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Petitioner: MUHAMMAD ASLAM alias ACHA & others VS Respondent: STATE and another
Court Name: Federal Shariat Court Judge(s): Rizwan Ali Dodani, Dr. Allama Fida Muhammad Khan, Shahzado Sheikh Title: MUHAMMAD ASLAM alias ACHA & others vs STATE and another Case No.: Crl. Appeal No, 2/L of 2007 and M.R. No, 3/L of 2008 Date of Judgment:2011-07-20 Reported As: PLJ 2012 FSC 47 Result: Appeal dismissed
JUDGMENT
JUDGMENT Shahzado Shaikh, J.--Appellants Muhammad Aslam alias Acha, Muhammad Ashraf alias Pappu, Shafaqat alias Shaqqi and Dilbar alias Kaka have through this appeal challenged the judgment dated 30.11.2006 delivered by learned Additional Sessions Judge, Multan in Murder Case No, 10-S of 2004 & Murder Trial No, 15-S of 2004, whereby they were convicted and sentenced as under:-- {{TABLE}} (i) Accused Muhammad Aslam: Offence Sentence Under Section 302-B of the Pakistan Penal CodeDeath Sentence and to pay compensation of Rs, 50,000/- to the legal heirs of deceased Falaksher under Section 544-A of the Code of Criminal Procedure. The compensation was ordered to be recovered as arrears of land revenue Under Section 452/34 of the Pakistan Penal Code.Seven years rigorous imprisonment with fine of Rs, 5,000/- or in default
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thereof to further undergo three months simple imprisonment.
Under Section 412 of the " Pakistan Penal Code.10 years rigorous imprisonment with fine of Rs, 5000/- or in default thereof to further undergo three months simple imprisonment. Under Section 324/34 of the Pakistan Penal Code10 years rigorous imprisonment with. fine of Rs, 5,000/- or in default thereof to further undergo three months simple imprisonment. He was also directed to pay compensation of Rs, 25,000/- to the injured PW Mst. Budhai. The amount of compensation was ordered to recover as arrears of land revenue. (ii) Accused Muhammad Ashraf, Shafqat & Dilber: Under Section 302-B/34 the Pakistan Penal Code.Life of imprisonment each and to pay compensation of Rs, 50,000/- each to the legal heirs of deceased Falaksher under Section 544-A of the Code of Criminal Procedure. The amount of compensation was ordered to be recovered as arrears of land revenue.
Under Section 452/34 of the Pakistan Penal Code.Seven years rigorous imprisonment each with fine of Rs, 5,000/- each or in default thereof to further undergo three months simple imprisonment each. Under Section 412 of the Pakistan Penal Code.10 years rigorous imprisonment each with fine of Rs, 5000/- each or in
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default thereof to further undergo three months simple imprisonment each. Under Section 324/34 of the Pakistan Penal Code10 years rigorous imprisonment each with fine of Rs, 5000/-each or in default thereof to further undergo three months simple imprisonment each. They were .also directed to pay compensation of Rs, 25,000/-each to the injured PW Mst. Budhai under Section 544-A of the Code of Criminal Procedure. The amount of compensation was ordered to recover as arrears of land revenue. {{TABLE}} All the sentences were ordered to run concurrently. Benefit of Section 382-B of the Code of Criminal Procedure was given to accused Shafqat, Dilber and Muhammad Ashraf. The learned Additional Sessions Judge, Multan also moved a murder reference, registered in this Court as Murder Reference No, 3/L of 2008 (The State Vs. Muhammad Aslam), which has been put up for confirmation of death sentence along with the main appeal. 2. The prosecution case in brief is that on 15.10.2003 the complainant Ghulam Hussain PW.4 recorded complaint Ex.PA which was registered as FIR No, 212/03 Ex.PA/1 dated 15.10.2003 at police 'station Qadirpur Rawan, District Multan, that he and his brother-in-law Falak Sher were residing in two separate houses having a common Courtyard. In the night between 14/15.10.2003 at about 1.00 a.m. he woke up on the barking of dogs. He opened the door and saw outside where three persons with muffled faces armed with fire-arm weapons, whose some features were mentioned in the crime report, were present. The two persons caught him by the arms, while the third one put his - pistol on his temporal region. One person asked him about Falak Sher and he told him that he was sleeping in the adjacent room. They searched the room. Another person having medium height and built, wearing white clothes was also present there, who was making instructional signs to the other accused. Two persons entered into the other room and dragged Haji Falak Sher to the Courtyard and murdered him by fire of pistol. On hearing firing, Mst. Budhai Mai, mother of the complainant, was attracted to the spot. The accused also gave injuries to her with sota blows. On hearing alarm and firing Muhammad Nawaz, Muhammad Aslam and other neighbours also were attracted to the spot upon which the accused fled away. However, cloth, covering faces of the accused, fell down, and he alongwith the PWs identified them in electric light. The complainant further stated that the accused also took away cash Rs, 14,000/-, gold ornaments weighing 8'/2 tolas i,e, kantey, bangles, necklace, nath (nose ring) and two finger. rings. Hence the complainant got registered FIR No, 212/03 dated 15.10.2003 at Police Station Qadirpur Rawan under Sections 302/392 of the Pakistan Penal Code. 3. Investigation ensued as a consequence of registration of crime report. Muhammad Ashraf Sub-
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Inspector PW. 18 undertook the investigation. He recorded complaint/statement Ex.PA of the complainant at. Tataypur where he was present on patrol duty and sent the same to the Police Station for registration of the case. He visited the place of occurrence, inspected the dead body, prepared inquest report Ex.PD/2 as well as injury statement Ex.PD/3. He inspected the spot, prepared site-plan Ex.PZ, secured blood stained earth from the spot and took the same into possession through recovery memo. Ex.PF. He took into possession one crime empty P-5 through recovery memo. Ex.PG as well as a bulb P-6 through recovery memo. Ex.PH. He recorded statement of the PWs under Section 161 of the Code of Criminal Procedure as well as supplementary statement of the complainant at the spot and sent the dead body to the mortuary. After post- mortem examination, Muhammad Ramzan constable produced before him last worn clothes of the deceased i,e, bunian P-3 and shalwar P-4 alongwith a copy of the post-mortem report which he took into possession through recovery memo. Ex.PE and recorded statements of the PWs under Section 161 of the Code of Criminal Procedure in this respect. He got prepared scaled site-plan Ex.PB, Ex.PB/1 and Ex.PB/2 from draftsman and recorded his statement under Section 161 of the Code of Criminal Procedure. On 07.12.2003 he recorded statements of Khadim Hussain Moharrar/Head Constable and Muhammad Afzal constable under Section 161 of the Code of Criminal Procedure. On 10.12.2003 he received report of the Chemical Examiner. On 09.02.2004 he summoned accused Muhammad Aslam, Muhammad Ashraf and Shafqat from jail in order to join them in investigation. He prepared Fard Nishan Dahi Ex.PQ, Ex.PR & Ex.PS. On 16.03.2004 he recorded statement of Muhammad Hanif Moharrir and Zaheer Ahmed constable under Section 161 of the Code of Criminal Procedure. Shafqat alias Shaki and Ashraf alias Pappu, daring interrogation, made disclosure that police of Police Station Makhdoom Rashid had already recovered .12 bore gun and .30 bore pistol from them on 20.02.2004. He obtained the copies of recovery memo. of the said weapons from Irshad-ul-Hassan Sub-Inspector of Police Station Makhdocm Rashid and added offence under Section 411 of the Pakistan Penal Code. Aslam accused made disclosure and led the police party to his house and got recovered a sum of Rs, 2000/- P-7/1-2 and one gold bangle P-8 from a residential room of his house which were taken into possession through recovery memo. Ex.PJ and site-plan of the place of recovery Ex.PJ/1 was prepared. Ashraf accused got recovered currency notes valuing Rs, 1750/- as well as two gold kantey from his house which were taken into possession through recovery memo. Ex.PK and site-plan of the place of recovery Ex.PK/1 was prepared. Shafqat accused got recovered a sum of Rs, 2700/- and one gold ring P-18 from his house which were taken