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Petitioner: MUHAMMAD YAQOOB and 3 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Nawaz Abbasi, Mansoor Ahmed Title: MUHAMMAD YAQOOB and 3 others vs THE STATE Case No.: Criminal Appeal No,355/T of 2000 Date of Judgment:2001-12-10 Reported As: 2002 YLR 832 Result: Order accordingly
JUDGMENT
JUDGMENT ' MUHAMMAD NAWAZ ABBASI, J.---The appellants namely Muhammad Yaqoob aged 38/39 years, Haji Ghulam Rasool aged 57/58 years, Abdul Qayyum aged 48 years son of Manga Khan and Ahmad Hussain alias Nasir Mehmood son of Ghulam Hussain aged 25 years, all Rajput by caste were sent up to face trial for the charge under sections 324/109/302/34, P.P.C. Of committing Qalt- e-Amd of Muhammad Ishaq, Muhammad Jamil and Muhammad Sharif and for causing injuries to Muhammad Javed, in a case registered against them at Police Station Kallar Syedan, District Rawalpindi by the Special Court established under Anti-Terrorism Act, 1997 for Rawalpindi Division and Islamabad Capital Territory. The learned trial Judge having found the appellants guilty of the charge convicted and sentenced them as under:- Under Section 302(b)/34, P.P.C. (a) Imprisonment for life committing murder of Muhammad Ishaq with a fine of Rs,2,00,000 each payable to the legal heirs of the deceased in equal share under section 544-A, Cr.P.C.And in default of the payment of fine to undergo Rigorous Imprisonment for one year each. (b) Imprisonment for life for committing murder of Muhammad Jamil with a fme of Rs,2,00,000 each to be paid to the legal heirs of the deceased in equal share under section 544-A, Cr.P.C. And in default of the payment of fine to undergo Rigorous Imprisonment for one year each. (c) Imprisonment for life for committing murder of Muhammad Sharif with a fine of Rs,2,00,000 each to be paid to the legal heirs of the deceased in equal share under section 544-A, Cr.P.C. And in default of the payment of fine to undergo Rigorous imprisonment for one year each. Under section 324/34, P.P.C.
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' Imprisonment for 10 years with a fine of Rs,50,000 each payable to Muhammad Javed injured P.W. As compensation and in default of the payment of fine to undergo Rigorous Imprisonment for six months. Under section 337-A(I), P.P.C. ' Rigorous Imprisonment for two years for causing injuries to Muhammad Javed P.W. Under section 7 of Anti-Terrorism Act, 1997 ' Imprisonment for life with fine of Rs,1,00,000 each and in default of the payment of fine to undergo Rigorous Imprisonment for one year each. ' The sentences awarded to the appellants under section 302/34, P.P.C. Read with section 7 of Anti- Terrorism Act, 1997 were directed to run concurrently, whereas the sentences awarded to the appellants under sections 324/34 P.P.C. And 337-A(I), P.P.C. Were ordered to run consecutively. The appellants were refused the benefit of section 382-13, C.P.C. On the ground that they acted desperately at a public place. 2. The learned trial Court transmitted the record of the case to this Court as per requirement of section 25 of Anti-Terrorism Act, 1997, whereas the appellants have challenged their conviction and sentence through Criminal Appeal No,355-T of 2000. 3. The brief acts in the background as contained in the statement Exh.P.A of Jamil Ahmad (P.W.10) on the basis of which, the case was registered at Police Station Kallar Syedan, District Rawalpindi vide First Information Report Exh.P.A-1 on the day of occurrence i,e, 27-3-1999 are to the following effect:- "That Muhammad Yaqoob son of Manga Khan, resident of Dhoke Thalia, village Samoote, Tehsil Kahuta, District Rawalpindi due to a dispute over a passage with the complainant and his co- villagers, made an attempt to abduct Khalil Ahmad brother of the complainant by putting him in the vehicle with a view to commit his murder and the said Khalil Ahmad was got released from the clutches of Muhammad Yagoob by the persons present at the place of occurrence. The complainant got a case registered under sections 365/511, P.P.C. Against Muhammad Yaqoob at Police Station Kallar Syedan and the investigation of the same was entrusted by the Deputy Inspector General of Police