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Petitioner: MUHAMMAD YASIN VS Respondent: STATE
1995 M L D 1663
1995 M L D 1663
[Lahore]
Before Raja Abdul Aziz Bhatti and Iftikhar Husain Chaudhry, JJ
MUHAMMAD YASIN‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.25 and Murder Reference No.91 of 1991, heard on 3rd April, 1995.
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.337‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.16‑‑‑Accomplice‑‑‑An accomplice is a person supposed to be directly or indirectly concerned in or privy to the offence.
(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Arts.16 & 129, illus. (b)‑‑‑Penal Code. (XLV of 1860), S.302‑‑‑Testimony of accomplice‑‑‑Corroboration‑‑‑Conviction of an accused in a criminal case can be legally based solely on the evidence of an accomplice, but on factual plane corroboration of the testimony of accomplice is required.‑‑ [Accomplice].
(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Arts.16 & 129, illus. (b)‑‑‑Accomplice's evidence‑‑‑Nature and extent of corroboration of the testimony, of accomplice summed up.‑‑‑[Accomplice].
The nature and extent of corroboration required is summed up as follows:‑‑‑
(i) It is not necessary that there should be independent confirmation of accomplice evidence in every material circumstance in the sense that the independent evidence in case, apart from the testimony of the accomplice, should in itself be sufficient to sustain conviction. In the words of Lord Reading: "Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case. It would be merely confirmatory of other and independent testimony."
(ii) The material circumstance needed to corroborate the accomplice evidence should suffice to make it probable that testimony of the accomplice was true and was safe to be relied upon.
(iii) The corroboration should come from independent sources and ordinarily the testimony of one accomplice is not considered sufficient corroboration of testimony of an other accomplice.
(iv) It is not required that there should be direct evidence to corroborate the evidence regarding commission of crime by the accused because it may not be right to accept that the independent corroboration should cover the whole of the prosecution story because accomplice evidence is sought for and used only when no direct evidence is otherwise available. Many crimes are usually committed between the accomplice in secret and the case in hand is one of those cases.
The King v. Baskerville (1916) 2 KB p. 658 ref.
(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Art.16‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Tests for assessing approver's evidence‑‑‑Approver's evidence; though acceptable, yet should be approached ‑‑‑Usual tests for weighing evidence of an approver are, probability of the truth of his deposition, the circumstances in which evidence has been given by him, whether, he has made a full and complete disclosure of facts involved in the case and corroboration in material particulars of his testimony from other sources.‑‑‑[Approver].
(e) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302‑‑‑Appraisal of evidence‑‑‑Pardon had been tendered to the approver in accordance with law‑‑‑Defence plea had, no bearing on the prosecution case and was rejected‑‑‑Evidence regarding extra judicial confession made by accused was reliable‑‑‑Accused had killed‑the deceased in conspiracy with the approver on the night of occurrence after having entered his house and his participation in the commission of the offence was not doubtful‑‑‑Statement of approver was voluntary and was corroborated by evidence of recovery and could be relied upon for conviction‑‑‑Conviction of accused was upheld accordingly.
The King v. Baskerville (1916) 2 KB p.658 and Shamsher Bahadar Saxena v. State of Bihar AIR 1956 Pat. 404 ref.
(f) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302‑‑‑Sentence‑‑‑Mitigating circumstance‑‑‑Conviction of accused was based on the evidence of accomplice‑‑‑Sentence of death of accused was reduced to imprisonment for life in circumstances: ‑‑[Accomplice].
Sardar Muhammad Ishaq Khan for Appellant.
M. Fayyaz Ahmad Khawaja with Syed Sajjad Hussain Shah, A. A.‑G. for the State.
Dates of hearing: 2nd and 3rd April, 1995.
JUDGMENT
IFTIKHAR HUSAIN CHAUDHRY, J.‑‑‑Muhammad Yasin appellant was convicted under section 302, P.P.C. and sentenced to death by judgment dated 19‑2‑1991 of learned Sessions Judge, Islamabad. Criminal Appeal No.25 of 1991 has been submitted by him in this Court. Similarly the matter was referred by learned Sessions Judge, Islamabad for confirmation of the sentence of death awarded to the appellant. This order shall dispose of Murder Reference No.91 of 1991 and Criminal Appeal No.25 of 1991.