into possession through recovery memo. Ex.PL and site-plan of place of recovery Ex.PL/1 was prepared. He recorded statements of PWs under Section 161 of the Code of Criminal Procedure regarding recoveries. The currency notes and gold ornaments were identified by Muhammad Nawaz and Muhammad Aslam. PWs at the time of recovery. On 22.02.2004 he recovered .30 bore pistol P-18 on the pointation of Aslam accused from the cattle shed and the same was taken into possession through recovery memo. Ex.PM and prepared site-plan of the place of recovery Ex.PM/1. He sent all the accused to judicial lock up on 23.02.2004. On 08.03.2004 he interrogated Dilbar accused who was already in police custody of Police Station Budhla Sant in connection with another case and sent him to jail on 09.03.2004 for his Identification Parade. On 07.04.2004 he interrogated Dilbar accused in the presence of the PWs who got recovered a sum of Rs, 2000/- P-19/1-2, gold nath P-20 and two silver bangles P-21/1-2 from his house which were taken into possession through recovery memo. Ex.PN and prepared site-plan of place of recovery Ex.PN/1. He also recovered a .30 bore pistol P-22 alongwith two live bullets P-23/1-2 on the disclosure of Dilbar accused which were taken into possession through recovery memo. Ex.PP and site-plan of the place of recovery Ex.PP/1 was prepared. He recorded statement of Muhammad Hanif Goldsmith under Section 161 of the Code of Criminal Procedure. He got medically examined Mst. Allah Budhai, mother of the complainant on 06.06.2004. After completion of investigation the
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Station House Officer submitted report under Section 173 of the Code of Criminal Procedure before the trial Court on 15.04.2004 requiring the accused to face trial. 4. The learned trial Court framed charge against all the accused on 11.11.2004 under Section 452 read with Section 34 of the Pakistan Penal Code as well as under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with Section 34 of the Pakistan Penal Code and under Section 412 of the Pakistan Penal Code. After recording statements of four prosecution witnesses, the learned trial Court framed the charge afresh against the accused under Section 452 read with Section 34 of the Pakistan Penal Code, under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, VI of 1979 read with Section 302/34 of the Pakistan Penal Code as well as under Section 412 Section 324/34 of the Pakistan Penal Code. The accused did not plead guilty and claimed trial. 5. The prosecution produced eighteen witnesses to prove its case. The gist of the deposition of the witnesses is as follows:-- (i) PW. 1 Khadim Hussain Moharrir/Head Constable stated that on 15.10.2003 the Investigating Officer handed over to him one sealed parcel of blood-stained earth, one sealed parcel of crime empty, last worn clothes of the deceased and a bulb which he kept in Malkhana for safe custody and on 21.11.2003 he handed over parcel of blood stained earth and parcel of crime empty to Muhammad Afzal constable for onward transmission to the office of the Chemical Examiner and Forensic Science Laboratory. (ii) PW.2 Muhammad Afzal constable had delivered one scaled parcel of blood stained earth in the office of the Chemical Examiner and another scaled parcel of crime empty in the office of Forensic Science Laboratory on 22.11.2003 which were handed over to him by Khadim Hussain Moharriron 21.11.2003. (iii)PW.3 Muhammad Hanif Moharrir/Head Constable stated that on 22.02.2004 the Investigating Officer handed over to him a sealed parcel of pistol for keeping in safe custody and for onward transmission to the office of the Forensic Science Laboratory, Lahore and on 07.03.2004 he handed over the said sealed parcel to Zaheer Ahmed constable for onward transmission to the office of the Forensic Science Laboratory, Lahore. (iv)Ghulam Hussain complainant appeared as PW.4 and endorsed the contents of his complaint Ex.PA. He further stated that after recording complaint, the police accompanied him to the spot. He checked the house of his brother Dr. Rab Nawaz and found missing from the said house a single barrel .12 bore gun alongwith licence, eight