to Muhammad Afzal, Deputy Superintendent of Police, Gujar Khan. The Investigating Officer with a view to conduct investigation at the spot visited Village Samote. The parties appeared before Deputy Superintendent of Police and in addition to Manzoor Hussain Lambardar and Haji Suleman, being the eyewitnesses of the occurrence. Muhammad Ishaq son of Haji Mushtaq Hussain, Muhammad Jamil son of Tikka Khan and Muhammad Javed son of Sultan Ali while appearing before the Deputy Superintendent of Police claimed that they were also present at the spot at the time of abduction of Khalil Ahmad and made statement in support of the complainant in the said case against Muhanunk Yagoob, who felt annoyed. On departure of Deputy Superintendent of Police, the complainant in company of Muhammad Ishaq, Muhammad Jamil, Muhammad Javed, Zia-ul-Haq, Muhammad Ishtiaq son of Muhammad Akhtar proceeded towards Samoote Bazar and when they reached in front of building of United Bank Limited at 10-30 a.m. Suddenly Muhammad Yaqoob, Abdul Qayyum and Ghulam Rasool sons of Manga Khan armed with klashnikov appeared there in a red coloured Pajero bearing No,6401/DIR, which was being driven by Nasir Mehmood. Abdul Qayyum having raised Lalkara that they would be taught lesson for making statement against Muhammad Yagoob before the D.S.P. Opened firing with klashnikov while sitting in Pajero and simultaneously Muhammad Yagoob and Ghulam Rasool, who were also armed with klashnikov started firing from Pajero at Jamil Ahmad complainant, Zia-ul- Haq and Ishtiaq Ahmad. The complainant and his above-named two companions laid down on the ground, whereas Muhammad Ishaq, Jamil, Muhammad Javed and Muhammad Sharif a paserby were hit. The accused while raising Lalkaras left the place of occurrence in the Pajero
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towards Kallian Sallian. Muhammad Ishaq, Jamil and Muhammad Sharif succumbed to the injuries at the spot". 4. Muhammad Afzal Inspector (P.W.16) the then Station House Officer of Police Station on reaching the place of occurrence inspected the spot and prepared inquest reports Exh.P.O, Exh.P. P. And Exh P.Q, of three deceased. On preparing the injury statement (Exh P.R) of Muhammad Javed, he sent the dead bodies of the three deceased for post-mortem examination. The Inspector had secured blood-stained earth separately from the places of dead body of each deceased and collected ten crime empties from the place of occurrence in the separate sealed parcels. The Car bearing No,4886/MNN with 7-MM rifle belonging to the accused and Pajero bearing No,DIR/6401, which was used by the accused in the occurrence, were taken into possession. The last worn clothes of the deceased were delivered to the Inspector after the postmortem examination. The Inspector having got prepared the site plans of the place of occurrence made it part of the record. Abdul Qayyum and Muhammad Yagoob on arrest got recovered klashnikov with magazine and live cartridges on 254-1999 and during the course of investigation, he having found Ghulam Rasoon accused innocent placed him in Column No,2 of the Challan. 5. Dr.Sajjad Hussain Raja (P.W.13) has conducted post-mortem examination on the dead bodies of the three deceased. The following injuries were traced by him on the dead body of Muhammad Sharif:- (i) A fire-arm lacerated wound, 2-x 2 c.m. On inner aspect of right knee joint. This was entry wound. (ii) A torn,wound 3 x 4 c.m. On outer aspect of right knee joint, the injury was in line with entry wound, fracture of bone was also present. (iii) A fire-arm injury wound, 2 x 2 c.m. On left side of chest in the mid-axially line, 15 c.m. From left axillary, this was entry wound. (iv) A fire-arm would 2-x 2-c.m., on right lumber region about 20 c.m. From inferior border of right scapula, this was exit wound. There was free bleeding from the exit wound, the course of bullet was such that the bullet, after passing through thorax walls, punctured the lower left segment of left lung passing through the hepatic mass, passed from back of the chest, there was massive bleeding in the chest and the abdominal cavity. ' In the opinion of Doctor, the injuries were caused with fire-arm, which was sufficient to cause death in ordinary course of nature. 