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Petitioner: MUZAFFAR ALI VS Respondent: THE STATE
P L D 1964 (W
P L D 1964 (W. P.) Lahore 32
Before Nazeer Ahmad Mahmood and Mushtaq Hussain, JJ
MUZAFFAR ALI AND OTHERS‑Convict‑Appellants
Versus
THE STATE‑Respondent
Criminal Appeal No. 262 of 1962, decided on 21st June 1963.
(a) Witness‑Prosecution witnesses examined by police at instance and after arrest of accused‑ Winensses, held, adversely disposed to accused.
(b) Witness‑Names not figuring in F. I. R. but subsequently mentioned in supplementary statement‑Testimony, held, suspicious and excluded from consideration.
(e) Evidence Act (I of 1872), S. 133‑Approver's statement-- Corroboration in material particulars necessary‑Criminal Procedure Code (V of 1898), S. 337.
Nazir Ahmad Khan for Appellants 1 and 3.
A. K. Brohi for Appellants.
R. A. Jeremy and Mazhar‑ul‑Haq for the State.
Dates of hearing : 16th to 29th January 1963.
JUDGMENT
NAZEER AHMAD MAHMOOD, J.‑Muzaffar Ali, aged about 55 years, Muhammad Akram, aged about 24 years, Akhtar Hayat, aged about 19 years, Sikandar Hayat, aged about 28 years, Ali Ranjha, aged about 30 years, Shanu, aged about 25 years, and Shamsher Ahmad, aged about 33 years, have come up in appeal against the judgment, dated the 12th of March 1962, of Mr. Muhammad Ayub Khan, Additional Sessions Judge, Lahore. The learned Additional Sessions Judge convicted Muzaffar Ali, Muhammad Akram and Sikandar Hayat appel lants under section 120‑B, Pakistan Penal Code, for criminal conspiracy to murder Mst. Munira Sultana deceased and Muhammad Aslam (P. W. 24), under sections 364/149, 148 and 395/149, P. P. C. and sentenced them each to transportation for life for an offence under section 120‑B, to ten years' rigorous imprisonment and a fine of Rs. 2,000 or two years' rigorous imprisonment in default of payment of fine for an offence under section 364/149, to two years' rigorous imprisonment for an offence under section 148 and to five years' rigorous imprisonment and to a fine of Rs 2,000 or two year's rigorous imprisonment in default of payment of fine for an offence under section 395/149, P. P. C. He further directed that the sentences, except the sentences of fine, should run concurrently. The learned Additional Sessions Judge also convicted Akhtar Hayat appellant under section 120‑B for criminal conspiracy to murder Mst. Munira Sultana deceased and Muhammad Aslam P. W. under sections 364/149, 148 and 395 /149, P. P. C. and, in view of his young age, sentenced him to five years' rigorous imprisonment under section 120‑B, to a term of five years' rigorous imprisonment and a fine of Rs. 500 or six months' further rigorous imprisonment in default of payment of fine for his offence under section 364/149, to a term of one year's rigorous imprisonment for his offence under section 148 and to two years' rigorous imprisonment and a fine of Rs. 500 or further six months' rigorous imprisonment in default of payment of fine for his offence under section 395/149, P. P. C. It is, however, not mentioned in the order of the learned Additional Sessions Judge as to whether the sentences of Akhtar Hayat appellant would run concurrently or consecutively. The learned Additional Sessions Judge also convicted Ali Ranjha appellant under section 120‑B for criminal conspiracy to murder Mst. Munira Sultana deceased and Muhammad Aslam P. W. under section 302/149, P. P. C. and sentenced him to transportation for life on either count, with the further direction that the two sentences should run concurrently. Shanu and Shamsher Ahmad appellants were convicted by the learned Additional Sessions Judge for offence under sections 302/34 and 201/34, P. P. C. and sentenced to death for the offence under section 302/34 and to seven years' rigorous imprisonment, including solitary confine ment for three months, for the offence under section 201/34, P. P. C. The learned Additional Sessions Judge also directed that the sentence of Shanu under section 201/34, P. P. C. should come into operation only if his death sentence was not confirmed by this Court. Shamsher Ahmad appellant was further convicted under section 120‑B for criminal conspiracy to murder Mst. Munira Sultana deceased and Muhammad Aslam P. W. under sections 364/149, 148, 395/149 and 404, P. P. C. and sentenced to transportation for life for an offence under section 120‑B, to ten years' rigorous imprisonment and a fine of Rs. 2,000 or two years, further rigorous imprisonment in default of payment of fine for an offence under section 364/149, P. P. C. to two years' rigorous imprisonment