unstitched ladies suits and silver ornaments consisting of pazaib, har & churian which were also taken away by the accused. He identified accused Muhammad Aslam, Muhammad Ashraf and Muhammad Safdar in identification parade held at District Jail, Multan. He stated that Muhammad Aslam was the person who caught hold of him and subsequently brought Falak Sher holding his right arm and made a fire at Falak Sher, Muhammad Ashraf, who inflicted injury with butt of his pistol to Mst. Budhai resulting in fracture of her right arm and he had also caught Falak Sher from his right arm and Shafqat accused was the person who was wearing white colour clothes at the time of occurrence. He also identified accused Dilbar in another identification parade who put pistol on his temporal region. He also identified gold ornaments; a gold bangle, pair of Kantey, Nath, two silver bangles, one gold ring and a sum of Rs, 8,450/-. (v) PW.5 Mst. Budhai, injured witness, gave details of the occurrence and supported the prosecution version. (vi)PW.6 Muhammad Aslam stated that he alongwith Muhammad Nawaz PW reached at the place of occurrence and saw the occurrence. He identified accused Aslam, Ashraf and Shafqat with their respective roles in the identification parade while in second identification parade he identified accused Dilber with his specific role. He alongwith Muhammad Nawaz had also identified
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dead body of Falak Sher deceased at the time of autopsy. He attested recovery memos. Ex.PE through Ex.PT and his statements were recorded by the police under Section 161 of the Code of Criminal Procedure regarding recoveries. (vii) PW.7 Muhammad Ramzan constable had escorted the dead body of Falak Sher to. R.H.C. Hospital, Qadirpur Rawan for post-mortem examination. The Medical Officer directed him to take the dead body to Nishtar Hospital, Multan. After post-mortem examination the doctor handed over to him bunian P-3, shalwar P-4, which he produced before the Investigating Officer who took the same into possession through recovery memo. Ex.PE and he alongwith, Muhammad Nawaz and Aslam attested the said recovery memo. and the Investigating Officer recorded his statement under Section 161 of the Code of Criminal Procedure. (viii) PW.8 Haq Nawaz Chohan, Judicial Magistrate 1st Class had conducted identification parade of accused Dilber on 25.03.2004 at District Jail, Multan wherein complainant Ghulam Hussain as well as PWs Muhammad Nawaz and Muhammad Aslam had identified accused Dilber. (ix)PW.9 Irfan Hayat draftsman had prepared scaled site-plan in triplicate Ex.PB, Ex.PB/1 and Ex.PB/2 and handed over to the Thanedar who recorded his statement under Section 161 of the Code of Criminal Procedure. (x)PW. 10 Doctor Muhammad Akram had conducted post-mortem examination on the dead body of Haji Falak Sher on 15.10.2003 and observed as follows:-- "Eyes and mouth were closed, lying supine mortuary table. Rigor mortus and post mortem staining were present, wearing white Bunian and light brown shalwar (blood stained). I found the following injuries on his person:-- 1. A circular lacerated wounds of entry (3/4) x (3/4) cm on the left lateral side of abdomen, burn skin surrounding area 3 cm in circle, 23 cm blow left nipple and 22 cm from the umbilicus. 2. A lacerated wound of exit, 1 x (2/4) cm star shape oh the back side of the right chest 16 cm from the mid line and 6 cm blow the interior boarder of right scapula. Burning and tear corresponding cut also present on the Bunian which was marked, signed and handed over to the police. Cranium and spinal Cord, was found healthy. Thorax. There was fracture of 8th rib of right side of chest exit wound present full of blood. Rest of the organs Were healthy except blood vessels which were ruptured. Abdomen. In walls there was penetration of bullets. Left side was full of blood and it was entry wound. Stomach, Lever and spleen and left kidney were found ruptured from upper side and right kidney was normal. Bladder was full of urine and rest of the organs were found normal. In my opinion the cause of death was due to excessive hemorrhage and shock. Injury No, 1 was caused by fire-arm which damage the