2. Occurrence in this case took place on 8‑5‑1986 at 11‑30 p.m. F.I.R. No.40, dated 9‑5‑1986 Exh.PD was registered at Police Station, Margalla District Islamabad on 9‑5‑1986 on the report of Masam Khan. Masam Khan reported that he was employed as Naib Qasid in the Oil and Gas Development Corporation and resided in House No.7, Street No.53, Sector F‑8/4, Islamabad alongwith Ghulam Ali LDC. Atta Muhammad Minhas a Deputy Chief Accountant in the Oil and Gas Development Corporation resided in the house. According to complainant he and Ghulam Ali went to sleep at about 9‑00 p.m. and awoke at about 11‑30 p.m. on the report of two shots having been fired. When they reached in the lawn of the house, they saw a middle statured man climbing over the outer gate of the house who was followed by Ghulam Ali but he escaped. It was further stated by the complainant that he and Ghulam All found the drawing room of the house as opened and on entering there found Atta Muhammad lying dead. Consequently the case was registered in the above terms.
2. After considerable time of the incident Mst. Amina Taqdees widow of Atta Muhammad offered to become approver in .the case and her statement under section 164, Cr.P.C. was recorded and present appellant challaned in the case and later tried in the Court of learned Sessions Judge, Islamabad.
3. The prosecution examined as many as 19 witnesses at the trial. Dr. Fazalur Rehman conducted post‑mortem examination of the deceased who at the time of trial had gone abroad but his signatures on post‑mortem examination report were verified by Khalid Javed P.W.16. Post‑mortem Report Exh.PR was placed on record. According to post‑mortem report Exh.PR, the following injuries were found on the person of the deceased:
(1) A wound of entry 1 c.m. x 1 c.m., burning and blackening is positive on the right lower chest 2 c.m., 6 c.m. in midline. Corresponding hole in the vest marked and a signed.
(2) Wound of exit 1 c.m. x 1 c.m. midline between epigastrium and umblicus near the midline.
(3) Wound of entry 1 c.m. x 1 c.m. near the anterior inferior ieiac spine. Burning and tattooing positive.
(4) Contused swelling right lateral aspect of right thigh.
Mst. Amina Taqdees appeared as P.W.1 and made the following statement:
"I was married to Atta Muhammad Minhas deceased of this case in 1972. Immediately after our marriage we remained in Karachi for 1‑1/2 years. Thereafter, my husband was transferred to Rawalpindi. I also accompanied my husband to Rawalpindi and we started living there. After sometime I went to Karachi to the house of my parents in connection with the birth of my second child. When I returned to Rawalpindi after the birth of second child, my husband started mal treating me. His behaviour towards me was very harsh and cruel and he used to pay more attention and importance to his brother's wife namely Mst. Khurshid Begum. After 2/3 years my husband was transferred from Rawalpindi to Islamabad and we also shifted here. In Islamabad we started living in one house i.e. my husband and his family and his brother Muhammad Khan Minhas and his family. While here my husband used to pay more attention to Mst. Khurshid Begum. After returning from his office, my husband used to go to the room of Mst. Khurshid Begum and would pass most of his time, over there. When I used to visit the room of Mst. Khurshid Begum my husband would abuse me and would expel me from there. On one occasion, my deceased husband and Mst. Khurshid Begum went on the upper storey of our house and when objected to their presence over there, my deceased husband gave me a beating. My deceased husband also used to give his pay to Mst. Khurshid Begum and would not give me anything. Even thereafter my husband used to give me beatings oftenly. Ultimately I also claimed divorce from my husband but he did not agree to it.
My deceased husband was Deputy Chief Accountant in O.G.D.C. On the recommendation of some friend of my deceased husband, Yasin accused used to come to our house to meet my husband for some employment. Yasin accused was previously driver of Mini‑Bus and thereafter he started plying a taxi. On the request of my deceased husband, Yasin accused used to take out children from our house to the school and then bring them back from the school to our house.