6. The same Doctor having conducted post-mortem examination on the dead body of Muhammad Jamil traced the following injuries:- (i) A large lacerated wound 10 c.m. x 6 c.m. That started from upper part of middle of fore-head up to parietal region. The brain matter was macerated torn and found outside the criminal cavity, the frontal parietal, occipital; bone was fractured, portion of bones were; torn and missing This injury was caused by fire-arm. ' In the opinion of Doctor, the injury was sufficient to cause death in ordinary course of nature and was ante-mortem. 7. On the same day, he conducted postmortem examination of Muhammad Ishaq and found following injuries on his person:- (i) A fire-arm lacerated wound 2 x 2 c.m. On right side of chest, in right mide axillary line about 10 c.m. From axilla, this was entry wound. (ii) A fire-arm wound 2 x 2 c.m. In left axillary area, close to anterior border of left axilla. (iii) A fire-arm lacerated wound 2 x 2 c.m. On outer aspect of left arm, left humerus was fractured, and this was entry wound. (iv) A fire-arm wound 2 x 2 c.m. On inner aspect of left arm, this was exit wound. (v) A fire-arm lacerated wound on middle of anterior belly of stenomastriod. (vi) A lacerated wound 2 x 2 c.m. On posterior belly of stenomastroid.
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' In the opinion of Doctor, the death was result of injuries Nos.1 and 2, which were sufficient to cause death in ordinary course of nature. 8. Dr.Zaffar Mehmood, DMS (P.W.15) medically examined Muhammad Javed and found the following injuries on his person:- (i) A lacerated (grazed) wound of firearm which is spindle shaped situated on anterior aspect of upper part of right for-earm 2 c.m. From right elbow joint measuring 11 c.m. x 5 c.m. Blackening present. (ii) A lacerated wound of entry of firearm 3 c.m. x 1.5 c.m. Situated on the right side of abdomen, 4 c.m. From amblicus 8 c.m. From right anterior superior iliac spine, blackening was present. (iii) A lacerated wound of exit of firearm, 1 c.m. x 0.5 c.m. On the right lumber region, 5 c.m. Lateral to injury No,2. 9. The charge against the appellants was framed firstly under section 324/34, P.P.0 for launching murderous assault up to Muhammad Javed, secondly under section 302/34, P.P.0 for committing intentional murder of Muhammad Ishaq, Jamil and Muhammad Sharif thirdly against Muhammad Khalid co-accused since dead under sections 302/34, P.P.0 and 324/34, P.P.0 read with section 120(b) P.P.0 and fourthly for committing an offence by the appellants under section 7 of Anti- Terrorism Act, 1997.. 10 The prosecution in addition to Muhammad Afzal Investigating Officer (P.W.16) and Doctors namely Sajjad Hussain Raja (P.W.13) and Zaffar Mehmood (P.W.15) produced 144 other witnesses including the eye-witnesses of the occurrence. Abdul Hamid, Assistant Sub-Inspector (P.W.1) on receipt of complaint Exh.P.A recorded formal First Information Report Exh.P.A/1, at Police Station. Ghulam Mustafa Head Constable (P.W.2) while performing the duty of Moharrar, Police Station Kallar Syedan kept sealed parcels containing blood-stained earth and crime empties in Mal Khana and later on 11-4-1999 handed over these parcels to Zulqarnain Constable for onwards transmission to the Office of Chemical Examiner and Forensic Science Laboratory at Lahore. Muhammad Saeed, Assistant Sub-Inspector {P. W.3) escorted the dead bodies to the mortuary in Civil Hospital, Kahuta for post-mortem examination and delivered the last worn clothes of the deceased and post-mortem reports to the Investigating Officer, which were taken by him into possession vide memo. Exh.P.B. Faiz Ahmad, Head Constable (P.W.4) was handed over two parcels containing klashnikov for onwards transmission to the office of Forensic Science Laboratory at Lahore which were delivered by him on 3-5-1999 in the respective offices: Muhammad Hanif (P.W.5), Muhammad Yaqoob (P.W.6) and Liaquat Hussain (P.W.7) identified the dead bodies of Muhammad Sharif, Muhammad Ishtiaq and Muhammad Jamil at Tehsil Headquarter Hospital, Kahuta. Shaukat Hussain (P.W.8) witnessed the recovery of klashnikov P.11 along