for an offence under section 148, P. P. C., to five years' rigorous imprisonment and a fine of Rs. 2,000 or two years' further rigorous imprisonment in default of payment of fine for an offence under section 395/149, P. P. C. and to two years' rigorous imprisonment for an offence under section 404, P. P. C. The learned Additional Sessions Judge further directed that the sentences, other than one under section 302/34, P. P. G should run concurrently and should be operative only if the sentence of death was not confirmed by the High Court. The case is also before us under section 374, Criminal Procedure Code, for confirmation of the death sentences of Shanu and Shamsher Ahmad appellants. Muhammad Aslam P. W. has also filed a revision petition under section 439, Criminal Procedure Code, praying for the enhancement of the sentences of the appellants, other than Akhtar Hayat, to that of death for the Offences, for which they have been sentenced to transportation for life and for the setting aside of the order of acquittal of Akhtar Hayat appellant for his offence under section 302/149, P. p. C. or for enhancement of his sentences to the maximum periods for the offences of which he had been convicted. This judgment will dispose of the aforesaid appeal, the reference and the revision petition.
2. The prosecution case is that Mst. Munira Sultana deceased became an orphan on the death of her father, Mian Sultan Ali Ranjha, on the 31st of December 1959. She was related to some of the appellants and Muhammad Aslam P. W. in the following manner. Her father, Mian Sultan Ali Ranjha, was a brother of Muzaffar Ali appellant. Muhammad Akram appellant, who is a brother of Muhammad Aslam P. W. (both being the sons of Mian Sultan Ahmad Ranjha) is her first cousin, their mother being a sister of Mian Sultan Ali Ranjha and Muzaffar Ali appellant. Sikandar Hayat appellant is a brother of Akhtar Hayat appellant, both being the sons of Mian Fazal Elahi Ranjha, a brother of Mian Sultan Ahmad Ranjha. Sikandar Hayat appellant is also a son‑in‑law of Mian Sultan Ahmad Ranjha and is thus a brother‑in‑law of Muhammad Akram appellant and Muhammad Aslam P. W. Shamsher Ahmad appellant, who is the son of Mian Nazir Ahmad Ranjha, a first cousin of Mian Sultan Ahmad Ranjha, is married to a sister of Sikandar Hayat and Akhtar Hayat appellants. Muhammad Akram appellant is also married to a sister of Sikandar Hayat and Akhtar Hayat appellants. Muhammad Akram and Shamsher Ahmad appellants are, therefore, hamzulfs of each other. While Muhammad Aslam P. W. and appellants other than Ali Ranjha and Shanu lived in village Wan Miana in the area of Police Station Kot Momin, Tehsil Bhalwal, District Sargodha. Muzaffar Ali appellant belongs to Bucha Kalan and lives in Kot Sultan, a place about two miles from Wan Miana. Ali Ranjha and Shanu appellants lived at Daulatpur, a village about six or seven miles from Wan Miana.
3. Mian Sultan Ali Ranjha, the father of Mst. Munira Sultana, left behind him about twenty‑two squares of land in different villages and districts. The bulk of his land, however, was in District Sargodha. Mian Sultan Ali Ranjha had also a bungalow at 25‑Empress Road, Lahore, where he used to live with his daughter, Mst. Munira Sultana, who was getting her education as a student of the B. A. class in the Lahore College for Women at the time of the death of her father. She passed her B. A. Examination in the Second Division in 1960 after his death. The other appellants, namely, Ali Ranjha and Shanu are not related to Mst. Munira Sultana or any of the other appellants. Ali Ranjha appellant is a friend of Muzaffar Ali, Sikandar Hayat, Akhtar Hayat and Muhammad Akram appellants, being on visiting terms with them. He used to live in Dera Mubaraka in the area of village Daulatpur, Dera Mubaraka being at a distance of about three miles from Daulatpur, which is about two or three miles from Kot Momin. Shanu appellant has been a private servant of Ali Ranjha appellant and used to live near Dera Mubaraka in another dera belonging to Karam Elahi, a paternal uncle of Ali Ranjha appellant. The other person in conspiracy with whom the murder of Mst. Munira Sultana is alleged to have been committed after her abduction, is Ali Mochi, the approver (P. W. 2), who is a cobbler by trade. He used to reside in the dera of Sikandar Hayat appellant, known as Dera Chattianwala, in the area of Wan Miana. About five or six months berore the present occurrence, he (Ali Mochi approver) shifted to the dera of Ali Ranjha at the suggestion of Shamsher Ahmad and Sikandar Hayat appellants.