On the day of occurrence when Yasin accused came to our house to fetch the children to school, my deceased husband got annoyed with him. My deceased husband inquired from the accused as to why he was keeping the photographs of his wife, i.e. myself, on which both of them exchanged hot words and abuses. My deceased husband also gave a beating to the accused at that time. When I intervened and requested my husband not to beat the accused, the deceased also gave me a beating. My husband also asked the accused to return the photographs of his wife i.e. myself and henceforth stop coming to his house. On this, Yasin accused left our house. After some time my husband went to his office. On the same day, at about noon time I received a telephone call from the accused which I responded to in the house of my neighbour. The accused inquired from me whether he should bring back the children from school to her house and I replied in affirmative. When the accused came to our house alongwith the children, the accused told me that he has been insulted by the deceased and that he would take revenge on that score. At that time, I was also ferocious and I suggested to the accused that he should kill the deceased after taking the accused into confidence. I told the accused to come to our house at about 10‑00 p.m. on the same day Le, 9‑5‑1986. I further told him that when he would come to our house, I would keep the outer door of the house open and would send m3 husband upstairs on one or other pretext. When my husband returned from the office, I told him that we would sleep in the basement of the house on the following night, as Ahmad Khan the elder brother of my husband would not sleep in the basement on that night. It was Thursday and on each Thursday Ahmad Khan used to leave Islamabad for Chakwal and would return on Saturday.
On the relevant night my husband and I went to the basement for sleeping. At about 9‑45 p.m. I felt that somebody was present upstairs. I also went upstairs and found that Yasin accused present in the Court was already there. I told Yasin accused that I would be sending my husband upstairs on some pretext. I returned to the basement and went to sleep. After sometime, I told my husband that I was feeling pain in my belly and he should bring the medicine from the upper storey lying in the kitchen. My husband went upstairs and I also stealthily followed him. At that time, Yasin accused was present in the bed room on the upper storey. When he saw my deceased husband entering the kitchen, the accused also came near the kitchen. When my husband was searching for the medicine in the kitchen, Muhammad Yasin accused fired a shot at him with a pistol which hit the deceased on the front chest, probably. In order to save his life, my husband ran towards the drawing room, where he was followed by the accused who fired at him a second shot. I, however, do not know as to on what part of the body this shot had hit the deceased. While running towards the drawing room, my deceased husband was shouting "Bachao" "Bachao". After that my deceased husband came in the T.V. lounge from drawing room, where he was again fired at and as a result of injuries sustained by him, he fell on the ground in the T.V. lounge. After the occurrence, the accused made good his escape after climbing over the gate of the house.
My husband died on the spot. After the occurrence I came on the ground floor and woke my brother‑in‑law Rizwan‑ur‑Rehman, the husband of my sister, who was at that time sleeping in one of the rooms of our house with my three children. In the meanwhile, P.W. Ghulam Ali who was residing in the servant quarter of our house, also came there and helped me in knocking at the door of the room where P.W. Rizwan‑ur‑Rchman was sleeping. When P.W. Rizwan‑ur Rehman got up, I asked him to go upstairs and see for himself as to what has been happened there. At that time, P.W. Masam Khan also arrived there and told P.W. Rizwan‑ur‑Rehman that the victim was already dead. Thereafter, P.W. Rizwan‑ur‑Rehman went out of the house to inform about the occurrence. I, however, do not know what report was lodged to the police about the occurrence. On the following day, we proceeded to our village alongwith the dead body of my husband.
I was arrested in this case High Court. During the investigation, approver in this case. I was accordingly produced before the Deputy Commissioner, where I asked him to pardon me in lieu of narrating the true facts about the occurrence. I have seen my said statement today. It is Exh.PA. It bears my signatures and I admit its contents as correct. On the same day, when my statement was recorded, I was produced in the Court of a Magistrate in Islamabad. At that time, the police and all other persons were turned out from the Court of Magistrate. The Magistrate had given me sufficient time to think over the matter and then to make a statement. I was also put questions by the Magistrate. This document is Exh.PB and was signed by me and is the true account of my answers: After this, the Magistrate had recorded my statement Exh.PC on oath. This statement has been read over to me and I admit its correctness. It was also correctly signed by me before the Magistrate. It comprises of five pages, and all of the pages have been signed by me. After my statement Exh.PC was recorded, the Magistrate handed me over to the police and they took me to the Central Jail Addiala Rawalpindi, where, I am lodged till today. Even today, I have been brought to the Court from the said jail Today also, I have made my statement voluntarily."