vital organ and was sufficient to cause the death in ordinary course of nature, and the same was anti mortem. The probable time between injury and death was within one hour and between death and post-mortem was about 16 hours. After post- mortem examination I handed over dead body of deceased, post-mortem examination report and police papers and last worn clothes of the deceased to the police. Ex.PD is the correct carbon copy of my post-mortem Report No, 5A/2003, which is in my hand bears my signatures and seals. Ex.PD/1 is the visual diagram showing the seat of injury. Ex.PD/2 is inquest report, Ex.PD/3 is the injury statement/police application, Ex.PD/1 to Ex.PD/3 also bears my signatures." The doctor also medically examined Mst. Budhai, injured PW, on 6.6.2004 and observed as follows: She was old woman, weak built, average height. She was fully conscious, well oriented time and space. Having B.P 130/80 MMHG, pulse 80 per minute, resp: 22 p/m. The examinee presented earlier also on 21.10.2003 with severe pain and swelling of distal third of right fore-arm near wrist joint with a history of blunt weapon injury inflicted six days prior than. She was treated and X-rayed accordingly vide this RHC Reg. No, 17293 dated 21.10.2003, but before receiving further treatment, she left on her own, against medical advice. On the said date, she was brought by the police (with
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police docket dated 5.6.2004 in case FIR No, 212/03 dated 15.10.2003 of Police Station Qadirpur Rawan) for examination and certification of the fractured right forearm inflicted as per her statement as a result of the old injury mentioned in the para supra. Injury No, 1. Examinee complaints of dull pain of distal third of right fore-arm near wrist joint which aggravates even on grabing the effected area with a firm hand grip, by lifting/pulling some weight or by using the right hand for routing daily manual house hold activities. Advised X-ray right fore- arm (AP and lateral views). Injury No, 1 was kept under observation for X-ray and clinical assessment. According to X-ray Ex.PW dated 21.10.2003 there was fracture in Ulna bone and according to second X-ray Ex.PW/1 dated 7.6.2004 Ulna bone fracture was healed, and also the shadow of the fracture was present in both these X-ray. The injuries were caused with blunt weapon. Ex.PX is the correct carbon copy of M.L.R of Mst. Budhai Mai which is also in my hand and bears my signature." (xi)PW. 11 Abdul Qadir Head Constable had drafted FIR Ex.PA/1 on receipt of complaint Ex.PA sent to him by Muhammad Ashraf Sub-Inspector through Ejaz Hussain constable. (xii) PW.12 Ghulam Rasool Assistant Sub-Inspector stated that on 04.12.2003 he alongwith Irshad- ul-Hassan Sub-Inspector and Abdul Sattar Constable was present at 18- Kassi Budhla Road in connection with investigation of case FIR No, 303/03 registered at Police Station Makhdoom Rasheed, Multan. At about 5.00 a.m. one man armed with .12 bore single barrel gun came there and on seeing police party he tried to returned back but he was apprehended at the spot. Later on his name was transpired as Shafqat alias Shaki. The police took into possession the said gun P-1 alongwith a live cartridge P2 through recovery memo. Ex.PC. The witness and Abdul Sattar constable attested this recovery memo. Ex.PC. (xiii) PW.13 Zaheer Ahmed constable had deposited one scaled parcel in the office of the Chemical Examiner on 08.03.2004 which was handed over to him by the Moharrir/Head Constable on 07.03.2004. (xiv) Saeed Ahmed Reader appeared to testify the signatures and handwriting of Rana Saleem Ahmed Khan, Special Judicial Magistrate who had gone abroad. He had seen application for holding identification parade Ex.PY and order thereon Ex.PY/1 which was signed by, Rana Saleem, Ahmed Khan, Special Judicial Magistrate. He also identified his hand writing and signatures on proceedings of Identification Parade Ex.PY/2. (xv) PW.15 Muhammad Hanif Goldsmith had identified gold ornaments Kantey (ear ring) P-14/1-2, one Nath (gold) P-20, one bangle (Churi) P-8, one finger ring P-18 and two silver bangles P-21/1-2 which were prepared by him. (xvi) PW.16 Ghulam Hussain Asksta.nt