4. Mst. Munira Sultana was in Lahore when her father died. She, therefore, left her residence, 25‑Empress Road, Lahore, for Kot Sultan, where her father actually resided and had died, on learning of the death of her father. Muzaffar Ali appellant, her paternal uncle, was not in favour of her pursuing her studies further and he put restrictions on her movements. His idea was to marry her to his ten or eleven years old son, Ikram. Mst. Munira Sultana was about twenty or twenty‑one years of age and had already committed herself to a marriage with Muhammad Aslam P. W., whom she used to meet at her father's residence at 25‑Empress Road, Lahore, where Muhammad Aslam P. W. used to come occasionally to pay a visit to her father. Muzaffar Ali appellant, however, allowed Mst. Munira Sultana to return to Lahore for taking her B. A. Examination in March 1960. Her maternal grandmother accompanied her. Muzaffar Ali appellant also used to visit her during her stay in Lahore. After she had finished her examination, Mst. Munira Sultana was taken away to Kot Sultan by Muzaffar Ali appellant. Muhammad Aslam P. W. could not openly visit her there, but remained in corres pondence with her. In her letters to him, Mst. Munira Sultana used to refer to the restrictions that had been placed on her movements and the apprehensions that she had at the hands of Muzaffar Ali appellant. The result of this secret correspondence was that a programme was chalked out by Mst. Munira Sultana deceased and Muhammad Aslam P. W., pursuant to which Muhammad Aslam secretly brought Mst. Munira Sultana to Lahore by a car on the 2nd of September 1960. On their arrival at Lahore, the lovers, who had contemplated a marriage, put up in Zonobi Hotel, Gulberg. Rahim Bakhsh (P. W. 31) and Karam Ali (P. W. 32), who were the moeens of their village, had been sent up in advance to Mian Sultan Ali Ranjha's residence, 25‑Empress Road, Lahore, where Gaura and Saru, servants of Mian Sultan Ali Ranjha, used to live more or less permanently. On the 3rd of September 1960, Muhammad Aslam P. W. came from Zonobi Hotel to 25‑Empress Road, Lahore, and asked Gaura and Saru to bring a nikah khawan to Zonobi Hotel for solemnising his nikah with Mst. Munira Sultana deceased. Later in the day Gaura and Saru, accompanied by Jalal (not produced), came to him in the Zonobi Hotel and informed him that the Maulvi was not willing to come to the hotel and that he rather wanted Muhammad Aslam and Mst. Munira Sultana to come to Jamia Hanafia on the Temple Road. Consequently Munira Sultana and Muhammad Aslam, accompanied by Gaura, Saru and Jalal, came to Jamia Hanafia on‑the Temple Road and contacted Abul Hasnain Qasmi (P. W. 13) and requested him to solemnise their nikah. By way of precaution, Maulvi Abul Hasnain Qasmi obtained an affidavit (Exh. P. Q/1) from Mst. Munira Sultana to the effect that her father was dead and she had not been married previously. This affidavit was attested by Saru and Jalal. Thereafter, Maulvi Abul Hasnain Qasmi solemnised the nikah of Muhammad Aslam P. W. and Mst. Munira Sultana deceased and the nikahnama Exh. P. B. was drawn up, which was signed by Muhammad Aslam P. W. and Mst. Munira Sultana deceased and attested by Gaura, Saru and Jalal. On the same day, viz., the 3rd of September 1960, Muhammad Aslam P. W. and Mst. Munira Sultana deceased, accompanied by Rahim Bakhsh and Karam Ali P. Ws., left for Karachi by a passenger train which reached Karachi early in the morning on the 5th of September 1960. They took up their lodgings in Room No. 44 of Taj Hotel. Rahim Baksh and Karam Ali P. Ws. put up in a shop near the hotel. The couple remained in Karachi as the occupants of Room No. 44 of Taj Hotel till the 18th of September 1960. During this period, Muhammad Akram appellant met them at Karachi five or six days after they had arrived there. He stayed in Khyber Hotel. The couple used to go round sight‑seeing in his company and even had themselves photographed along with him by Shaukat Mahmood (P. W. 5): a photographer of Karachi. The aforesaid photographer took other photographs of the couple. In one of them, Mst. Munira Sultana and Muhammad Aslam both figure and for the other only Mst. Munira Sultana posed. The photograph of the married couple also appeared in the Mirror magazine for the month of November 1960.