4. In cross‑examination she was confronted with her earlier statement made under section 161, Cr.P.C. She admitted in cross‑examination that the room in which she and her deceased husband slept on the night of occurrence was not used by them as bed room previously. She admitted that they used to sleep in another room which was air‑conditioned. She admitted that Rizwan her brother‑in‑law was sleeping in the room located in front of the room in which they had slept on the night of occurrence and that her three children were also sleeping in the same room. She admitted that she had not specifically mentioned any particular medicine to be brought from Almirah where they always used to keep the medicine. She stated in reply to question that no blood had fallen on the ground at any place when the shots were fired at the deceased. She also stated that besides Masam Khan, Ghulam Ali and Muhammad Shafi their neighbourers had also come to the place of occurrence. She admitted that when the police arrived at the spot they found the locks of the Almirahs in the house broken and theft was also suspected. She stated that she could not tell the registration number of the taxi which the accused used to ply during the days of occurrence. She also expressed her ignorance as to the wages were paid to the accused by her husband for transporting their ages w children to and from school. She admitted that her daughters Asma and Saima alongwith other children used to go on the taxi of the accused. She stated that Asma was student of 1st class while Saima studied in 6th class in those days. She stated that make of the taxi was `Morris'. She stated that she never sat with the accused in close company but had been serving him with tea or water in the presence of her husband and some times she alone served the accused. She stated that she never went to any studio for a photograph but admitted that she was photographed on several occasions at her residence. She stated that her husband had given beating to the accused on the day of occurrence at about 7‑00 a.m. and accused had also exchanged abuses with her husband and also gave beating in reply to the deceased. She stated that when she asked her husband not to beat the accused, her husband also gave her beating. She stated that none was injured during incident. She stated that when the accused was taken into confidence at her house on the day of occurrence, her daughters were present but they had not come to them. She denied the suggestion that she had not conspired with the accused for the commission of crime. She also denied the suggestion that in order to save her life she had become approver in the case and had false implicated the accused. She denied the suggestion that Rizwan, Muhammad Shaft and the witness had conspired to kill the deceased.
5. Muhammad Akram, A.S.I. P.W.2 had recorded the formal F.I.R. Bashir Ahmad P.W.3 had transmitted the sealed parcel containing crime empty to Forensic Science Laboratory at Lahore. Ch. Muhammad Ali Magistrate 1st Class, Islamabad P.W.4 had testified the proceedings in which statement of Mst. Amina Taqdees P.W. under section 164, Cr.P.C. was recorded. Abdul Hussain S.I. appeared as P.W.5 and had stated that Muhammad Aslam had collected three crime empties Exh.Pl/1‑3 from the spot in his presence. He had also witnessed recovery of pieces of broken lock Exh.P2 from the spot. In cross‑examination he had stated that two locks fixed on the Almirahs were found broken and were taken into possession.
6. Sh. Ashiq Ali P.W.6 and Muhammad Ejaz Khan P.W.7 are witnesses of extra‑judicial confession. Sh. Ashiq Ali stated that on 4‑2‑1989 he was present at his shop situated in Imperial Market, Rawalpindi. Muhammad Ejaz P.W. was also present at his shop when Muhammad Yasin came to his shop at about 12‑45 p.m. and stated that the police was after him to arrest him in a murder case and asked for help of the witness. The witness stated that the accused told him that he had illicit intimacy with female co‑accused due to which the deceased had given beating to him and in consequence thereof the deceased was murdered by him at the, instance of the female co‑accused. The witness stated that they produced the accused at Police Headquarter Islamabad before Raja Saleem D.S.P. The witness stated that he did not know Raja Muhammad Saleem, D.S.P. the admitted that he was not having position of a notable person. He admitted his involvement in a currency case in the year 1982 and an accident case in 1986 which case was admitted to be pending in the Court of Ilaqa Magistrate, Rawalpindi lie denied the suggestion that he had made a false statement about recovery and extra‑judicial confession made by the accused under the influence of the local police. Muhammad Ejaz Khan P.W.7 testified in the terms in which P.W.6 had done. He admitted that he was involved in a bribery case but was acquitted in that case. He denied the suggestion that he had testified under the influence of police.
Masam Khan complainant appeared as P.W.8 and reconfirmed the statement contained in the F.I.R. He admitted in cross‑examination that it was correct that when Ghulam Ali P.W. and he were chasing the person who had jumped over the gate of the house of the deceased, Ghulam Ali P.W. had shouted and addressed that person as Rizwan and had asked him `Rizwan where are you going'. Ghulam Ali appeared as P.W.9 and had testified in terms of testimony of Masam Khan P.W. He admitted that he had suspected that person who was chased as `Rizwan' and that he had also called him `Rizwan' while he was running away.