with magazine P.12 and ten live cartridges P.13/1-10 at the instance of Muhammad Yaqoob from his house and similarly Abdul Qayyum led to the recovery of klashnikov P.14 alongwith magazine P.15 along with ten live cartridges P.16/1-10 from the house of Muhammad Yaqoob. The weapons were taken into possession; vide memo. Exh.P.0 and "Exh.P.D respectively. Qamar-ud-Din Draftsman (P.W.9) on the direction of Police and pointation of the witnesses having taken rough notes of the place of occurrence prepared site plans Exli. P E and Exh . P. E/1.Jamil Ahmad (P.W.10) complainant of the case in affirmation of his statement Exh.P.A stated that Muhammad Yaqoob made an attempt to abduct his brother Khalil Ahmad in a vehicle with an intention to commit his murder, but said Khalil Ahmad with the intervention of people in the Bazar was not released. The matter was reported to the Police and a criminal case was registered against Muhammad Yaqoob at Police Station Kallar Syedan, District Rawalpindi. During the course of investigation of the said case, Deputy Superintendent of Police, Gujar Khan. Being Investigating Officer; of the case visited the place of occurrence on 27-3-1999. The complainant as well as the accused party with their witnesses appeared before Deputy Superintendent of Police, who carried investigation at the spot. On the
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departure of Deputy Superintendent of Police, the complainant along with Muhammad Ishtiaq, Muhammad Jamil son of Tikka. Khan, Muhammad Javed, Zia-ul-Haq and Muhammad Ishaq while were proceeding towards their houses together on Biwal Road and when reached opposite the building of United Bank Limited at 10-30 a.m., the accused namely Abdul Qayyum, Muhammad Yaqoob and Ghulam Rasool armed with klashnikoves appeared at the scene; in a red colour Pajero No,6401/DIR, being driven by Ahmad Hassan alias. Nasir Mehmood and while raising Lalakaras opened firing, as a result of which, Muhammad Ishfaq, Muhammad Jamil and Muhammad Sharif were hit and succumbed to the injuries at the spot, whereas Jamil Ahmad complainant, Ziaul-Haq and Muhammad Ishtiaq laid down on the ground and saved their lives. Muhammad Javed (P.W.11) an injured eye-witness and Zia-ul-Haq (P.W.12) while narrating the story as given in the First Information Report in detail corroborated the statement of Muhammad Jamil (P.W.10) on each material point. Lal Hussain .Sub-Inspector (P.W.14) witnessed the recovery of Pajero bearing No,6401/DIR, P.18 with a Suzuki car bearing No,4886/MNN P.19 parked near the house of Ghulam Rasool, which were taken into possession with the articles lying in the same by the Station House Officer vide separate memos. Exh.P. L and Exh.P. M respectively. The prosecution gave up Ashfaq Ahmad, Muhammad Suleman, Tanvir Hussain, Shahid Mehmood, Jehangir Akhtar and Tahir Mehmood being un-necessary Sikandar Hayat was examined as (C.W.1). The report of Chemical Examiner Exh.P.S, the Forensic Science Laboratory Exh.P.T and that of Serologist Exh.P.0 containing positive results were placed on record. .11. The accused in their statement under section 342, Cr.P.0 having denied the charge pleaded their innocence. Muhammad Yaqoob in answer to Question No,8 has made the following reply:- "As regards the motive, my reply is that a false case was got registered on the basis of a fabricated and cooked up story. It was done maliciously in order to eliminate us politically and to teach us a lesson for supporting co-accused Ch. Muhammad Khalid. The falsehood of the version got uncovered during investigation by the superior officers of the Police and contrary to it, the complainant party of that case was found responsible for making assault on co-accused Muhammad Yaqoob. The idea regarding the conclusion of investigation got floated at the value of investigation of the said case by the Deputy Superintendent of Police in village Samoote and this agnated the sentiments of the complainant party, who out of their own, rash and negligent act did away with the lives of victims. The motive recoils on the complainant party. ' Regarding the main case, my reply is that on the day of occurrence myself and co-accused had assembled in