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Petitioner: WASIM MUNIR VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Saeed Akhtar, Muhammad Nawaz Abbasi Title: WASIM MUNIR vs THE STATE Case No.:Criminal Appeals Nos.441/T, 439, 476 and Criminal Miscellaneous No,83-Q
JUDGMENT
Reported As: 2002 YLR 789 Result: Order accordingly Judgment JUDGMENT ' MUHAMMAD NAWAZ ABBASI, J.---The appellants namely Wasim Munir and Hafiz Muhammad Nawaz alongwith their co-accused were tried for the charge under sections 302, 109, 34, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 by the Special Court established under Anti-Terrorism Act, 1997 for Rawalpindi Division and Islamabad Capital Territory for the charge of committing murder of Aon Muhammad Rizvi deceased. The learned trial Judge having found the appellant guilty of the charge convicted and sentenced them vide judgment dated 14-10-2000 as under:-- Under section 302(b), P.P.C. 1. Hafiz Muhammad Nawaz, Appellant (l) Sentence to death with payment of an amount of Rs,3,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of Aon Muhammad Rizvi deceased and in default of the payment of compensation to undergo Si. For six months (b) Under section 449, P.P.C. ' Rigorous imprisonment for a term of 10 years with a fine of Rs,50,000 and in default of the payment of fine to undergo S.I. For six months. (c) Under section 7-A of Anti-Terrorism Act, 1997 ' Sentenced to death. (2) Wasim Munir appellant in Criminal Appeal No,441-T of 2000 ' Sentenced to seven years' R.I. With a fine of Rs,10,000 and in default of the payment of fine to undergo S.I. For six months under section 201, P.P.C. The co-accused of the appellants namely Abdul Waheed, Muhammad Mateen, Tanvir-ulIslam, Irfan Ahmad Siddiqui and Muhammad Nauman
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Fawad were acquitted whereas Amir Nisar was declared absconder and the trial against him was separated under section 512, Cr.P.C. 2. The acquittal of the abovenamed accused has been challenged by the complainant namely Qasim Rizvi as well as by the State through Criminal Revision No,83-Q of 2000 and Criminal Appeal No,476-T of 2000 respectively. The appellants have challenged their convictions and sentences through separate Criminal Appeals bearing No,441-T of 2000 and No,439-T of 2000 respectively. These appeals and criminal revision are proposed to be disposed of through this single judgment. 3. The brief facts in the background as contained in the complaint Exh.P.N made by Syed Muhammad Qasim before Raja Muhammad Akram, Station House Officer of Police Station New Town, Rawalpindi, in hospital on the basis of which the case was registered against unknown culprit vide F.I.R EXP.N/2 are as under:-- ' That on 7-1-1999 at 7.45 a.m. Syed Qasim Rizvi while strolling was reciting Tasbih in the courtyard of his house when suddenly two unknown culprits armed with ,Klashnikov and Pistol attacked on the deceased. The as ailant with Klashnikov was of the normal physique with small and thick moustaches and stylish hair and was wearing Shalwar and Kamiz whereas the assailant who was armed with pistol being of the age of 22/23 years was of light blackish colour of the height of 5 feet 7/8 inches with slim body and dark hair. He was wearing a blue colour shirt and light sky blue pent. The assailants simultaneously opened firing at the deceased who having sustained injuries fell on the ground and the assailants quickly escaped from the place of occurrence, on a motorcycle bearing No,SGH-9400 which was readily available outside the house under the control of their third companion. Ali Hussain Rizvi, the elder brother of the complainant while reaching at the spot also seen the occurrence. The deceased was taken to the Holy Family Hospital by his sons with the help of mohalladars in an injured condition for medical aid but he could not survive. The unknown assailants were identified by the complainant and his elder brother at the spot. The deceased was examined by Dr.Haroon-urRashid PW8 in the Holy Family Hospital in injured condition. The medico- legal report (EXH.PF) of the deceased was made' part of record. On death of Aon Muhammad Rizvi in hospital the