8. Ahmad Hassan P.W.10 was entrusted with summons for service of Dr. Fazal‑ur‑Rehman, the Medical Officer. He stated that the said doctor could not be served as he had gone abroad. Rizwan‑ur‑Rehman appeared as P.W.11. He admitted that he was also arrested in the case as an accused person and that he remained in police custody. He denied the suggestion that he, Amina Taqdees and Muhammad Shafi Inspector had conspired to murder and his duty was to stay in the lawn of the house and to fire in the air and then to come inside the house from the fear side of the house after occurrence. Muhammad Tanvir P.W.12 was entrusted with summons for service of Muhammad Aslam S.I. but his service could not be effected as the said P.W. had gone abroad. Gulzar Khan P.W.13 had taken the parcel containing pistol to Forensic Science Laboratory, Lahore. Imran Shahzad P.W. 14 had prepared site plans Exh. PN and Exh.PN/1 on the direction of police and on the pointation of the P.Ws. Rashid Ahmad D.S.P., P.W.15 was Inspector S.H.O. on the day of occurrence and he verified the statements of P.Ws. which were recorded by Muhammad Aslam, S.I. He also took into possession last worn clothes of the deceased. He also received site plans from the Draftsman on 1‑6‑1986. He admitted in cross- examination that during investigation some persons had ‑disclosed that locks were broken, money was looted and one person was also seen running away from the spot at the time of occurrence. Akbar Ali Constable P.W.17 had taken the dead body for post‑mortem examination. Muhammad Arshad, A.S.I. P.W.18 had transmitted a sealed parcel containing a pistol to Forensic Science Laboratory Lahore. Raja Saleem Akhtar, D.S.P. C.I.A. P.W.19 had partly investigated the case. He stated that on 4‑11‑1987 Mst. Amina Taqdees appeared before him and made her statement which was recorded by him. He had arrested Rizwan‑ur‑Rehman, and Muhammad Yasin and later got them discharged. He stated that he obtained non‑bailable warrants of arrest of Mst. Amina Taqdees and that he arrested her on 25‑1‑1989 when her bail was cancelled by the High Court. The witness stated that on 2‑2‑1989 Mst. Amina Taqdees disclosed true facts and volunteered to become approver in the case when she appeared before the Deputy Commissioner, Islamabad who after taking necessary proceedings tendered her pardon. The witness further stated that after tendering pardon, the approver was produced before the Magistrate who recorded the statement Exh.PC. He stated that he was not present during the proceedings when the Deputy Commissioner tendered pardon to the approver of when her statement was recorded by the Magistrate. He had arrested Muhammad Yasin accused on 4‑2‑1989. He had also effected recovery of key Exh.P3, photostat copy of I.D. Card Exh.P4 and a pocket telephone diary Exh.P5 and took these into possession vide memo. Exh.P8. The witness also supervised the recovery Exh.P6 at the instance of Muhammad Yasin
9. After the prosecution had examined its witnesses, statement of accused under section 342, Cr.P.C. recorded. The material on record was put to him which he controverted. In reply to question No.17 he stated as under:
"I am innocent and falsely roped in this case. I remained in police custody in connection with this case for full fourteen days and thorough investigation was carried out during that period. Atta Muhammad deceased was an officer in O.G.D.C. I met him in connection with my service, as his brother Ahmad Khan who is shop. keeper at Rawalpindi had recommended for my service in O.G.D.C. I was never employed for taking or bringing back the children as I lived 15 miles away from the house of the deceased. I was involved in this case because Mst. Amina Taqdees had illicit relations with one Muhammad Shari Police Inspector, who in order to remove the deceased from his way with the connivance of Mst. Amina Taqdees got murdered the deceased. The police in order to save colleague and being influenced by the father of Mst. Amina Taqdees who was a commander in Navy made me scape‑goat. Muhammad Shat, Inspector was present at the spot when the police arrived on the day of occurrence for the first time and throughout the investigation Muhammad Shari remained associated and tried to save himself and Mst. Amina Taqdees. Originally, the police was put on a wrong track of dacoity so as the murder should remain untraced. The Investigating Agency was so much influenced by the parents of Mst. Amina Taqdees that her parents remained present with her during investigation. Mst. Amina Taqdees was arrested on 29‑1‑1989 and her statement before the Magistrate was recorded on 2‑2‑1989 and during this period, the alleged story was concocted after due deliberations. The…
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