village Samoote, on being summoned by the Deputy Superintendent of Police, Gujar Khan, who was entrusted investigation of the case under section 365 P.P.C., Police Station Kallar Syedan, registered against me at the instance of Tahir Mehmood of the complainant party. The Deputy Superintendent of Police personally conducted the investigation. During the course of investigation, firstly version of the complainant party in that case was recorded by the Deputy Superintendent of Police and then they were relieved from the place of inquiry. Thereafter, in their absence, our version was taken up and the witnesses examined by the Deputy Superintendent of Police, who alongwith rest of the Police staff of local Police Station went away. Subedar Amanat resident of village Samoote remained present at the spot during whole court se of investigation conducted by the Deputy Superintendent of Police. He, after departure of the , Deputy Superintendent of Police, invited myself, co-accused Abdul Qayyum, Ghulam Rasool and Ch.Muhammad Khalid to his house situated at a distance of 400 yards from the place of inquiry to the cup of tea, where he had already made an arrangement to this effect. We alongwith other participants of the investigation went to his house. We were busy in taking tea when at about 10-30 a.m., we heard reports of firing emanating from the side of United Bank Limited, Samoote. In the meanwhile, it was heard that some unknown two assailants, who arrived at the spot in a vehicle No,5505 indulged in firing which resulted in the death of Muhammad Jamil, Muhammad Ishfaq,
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Muhammad Sharif and also causing injuries to Muhammad Javed. The complainant party with a view to wreak their vengeance, threw the net wider and falsely implicated me and the co-accused. Nasir.Co-accused was not present there and he was also named falsely in the case. ' The Investigating Officer with a view to show favour to Shaukat Bhatti, the then sitting MPA of ruling party Muslim League and acting under his influence planted false recoveries upon me and co- accused Abdul Qayyum. However, the Investigating Officer had rightly recorded our first version and concluded innocence of co-accused Ghulam Rasool and also that of mine Abdul Qayyum, however, the Senior Police Officer of the rank of the Superintendent of Police i,e, Sikandar Hayat of Crimes Branch, Rawalpindi Range, when conducted the investigation in the case, on the direction of Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi opined innocence of Ghulam Rasool, Abdul Qayyum and myself, which was based on solid and concrete evidence. Co-accused Nasir was challaned on the same tainted evidence though his implication was also malicious and he is also innocent." 12. Similarly Abdul Qayyum and Ghulam Rasool in answer to Question No,7 made similar reply. Ahmad Hussain accused; in answer to Question No,7 has made the following answer:- "Co-accused namely Ghulam Rasool, Muhammad Yaqoob and Abdul Qayyum are the brothers of my father and the complainant party due to enmity, political rivalry, implicated me falsely and set out the net wider. ' I was not present at the place of occurrence", ' Abdul Qayyum and Ahmad Hassan also made their statements under section 340(2), Cr.P.0 in their defence. 13. The learned counsel for the appellants has raised the following contentions in support of the appeal:- (a) That it is an admitted fact that the parties were carrying political rivalry being belonged to different political parties and, therefore, were opponents to each other. (b). That the investigation of the case under section 365 P.P.C. Resulted in favour of Muhammad Yaqoob, therefore, the accused would have no grievance against the complainant party. (c) That Haji Manzoor and Muhammad Suleman the eye-witnesses in the case against Muhammad Yaqoob appeared before the Deputy Superintendent of Police and made statements against Muhammad Yaqoob, therefore, the accused would be revengeful against. Them and not the complainant and the deceased and thus the motive part of the prosecution story was not established beyond doubt. (d) That Jamil Ahmad (complainant) is real brother of Khalil Ahmad