetrated through and through.
In the opinion of the doctor the death was due to fire-arm injury resulting in serious damage to the heart and left lung. The time between injury and death was within 15 minutes and between death and post-mortem was within 12 hours. He proved his post-mortem report Exh.P.W.13/1.
During cross-examination, he stated that it was not possible for him to say whether the injuries were caused by a shot fired from a .32 bore revolver or a .30 bore pistol or a rifle because he was not Fire-arm Expert. He also could not say with certainty that the injuries could be caused by a shot fire from a distance of 50 to 60 feet nor could he say that a stray bullet struck the deceased.
16. Ghulam Sarwar, A.S.-I. P.W.14 was a marginal witness of recovery memo. (Exh. P. W .14/ 1) regarding a photostat copy of duplicate bill of telephone in the name of Mst. Rukhsana Naz appellant. It was produced by Mian Muhammad Rafiq complainant.
17. Statement of Safdar son of Allah Ditta P. W.15 is stated to be quite significant for determination of the fate of this case. He deposed that he was working as a painter of motor cars on Link Temple Road, Lahore. On 22-9-1996 the two appellants met him in a motor car of maroon colour and they asked him to change its colour into golden in such a way it should be like original one. His labour charges were fixed as Rs.15,000 out of which they paid him Rs.5,000. They left the vehicle bearing No.PRH-182 with him and he started the paintwork. After one week Muhammad Rizwan again visited his shop and got one coating of paint done in his presence. The witness demanded from him the remaining money but he did not oblige. He however, gave his telephone number in writing to him. It was on 8-10-1996 that Muhammad Rizwan led the police party in handcuff to his workshop. He pointed out the car in question to the police which was taken into possession by it.
This witness was subjected to somewhat lengthy cross-examination and his assertion that the car was partly painted by him in the presence of Muhammad Rizwan appellant and he gave his telephone number in writing was found missing in his statement under section 161, Cr.P.C. He denied the suggestion that the police pressurized him to make statement before Magistrate in support of the prosecution case.
18. Mehmood Irshad P.W.16 deposed that the car in question which was Honda Accord, Model 1984-85 was purchased by him from Kayani Motor Rawalpindi but it had not yet been transferred in his name. He sold the same through Kayani Motor, Rawalpindi in 1991 to one Muhammad Riaz through a receipt. He produced photostat copy of the receipt (Exh.P.W.16/1)for a sum of Rs.3,42,000. He handed over open transfer letter along with three identity cards Exh.P.W.16/3-6 and other papers regarding registration of the car besides the original registration book to the buyer.
During cross-examination, it came out that the fact that he sold the car through Kayani Motors was not mentioned in his statement before the police under section 161, Cr.P.C. He denied the suggestion that the reason for not getting the car transferred in his name was to avoid the payment of tax.
19. Mr. Azhar Khan, Senior Civil Judge/judicial Magistrate, Peshawar entered the witness-box as P.W.17. He deposed that during the days of occurrence he was posted as Senior Civil Judge/Judicial Magistrate, Abbottabad. On 10-10-1996 Muhammad Rizwan appellant was produced before him for recording his confessional statement. After observing the requisite legal requirements in this behalf he proceeded to record his confessional statement (Exh.P.W.17/2). He dictated the same to his steno verbatim. On completion of the statement it was read out to Muhammad Rizwan appellant and he appended his certificate vide section 364, Cr.P.C. (Exh.P.W.17/3).
During cross-examination, he admitted that it was not mentioned anywhere in the proceedings that handcuffs of Muhammad Rizwan were got removed before recording his statement. The Application presented by the police for recording the confessional statement did not mention the date of arrest of Muhammad Rizwan. He went on to depose that after recording the confessional statement of Muhammad Rizwan was handed over to Karim Dad Head Constable for taking him to judicial lock-up. He stated that it was not in his knowledge that the S.H.O. obtained a jail warrant from the Assistant Commissioner, Abbottabad in connection with proceedings under sections 107/151, Cr.P.C. and that the counsel of the accused had filed a habeas corpus petition under section 491 on 3-10-1996. He, however, conceded that Muhammad Rizwan told him, on his query, that he was in police custody since 26-9-1996 and that he had been tortured "to some extent".
He went on to depose that he recorded the statements of Safdar and Taj-ud-Din P.Ws. under section 164, Cr.P.C. on 20-10-1996.
20. Zulfiqar constable attached to Police Station City Abbottabad, P.W.18 deposed that he took articles mentioned in the receipts to F.S.L. Peshawar.
21. Muhammad Rafique Khan S.H.O. P.W.19 deposed that during the days of occurrence he was posted as S.H.O. Police Station Doonga Gali. He carried .out the investigation of the case which, inter alia, included the recoveries of blood-stained pieces of wood along with pebbles and stones from the spot. Last-worn clothes of the deceased were produced before him by Muhammad Ilyas constable, after post-mortem examination.
He deposed that Mst. Rukhsana Naz was arrested on 4-10-1996 and she led the police party to her house situated in Johar Town, Lahore and from the…
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