S.H.O. Prepared the inquest report Exh.P.P and dispatched the dead body to the mortuary through Nasir Mehmood Constable P.W.4 for post-mortem, examination = which was carried out by Dr. Muhammad Ashraf PW9. The post-mortem report ExP.4 was prepared by the Doctor. The Investigating Officer while reaching at the place of occurrence prepared the rough site plan Exh.P.Q and collected blood with cotton from the spot. He also collected 14 crime empties of .30 bore Pistol and one missed bullet of Klashnikov from the place of occurrence which were taken into possession in a sealed parcel through a memo. Prepared at the spot. The Investigating Officer took into possession the last worn blood-stained clothes of the deceased, which were produced before him by Nasir Mehmood, Constable on receipt of same from Doctor at the time of post- mortem examination of the deceased. These parcels were handed over by the Investigating Officer to Moharrrar of the police station to keep the same in Malkhana. Qamar-ud-Din P.W.7 under the direction of Investigating Officer prepared site plan Exh.PE and PE/1 on the pointation of eye- witnesses. The accused namely Tanvir-ul-Islam, Mateen, Irfan Ahmad Siddiqui and Abdul Waheed in their extra-judicial confession made by them before Nisar Ahmad son of Shams Din PW11 disclosed that they with a view to watch the movements of deceased kept him under surveillance and also provided a motorcycle to Hafiz Muhammad Nawaz and his two companions who operated at the spot. Amir Nisar accused while making confessional statement before Syed Shahid Akhtar Zaidi P IV .12 has admitted his participation in the occurrence. Hafiz Muhammad Nawaz was arrested on 13-1-2000 from Shamsabad and on the same day was sent to judicial lock-up and later his identification parade was arranged under supervision of Muhammad Shahid, Magistrate 1st Class, Rawalpindi on 14-1-2000 in jail. The eye-witnesses namely7 Syed Qasim Rizvi P.W.15 and Ali Hussain P.W.16 identified Hafiz Muhammad Nawaz appellant who being armed with Klashnikov fired
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at Aon Muhammad Rizvi. Hafiz Muhammad Nawaz during the investigation led to the recovery of a brief rase from the residential house of Noman Fawad which was containing Klashnikov with a magazine, pistol .30-bore with a magazine and two passports of Asif Zaheer with his Identity Card. The Investigating Officer having recovered these items from brief case took the same into possession through a single memo. Hafiz Muhammad Nawaz also led to the recovery of motorcyle bearing No,SGH.9400 .From the house of Wasim Munir which was taken into possession through a separate memo. The Investigating Officer on completion of the formal. Investigation submitted the challan before the Special Court established under Anti Terrorism-Act. 1997. 4. The charge against the appellant namely Hafiz Muhammad Nawaz and Wasim Munir alongwith the acquitted accused -namely Abdul Waheed, Muhammad Mateen, Tanvir-ul-Islam, Irfan Ahmad Siddiqui, Muhammad Noman Fawad, Amir Nisar was framed on 12-7-2000 under section 302/34, P.P.C. Read with section 109 P.P.C. And section 7-A of Anti-Terrorism Act, 1997 for the allegation of committing the murder of Aon Muhammad Rizvi through terrorism. The appellants and Asif Zaheer the absconding accused were also charged under section 449, P.P.C. 5. The prosecution in order to prove its case in addition to the ocular account placed reliance on the medical evidence, extra-judicial confession of the accused and the recoveries effected by Investigating Officer during the investigation. Syed Muhammad Qasim Rizvi, PW15 and Ali Hussain Rizvi P.W.16, real sons of Aon Muhammad Rizvi and the inmates of the house in the courtyard of which the fateful occurrence took place have furnished the ocular account. Muhammad Shahid, Magistrate, P.W.10 has supervised the identification parade of the appellants in Central Jail, Adiala, Rawalpindi. Amnir Nisar and Asif Zaheer confessed their guilt before Syed Shahid Akhtar Zaidi, P.W.12 whereas Ibne Muhammad Rizvi, P.W.13 and Naseer Ahmad P. W.11 are the witness of extra- judicial confession of Tanvir-ulIslam, Mateen, Irfan Siddiqui and Qari Abdul