alleged abductee, whereas Muhammad Javed the injured witness and Zia-ul-Haq being party-men of, Muhammad Javed were not independent witnesses and the ocular account of these interested persons was in conflict to the medical evidence and there was no independent evidence in corroboration to the ocular account. ((e) That notwithstanding the matching of the crime empties recovered from the spot with klashnikov recovered from Muhammad Yaqoob and Abdul Qayyum, the recovery of klashnikov from above-named accused was not established beyond doubt as no person of the locality was associated in the recovery proceedings and the non-compliance of mandatory provision of section 103, Cr.P.0 would exclude such evidence of recovery from consideration. (f) That the crime empties recovered from the place of occurrence were handed over to Zulqarnain, Constable for onward delivery in the office of Forensic Science Laboratory at Lahore but said Zuilqarnain was not examined as witness and therefore, there was no proof of the delivery of empties in the said Office, and in consequence thereto the positive result given by the Fire-arm Expert with regard to the matching of empties with the weapon recovered from the accused would
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be of consequence and value and, that with the exclusion of evidence of recovery, the Uncorroborative testimony of interested eye-witnesses was not reliable. (g) That as per prosecution story the accused fired at the deceased from a distance of 15/20 feet whereas as per medical evidence the blackening and charring was found around the injuries, which would show that firing was made from the close range and thus this contradiction would bring the truthfulness of the prosecution 'case under serious doubt. (h) The learned counsel while pointing out the minor discrepancies and contradictions in the statements of eye-witnesses has contended that the eye-witnesses were not independent, therefore, it would not be safe to place reliance on such tainted evidence in cases of capital punishment. The learned counsel added that Zia-ul-Haq was disbelieved by the learned trial Judge and the remaining two witnesses namely Jamil Ahmad and Muhammad Javed were partisan, therefore, their evidence was bound to be excluded from consideration in absence of any corroborative evidence. The learned counsel in net-shell contended that the prosecution failed to establish the charge against the appellants beyond reasonable doubt and they were wrongly convicted. (i) That the defence version of the occurrence that at the relevant time accused were present in the house of Haji Amanat Khan, who had arranged tea for them when complainant party being revengeful against Muhammad Yaqoob committed aggression to kill him, as a result of which, the deceased lost their lives and P.Ws. Sustained the injuries was more plausible in the given facts and while putting the defence version in juxta position to the prosecution case, the defence version would conveniently appeal to mind. 14. The learned counsel representing the complainant, on the other hand has contended that the material facts relating to the time and place of occurrence are not denied and that in the light of answers made by the eyewitnesses in reply to questions put to them by defence in cross- examination, it was evident on record that Muhammad Ishtiaq and Muhammad Jamil son of Tikka Khan appeared before the Deputy Superintendent of Police against Muhammad Yaqoob. The learned counsel in support of the above contention has referred certain portion of statement of P.W. In cross-examination. The learned counsel contended as under :- (i) That the witnesses were neither related to the complainant and the deceased nor they were inimical towards the accused and were not partisan witnesses to suggest that their testimony would require strong corroboration. (ii) That it was just by chance that Haji Manzoor and Muhammad Suleman, the witnesses of the abduction case escaped from the place of occurrence and, therefore, the contention that the motive would be against Haji Manzoor and Muhammad Suleman and not the deceased was without any…
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