5. During their stay at Karachi, Muhammad Aslam P. W. made a present of two gold balis Exh. P. 5./1‑2, costing Rs 185 and a jhumar costing about Rs. 375, to Mst. Munira Sultana after purchasing them from Jamil Ahmad (P. W. 29), a jeweller. Muhammad Akram appellant told Muhammad Aslam P. W. at Karachi that since he had married Mst. Munira Sultana against the wishes of Muzaffar Ali appellant, the latter had resented this union very much and suggested to Muhammad Aslam P. W. that the couple should accompany him to Lahore so that Muhammad Akram appellant could effectually mediate to bring about a reconciliation between Muzaffar Ali appellant and the couple. Acting on Muhammad Akram appellant's advice, the couple accompanied by him left Karachi by Khyber Mail on the 18th of September 1960, and reached Lahore on the 19th of September 1960. Gaura, who had accompanied Muhammad Akram appellant to Karachi, and Rahim Bakhsh and Karam Ali P. Ws. also came back to Lahore. On their return from Karachi, the couple put up in Khayaban Hotel. They contacted Dr. Ghulam Yasin (P. W. 25) and had a bungalow in Scheme No. III, Gulberg, Lahore, on rent from him. The formal rent deed was executed between the parties on the 23rd of September 1960, although they had occupied the bungalow one or two days earlier. Rahim Bakhsh and Karam Ali P. Ws., their servants, also started living with them in this bungalow. Muhammad Akram appellant, who had approved the rented premises, left Lahore, ostensibly for Sargodha, on the 21st or 22nd of September 1960, saying that he would meet Muzaffar Ali appellant and would inform Muhammad Aslam P. W. of the result of his talk with him (Muzaffar Ali appellant).
6. On the 29th of September 1960, Muhammad Akram appellant came to the bungalow occupied by Muhammad Aslam and Mst. Munira Sultana at about 10 p. m. Muhammad Aslam and Mst. Munira Sultana were at home at that time. Rahim Bakhsh and Karam Ali P. Ws. were also present outside the bungalow. Muhammad Akram appellant told Muhammad. Aslam that Muzaffar Ali, Akhtar Hayat, Sikandar Hayat and Shamsher Ahmad appellants had also come with him and were present outside the bungalow and suggested to him to come out of the bungalow and ask the aforesaid guest to come in. Muhammad Aslam took up his licensed revolver, which was loaded, and accompanied Muhammad Akram appellant. Outside the bung alow, he found a taxi‑cab and a jeep No. PBU‑600 belonging to Sikandar Hayat appellant parked on the kacha road, which is about a furlong from the pacca road. Akhtar Hayat and Shamsher Ahmad appellants were standing near the taxi‑cab, while Muzaffar Ali and Sikandar Hayat were standing near the jeep, which stood behind the taxi‑cab. As Muhammad Aslam P. W. neared Shamsher Ahmad appellant, the latter advanced towards him and made a gesture as if he wanted to embrace him and put his hand round the waist of Muhammad Aslam P. W. and asked him to take a seat in the taxi‑cab. When Muhammad Aslam P. W. expressed a desire to meet Muzaffar Ali and Sikandar Hayat appellants, Shamsher Ahmad told him that they would be coming along into the taxicab. When Muhammad Aslam P. W. stepped into the back seat, Akhtar Hayat took his seat on his right side and Shamsher Ahmed sat on his left side. The latter relieved Muhammad Aslam P. W. of his revolver and threatened him, saying that he would be shot dead if he made