Waheed. Syed Najam Abbas Naqvi P.W.14 and Syed Muhammad Qasim the first informant have witnessed the recovery of motorcycle SGH-9400 which war used in he occurrence, at the instance of Hafiz Muhammad Nawaz. Rab Nawaz Constable P.W.1 was deputed to deliver the sealed parcels containing blood- stained earth and crime empties to the Moharrar of the police station to keep the same in Malkhana. Mukhtar Ahmad, Constable P.W.2 was given two sealed parcels to be delivered in the office of Chemical Examiner and Forsenic Science Laboratory, Lahore. Shah Nawaz, P.W.3 identified, the dead body of Aon Muhammad Rizvi whereas Nasir Mehmood Constable P.W.4 escorted the dead body of the deceased to mortuary for post-mortem examination. This witness also produced blood-stained clothes of the deceased i.e Chaddar P.1 and Shirt P.2 before the Investigating Officer. Muhammad Arif, Head Constable P.W.5 witnessed the recovery of blood which was taken into possession from the courtyard of the house of Aon Muhammad Rizvi. Abbas Shah constable P.W.6 witnessed the recovery of key of the brief case P.5 from the personal search of Hafiz Muhammad Nawaz appellant at the time of his arrest. Qamar-ur-Din draftsman, P.W.7 prepared site plan, Exh.P.E and Exh.P.E/1. Dr.Haroon-ur-Rashid Siddiqui medically examined the deceased in an injured condition whereas Dr. Muhammad Ashraf, P.W.9 conducted the post-mortem examination on the dead body of Aon Muhammad Rizvi. Faisal Manzoor, S.I. P.W.17 recorded the formal F.I.R Exh.PN/2; on the basis of statement of the first informant. Raja Muhammad Akram, Inspector/S.H.O., P.W.18 conducted the investigation and submitted the challan. 6. The Deputy District Attorney having tendered in evidence reports of the Chemical Examiner, .Exh.P.T Serologist Exh.P.0 and Forensic Science Laboratory Exh.P.V closed the prosecution case. 7. Hafiz Muhammad Nawaz appellant in his statement under section 342, Cr.P.0 - in answer to Questions Nos.17 and 18 has made the following answers: Question No I 7:
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"The Police completed the incomplete Challan of the case on 10-11.1999 and my name was not mentioned in the last Challan Zinini on 10-11-1999'. My name was even not mentioned in the complete Challan in any respect. Neither my bailable or non-bailable warrants were even obtained by the Investigating Officer from any Court of law. Till 13-1-2000 my arrest is shown. The police in connivance with the complainant party falsely involved me along with others to show their Karvaees. Question No,18: "The P.Ws. Are related inter se and are sons of the deceased. No independent witness of the locality has been appeared in the case 'and being the members of Shia Sect have deposed against me. I was shown to them before the identification parade as admitted by the P.W. In the statement before the Court. They are chance witnesses and their statement does not rings the truth. ' Wasim Munir appellant in his statement under section 342, Cr.P.0 in answer to Question No,4, "why this case against you or why the P.Ws. Deposed against you" answered as under :- "The Police has shown its Karvaie to involve maximum number of accused to make the case more sensitive and heinous. I was also involved in this case falsely, maliciously and with ulterior motives. ' The P.Ws. Have deposed against me falsely on the asking of the Police to strengthen the prosecution case. No independent witness has been produced or cited in the case none from locality has supported the false prosecution version." ' The learned trial Judge having evaluated the prosecution evidence convicted Hafiz Muhammad Nawaz under section 302/449, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 whereas Wasim Munir was convicted under section 201, P.P.C. And acquitted the remaining accused from the charge except Amir Nisar who being fugitive from law was declared absconder. ' Syed Muhammad Qasim (P.W.15) and Syed Ali Hussain Rizvi (P.W.16), the eye-witnesses of the occurrence while confirming the prosecution story as narrated in the F.I.R described each detail of the occurrence in their statements and also narrated the events subsequent to the occurrence. The witnesses while