Sub-Inspector stated that on 18.12.2003 he got conducted identification parade of Ashraf alias Pappu, Aslam alias Acha and Shafqat alias Shaki accused through Rana, Saleem Magistrate. On his application the Magistrate delivered copy of identification parade to him. He also got conducted identification parade of Dilber accused through the Magistrate on 25.03.2004. On his application the Magistrate delivered copy of identification parade to him. (xvii) PW.17 Liaquat Ali Sub-Inspector had taken custody of accused Muhammad Ashraf alias Pappu, Muhammad Aslam alias Acha and Shafqat alias Shaka accused from the police of Police Station Makhdoom Rashid where they were confined in some other case. On 08.12.2003 he submitted an application Ex.PY to the Illaqa Magistrate for holding identification parade. (xviii) PW.18 Muhammad Ashraf Sub-Inspector had undertaken the investigation whose detail has already been mentioned in Paragraph 3 of this judgment. 6. The prosecution tendered in evidence report of the Chemical Examiner regarding blood-stained earth Ex.P.AA, report of Serologist regarding blood-stained earth Ex.P.BB and report of Forensic Science Laboratory Ex.P.CC -and closed its evidence on 21.07.2005. Thereafter the learned trial
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Court recorded statements of the accused under Section 342 of the Code of Criminal Procedure on 25.07.2005. The accused denied the allegations levelled against them and claimed their innocence. Muhammad Aslam accused stated in reply to question "Why this case against you and why the PWs have deposed against you?" as under: "The case against me is false and is the result of police Karwai. The police in order to show its efficiency assured the complainant party, that I was the real culprit, therefore, the PWs have deposed falsely against me. Infact it was a blind murder. The culprits were not identified by the PWs. The alleged looted ornaments were not proved by the prosecution, allegedly recovered from me and my co-accused. It is on the file that the ornaments which were alleged recovered from me and my co-accused were identified by a gold smith PW after 2/3 months of the preparation of the gold ornaments by the gold smith. The recovery of ornaments were shown to be recovered from the accused persons after about 6/7 months. The PWs are interested witnesses and related to each other, therefore, they have deposed falsely against me and my co-accused." Accused Shafqat alias Shaqi, in reply to the above-mentioned question, relied upon the answer of his co-accused Muhammad Aslam while accused Dilber stated as under: The police has malafidely involved me in the present case on the asking of Aslam etc., my co- accused. I am innocent. The case against me is to show the police Karwai only. I offer the PWs to decide the case on oath of Holy Quran, as I am innocent." 7. Accused Dilber recorded his statement on oath under Section 340(2) of the Code of Criminal Procedure on 27.07.2005. He stated that he was arrested by the police of Police Station Budhla Sant. Ghulam Hussain, Aslam, Nawaz and Ashraf Sub-Inspector came there and met the Station House Officer. They inquired from him about the occurrence upon which he stated that he had not committed the offence and he offered them special oath regarding innocence. The police tortured him at Police Station where he detained for one month without producing him before any Magistrate. Then his identification parade was held wherein Ghulam Hussain, Aslam and Haq Nawaz PWs identified him. He remained on physical remand for eleven days and nothing was recovered from his possession or on his pointation and the recoveries were falsely implicated upon him. Muhammad Hanif and Ghulam Hussain came to him at Police Station and they offered him to become approver but he refused to become the same. The witness further stated that during the days of occurrence, he was at Islamabad and when he came to his village, the police of Police Station Budhla Sant arrested him when he was going to Islamabad for labour. The police recovered an iron hook from him which was used for lifting the luggage. 8. The accused…
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