a move. Muzaffar Ali appellant, who had by that time come near the taxi‑cab, inquired of Shamsher Ahmad appellant if Muhammad Aslam was well under control and Shamsher Ahmad replied in the affirmative, adding further that it was time that Mst. Munira Sultana was, also brought. out. Thereupon, Muzaffar Ali, Muhammad Akram and Sikandar Hayat went inside the bungalow and forcibly brought Mst. Munira Sultana out and hustled her into the jeep, where Muzaffar Ali, Muhammad Akram and Sikandar Hayat also took their seats. The jeep was the first to make a move. The taxi cab followed the jeep. At that time, Mst. Munira Sultana was wearing a gharara of Kimkhab, thirty gold churis Exh. P.‑4/1‑30, two gold earrings (balis) Exh. P. 5/1‑2, gold rings Exh. P. 7/1‑3 a gold wrist‑watch with a gold chain Exh. P. 6, a Parker, fountain pen Exh. P. 3 with the words "Munira Aslam B. A." engraved on it and a gold jhumar on her forehead. The pen Exh. P. 3 was present to Mst. Munira, Sultana .from her father, Mian Sultan Ali Ranjha, and Muhammad Aslam P. W. got the words "Munira Aslam B. A." inscribed on it when they were at Karachi. When the taxi‑cab containing Muhammad Aslam P. W. reached a point between the Ravi Bridge and Buddha Nala Bridge the taxi‑cab was slowed down and Muhammad Aslant was pushed out by Shamsher Ahmad appellant. This spot is near the Ravi Road Police Post. Thereafter, the taxi‑cab and jeep continued their course towards the Ravi Bridge, Mst. Munira Sultana being one of the occupants of the jeep. Muhammad Aslam P. W. felt much shaken mentally after he had been landed on the pavement. He was not quite certain as to the fate of Mst. Munira Sultana. While, on the one hand, he thought that she would be taken to her village, on the other he had apprehensions that she might be killed. In this dual frame of mind, he proceeded on foot for some distance and, when he reached near the Post Office in the vicinity of Data Ganj Bakhsh, he hired a tonga and went to the house of Mian Maqbool in Mohallah Rahmanpura, Ichhra, Lahore. He knocked at the door of the house and when the door was eventually opened, he related to Mian Maqbool all that had happened and sought his advice as to what should be done. Mian Maqbool advised him to go to the Police Station, Ichhra, and await his arrival their before actually lodging the report. Muhammad Aslam P. W. also contacted Muhammad Ahmad (P. W. 28), a close friend of Mian Sultan Ali Ranjha and an acquaintance of Mst. Munira Sultana, who regarded him as a brother, and mentioned to him also what had happened. However, he went away to the Police Station, Ichhra, early in the morning and waited there for Mian Maqbool's arrival till 9 a. m. Finding that there was no likelihood of Mian Maqbool's arrival, he lodged the report Exh. P. G., which was recorded by Muhammad Zaman Khan, Station House Officer (P. W. 46) at 10.45 a. m. Some minutes later, Muhammad Aslam P. W. dictated his supplementary statement Exh. P. G./l, mention ing therein the ornaments and the Articles which Mst. Munira Sultana had on her person when she was taken away by the appellants' party in the circumstances mentioned above.
7. Some of the material events which preceded the forcible abduction of Mst. Munira Sultana deceased on the night between the 29th and 30th of September 1960 and some which followed it, are briefly summarised as follows.