corroborating each other on each material point fully supported the prosecution case against Muhammad Nawaz appellant. The witnesses at the identification parade correctly identified Hafiz Muhammad Nawaz as one, who being armed with klashanikov fired at the deceased in the occurrence. The eye-witnesses have stated that the fateful occurrence took place at 7-45 a.m. In the courtyard of their house, when their father Aon Muhammad Rizvi while strolling in the courtyard was offering Tasbih. Syed Muhammad Qasim Rizvi (P.W.15), was present in the courtyard to take his sister to school in the vehicle parked in the courtyard, whereas Ali Hussain Rizvi his elder brother being present in the house on the report of firing rushed towards the courtyard of the house and witnessed the occurrence.. Hafiz Muhammad Nawaz opened firing at the deceased with klashanikov, whereas his companion namely Amir Nisar (absconder) being armed with pistol fired at the deceased and their third companion while keeping the motorcycle bearing No,SGH9400 ready outside the courtyard of the house was waiting for them. The accused after firing at the deceased fled away from the spot on the motorcycle. Nisar Ali (P.W.11) has stated that on '11-10-1999 at Maghrib time Tanvir ul Islam in the company of Mateen, Ifran Siddiqui and Qari Abdul Waheed came to him at his house. Tanvir ul Islam accused was .His class fellow in Zia ul Islam School, Rawalpindi and was also a business partner of his brother namely Sheikh Abdul Aziz and was running a shop near the house of Aon Muhammad Rizvi deceased. Tanvir ul Islam disclosed before the witnesses that he and his companions having planned the murder of deceased were watching his activities and movements and as per planning a motorcycle was handed over to Hafiz Muhammad Nawaz who was instructed to operative at the spot with his two companions. The accused further disclosed that they were watching the operation and immediately after occurrence, they disappeared. The witness being city President of Tehrik-e- Jaferia claimed close relations with Rizvi brothers, and for the said reason, the accused
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approached him with the request to exercise his influence and manage pardon for them being not the actual killers. Syed Shahid Akhtar (P.W.12) stated that on 20-1-2000 at about Maghrib time, Amir Nisar accused, a member of Sipah-e-Sehaba, who had a close relations with him visited him at his residence and sought his help. This witness deposed that according to Amir Nisar accused one Asif Zaheer, an activist of Sipah-e-Sehaba desired that the Shia in the country should be wiped out and in the process an Officer. Of PTV was marked to be done to death. The accused disclosed that he and Asif Zaheer before the occurrence on the fateful day went together to a hotel at Said Pur Road, Rawalpindi and Hafiz Muhammad Nawaz and Sheraz also reached at the hotel. Hafiz Muhammad Nawaz deputed Sheraz and Asif Zaheer to watch the situation from the Stadium Road, Hafiz Muhammad Nawaz then proceeded towards Banni with Amir Nisar and Sheraz on a motorcycle. The witness stated that the, accused being under the apprehension of arrest sought his help and he took him to Nayyar Abbas Naqvi, who was closely related to the family of Aon Muhammad Rizvi. The accused disclosed the story in detail before Nayyar Abbas Naqvi in his presence. The witness stated that on 22-1-2000 he and Nayyar Abbas Naqvi approached Ibne Rizvi and Talib Rizvi sons of deceased for pardon for the accused but they refused to accept the pardon of the accused. ' Ibne Muhammad Rizvi (P.W.13) stated that on 12-10-1999 Nasir and Sibt ul Hassan P.W. Met him and Talib Rizvi in the Imam Bargah and proposed for pardon for Tanvir ul Islam, Ifran Muhammad Mateen and Qari Waheed accused but he refused to give pardon to them. On 22.-1-2000 Shahid Akhtar Zaidi and Nayyar Abbas made a similar request to him on behalf of Amir Nisar but he refused to accept their request. Syed Najam Abbas Naqvi (P W.14) stated that in his presence Hafiz Muhammad Nawaz accused having made a disclosure regarding the weapon of offence used in the occurrence led to the recovery of brief case P.6 from the house of Noman Fawad. The accused while, opening the brief case got recovered klashanikov P.7 alongwith two loaded magazine P.7/1-2 and fifty nine bullets P.8/1-59. The accused also got recovered .30 bore pistol P.9 with magazine P.10, two passports P.11 and P.12 with an identity card P.13 of Asif Zaheer from the same brief case. ' Dr. Haroon Rashid Siddiqui (P.W.8) medically examined the deceased on 7.-10-1999 at 7-55 a.m. And found the following injuries on his person:-- "Patient was irritaval and gasping with blood all over the body. BP Nil, Pulse Nil. With visible Cyanosis of tongue. Immediately I/V line was maintained and oxygen given. And patient was immediately shifted to main operation theatre by the Surgical Department. Following injuries were noted:- ' Injury No,1:-- An entry wound of bullet of I x 1-1/2 c.m. Over pericordim in left lower chest at mid clavicular line. ' Injury No,2:-- Another entry wound of bullet in left lumber region in anterolateral area of 1/2 x 1 c.m. Bleeding profusely. ' Injury No,3:-- An entry wound of bullet in left lower abdomen in left iliac fossa 1 x 1 c.m. Also bleeding profusely. ' Injury No,4:-- Two side by side bullet entry wounds in middle area of left lateral aspect of left thigh each of 1/2 x 1/2 c.m." ' According to the Doctor, the deceased succumbed to the injuries shortly after his medical examination on the day of occurrence in the hospital. Dr. Muhammad Ashraf conducted the post- mortem examination on the dead body of Aon Muhammad Rizvi on the same day and traced the following injuries on his person:- "(1). Lacerated wound of fire-arm 0.05 x 0.05 c.m. On the left front of chest, 5 c.m. Lateral to mid sternal line. It was a wound of entry. (2) Lacerated wound of fire-arm 0.05 x 0.05 c.m. On the left front of chest, 13. c.m. Below the left nipple. It is a wound of entry. (3) Lacerated wound of entry of firearm 0.05 x.05 c.m. On the left hypochonomdrium region of abdomen.
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(4) Lacerated wound Of entry of firearm 0.05 x 0.05 c.m. On the left front of chest 22 c.m. Below the axilla. (5) Lacerated wound of fire-arm 0.5 x 0.5 c.m. On the left lumber region of abdomen on frontal aspect. (6) Lacerated wound of exit fire-arm 0.5 x 0.7 c.m. On the right back of chest, 16 c.m. Lateral to mid vertebral line and 28 c.m. Below the superaclavicular fossae. (7) Lacerated wound of fire-arm .5 x .7 'c.m. On the back of right lumber region, 12 c.m. Lateral to mid vertenbral line. It is an exit wound. (8) Lacerated wound of fire-arm .5 x .75 c.m. On the nit.' vertebral line 5. c.m. Above the anal cleft. (9) Lacerated wound of fire-arm .5 x .75 c.m. On the mid vertebral line 3 c.m. Above the injury No,8. It is an exit wound. (10)Lacerted wound of exit of firearm .5 x 75 c.m. On the back of right of right lumber region of abdomen. (11)Lacerated wound of exit of firearm .5 x 75 c.m. On the right back of chest below the lower border of scapula. (12)Lacerated Wound of entry 'of firearm .5 x 7.5 c.m. On the interior surface of left thigh, 10 c.m. Below the inguinal fold." ' Raja Muhammad Akram, Inspector S.H.O. Police Station New Town, Rawalpindi (P.W.18), who conducted the investigation on receipt of information of the occurrence, while reaching in the Holy Family Hospital, Rawalpindi recorded the statement Exh.F'.N) of Qasiin Rizvi and sent the same to the police station for registration of case. He having examined the dead body prepared the injury statement and inquest report Exh.P.O and Exh.P.P respectively of the deceased and handed over the dead body to Nasir Mehmood Constable to take it to the mortuary for post-mortem examination. During the spot inspection, the Investigating Officer prepared rough site plans and secured the blood through cotton from the place of occurrence vide memo. Exh.P.B and recovered fourteen crime empties P.3/1-14 of 30 bore pistol and a missed bullet P.11 of klashnikov and after taking the same into possession vide memo. Exh.P.0 recorded the statement of witnesses under section 161 Cr.P.C. The last worn clothes of the deceased i,e, Chaddar P.1 and shirt P.2 produced before him by Nasir Mehmood Constable, were taken into