8. After Muhammad Aslam P. W. had secretly brought Mst. Munira Sultana deceased to Lahore, Muzaffar Ali appellant sent for Ali Ranjha appellant and Ali Mochi approver (P. W. 2) from Dera Mubaraka. When these two persons arrived in the haveli of Muzaffar Ali at Bucha Kalan, they found already present there Muhammad Akram, Akhtar Hayat, Sikandar Hayat and Shamsher Ahmad appellants. Muzaffar Ali appellant told Ali Ranjha appel lant and Ali Mochi that since Mst. Munira Sultana had eloped with Muhammad Aslam and had marred him against the wishes of her relations, he wanted them (All Ranjha appellant and Ali Mochi approver) to get her and her husband, Muhammad Aslam, decoyed and killed. Ali Ranjha appellant told Muzaffar Ali appellant that he did not feel himself strong enough to carry out this proposal, but that he would do the needful in case they were brought by some one within a striking distance. Muzaffar Ali appellant, however, did not give up his project. It was apparently at his instance that Muhammad Akram appellant, after learning from Gaura and Saru that Muhammad Aslam and Mst. Munira Sultana had gone away to Karachi, had followed them thither and persuaded them to return to Lahore on the 19th of September 1960. Some days after Mst. Munira Sultana and Muhammad Aslam had started living in the bungalow in Gulberg belonging to Dr. Ghulam Yasin. Muhammad Akram, Sikandar Hayat and Shamsher Ahmad approached Nasim‑ur‑Rahman (P. W. 43) at his house in Sheikhupura and sought his assistance in retrieving the girl from Muhammad Aslam's custody. Nasim‑ur‑Rahman P. W. told them that he would like to have his friend, Mumtaz Ahmad (P. W. 42), associated with the plan. Mumtaz Ahmad, P. W. who lived in Khariarwala was sent for, and when he arrived, Muhammad Akram, Sikandar Hayat and Shamsher Ahmad appellants, accompanied by Mumtaz Ahmad and Nasim‑ur‑Rahman P. Ws., proceeded to Lahore and met Muhammad Ayub (P. W. 44), a friend of Nasim‑ur‑Rahman and Mumtaz Ahmad P. Ws. in his office near Lakshmi Chauk. Muzaffar Ali and Akhtar Hayat appellants also joined them a little later. During the talk that took place in the office of Muhammad Ayub P. W., it transpired that the accused party wanted the girl to be taken away by force and not by conciliatory measures. Mumtaz Ahmad and Nasim ur‑Rahman, therefore, declined to help the accused party who left the office of Muhammad Ayub P. W. disappointed at the attitude of Muhammad Ayub and his friends, Mumtaz Ahmad and Nasim‑ur‑Rahman.
9. On the 29th of September 1960, at about 4 p. m., Muhammad Akram, Sikandar Hayat and Shamsher Ahmad appellants contacted Shamshad Ahmad (P. W. 18) in his house in Samanabad, Lahore, and asked him for the loan of his car and a driver for taking them to Sargodha, As Shamshad Ahmad's own car was out of order, he told them that he would arrange for gett ing them a car from some friend. He, however, took them to Muhammad Amin (P. W. 3), who had been a driver of the car of Sardar Abdur Rashid, the father of Shamshad Ahmad P. W., and had left their private service for a job with the WAPDA, Lahore. Shamshad Ahmad P. W. told Muhammad Amin that Muhammad Akram, Sikandar Hayat and Shamsher Ahmad appellants were his friends and that he should take them to Sargodha in a car to be provided by him. Thereafter he returned home, but after he had reached his place, Abdul Aziz (P. W. 39), the driver‑peon of Mr. Anwar‑ul‑Haq, Executive Engineer (P. W. 17), arrived there in the car, No. PBG (now GA) 780, belonging to Anwar‑ul‑Haq P. W. and conveyed to him the message of Anwar‑ul‑Haq P. W. that Ghulam Mohi‑ud‑Din, a common friend of theirs, had died and that Shamshad Ahmad should reach the residence of the deceased on the Ferozepur Road. Shamshad Ahmad P. W., although he was running temperature, accordingly reached the residence of Ghulam Mohi‑ud‑Din at about 4‑30 p. m. and met Anwar‑ul‑Haq P. W. there. He, how ever, left the place after ten or fifteen minutes, pleading his inability to joint the funeral on account of fever, but after he had obtained the loan of Anwar‑ul‑Hag's car. He himself drove the car to his house and, at about 8 or 8‑30 p.m., took the car to the house of Muhammad Amin. P. W. and left it there, saying that he should take Muhammad Akram, Sikandar Hayat and Shamsher Ahmad appellants in that car to Sargodha. Sikandar Hayat and Shamsher Ahmad appellants came to the house of Muhammad Amin P. W. the same evening at about 10‑15 or 10‑30 p. m. apparently after Muhammad Aslam and Mst. Munira Sultana had already been forcibly taken away from their bungalow in Gulberg in a jeep car and a taxicab as already mentioned. Sikandar Hayat and Shamsher Ahmad got into the car, and Muhammad Amin drove them towards the…
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