possession by him vide memo. ' Exh . P. A. Under the direction of Investigating Officer, draftsman inspected the spot on 8-10-1999 and on pointation of witnesses prepared site plans Exh.P.E and Exh.P.E/1. The Station House Officer having arrested the accused namely Abdul Waheed, Muhammad Mateen, Tanvir ul Islam and Irfan Ahmad Siddiqui on 21-10-1999 got them identified by the witnesses in the police station as the same person who were seen moving around the house of the deceased prior to the occurrence. On personal search of Hafiz Muhammad Nawaz at the time of his arrest on 13-1-2000 the Station House Officer recovered key P.5 of the brief case which was taken into possession vide memo. Exh.P.D. The accused as per direction of Investigating Officer muffled his face as he was yet to be put to the identification parade. The Station House Officer produced the accused before a Magistrate on the same day and the Magistrate directed for remission of his custody to the Jail authorities for the purpose of holding his identification parade. The Additional District Magistrate on an application Exh.P.H/1 moved by the Investigating Officer deputed a Magistrate to conduct the identification parade of Muhammad Nawaz appellant and consequently, the identification parade of the accused was held on 14-1-2000 in the Central Jail in which, the P. Ws. Correctly identified Hafiz Muhammad Nawaz as culprit. The Investigating Officer then obtained the physical remand of accused and during the investigation the accused led to the recovery of weapon of offence. The appellant was separately challaned under section 13 of West Pakistan Arms Ordinance, 1965 for keeping illicit fire-arm in his custody. Muhammad Noman Fawad co-accused of the appellant, who was keeping brief case in his custody at his residence was challaned under section 201 P .P.0 . On
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the disclosure of Hafiz Muhammad Nawaz, motorcycle bearing registration No,SGH 9400 P.14 was recovered from the house of Wasim Munir accused situated in Asghar Mall Scheme, Rawalpindi, which was taken into possession vide recovery memo. Exh.P.N and Wasim Munir was also arrested and challaned to face the trial with remaining accused. ' Learned counsel for the convicts/appellants has raised the following contentions:- (a) That the fact that deceased was strolling in the courtyard while offering Tasbih in the morning would indicate that deceased was fired at, when after Fajjar Prayer, he was offering Tasbih in the courtyard, much before the time of ,occurrence given in the F.I.R and that none of.The eye- witnesses had seen the occurrence. The learned counsel submitted that presence of Qasim Rizvi in the courtyard of the house at the time of occurrence was not supported by the attending circumstances, whereas Ali Hussain Rizvi being resident of Satellite Town Rawalpindi would not be expected to be present early in the morning in the house of his father. (b) That as per statement of P.W.P4 the accused on their arrest were shown to the P.Ws. At the Police Station and further eye-witnesses have admitted that one Nasir Mehmood an outsider was also included in the under trial prisoner as participant of the identification parade of Hafiz Muhammad Nawaz held in Jail and thus the identification of accused was not transparent. (c) That at the time of identification the witnesses have not described the role-played by the accused, under identification and without describing the role-played by an accused the evidence of his identification would be of no consequence. (d) That since the identification parade of the accused was not held in accordance with the rules, therefore, the same would lose its evidentiary value to be used at the trial. (e) That the motorcycle bearing No,SGH 9400 which was recovered from the house of Wasim Munir would not be used as an incriminating evidence against the appellants. (t) That the doctor who medically examined the deceased in injured condition traced out only four injuries on his person, whereas the Doctor, who conducted the postmortem examination found six entry wounds with the same number of exit wounds.…
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