Full Judgment Text & Judicial Ruling

P L D 2017 Lahore 750 Before Aalia Neelum, and Syed Shahbaz Ali Rizvi, JJ MUHAMMAD AFZAL---Appellant Versus THE STATE and others---Respondents Criminal Appeal No.34-J and Murder Reference No.39 of 2012, heard on 9th May, 2016. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 337-J & 109---Qatl-i-amd, causing hurt by means of poison and abetment---Appreciation of evidence---Confessional statement of accused---Accused admitted that he committed murder of eight persons of his family---Accused pleaded guilty at the time of recording statement before the Magistrate---Accused again pleaded guilty at the time of framing charge---During the trial, accused further pleaded guilty---Accused had not denied the occurrence at any stage from the time of his arrest till his statement recorded under S.342 Cr.P.C.---Confessional statements recorded by accused person, proved to be voluntary and was not result of duress and any violence---Judicial Magistrate, had recorded the statements of accused person according to procedure laid down in the Cr.P.C. and no procedural irregularities could be found therein---Accused admitted the prosecution case, the mode and manner of the occurrence was duly proved by the prosecution---Conviction, on the basis of confessional statement, could be awarded to an accused, if the court was satisfied that the confessional statement was true and voluntary---Statements of prosecution witnesses also indicated that accused committed murder of eight persons of his family and he was caught red handed at the spot---Case of prosecution against accused was proved---Appeal against conviction was dismissed accordingly. (b) Penal Code (XLV of 1860)-- ----Ss. 302 (b), 337-J & 109---Qatl-i-amd, causing hurt by means of poison and abetment---Appreciation of evidence---Ocular account, corroborating medical evidence---Postmortem and medico-legal reports fully corroborated time of occurrence, nature of injuries, weapon of offence used in the occurrence and locale of injuries sustained by the deceased persons--- Medical evidence was absolutely in line with the ocular account and as such had fully supported the case of prosecution---Appeal against conviction was dismissed accordingly. (c) Penal Code (XLV of 1860)- ----Ss. 302 (b), 337-J & 109---Qatl-i-amd, causing hurt by means of poison and abetment---Appreciation of evidence---Motive, proof of---During investigation, the prosecution witnesses of ocular account had sufficiently explained about the motive by stating that parents of accused were often used to quarrel with each other---Mother of accused used to blame her husband gambler, while father of accused used to blame his mother of being of loose character---Due to the dispute between his parents, accused committed murder of the inmates of the house---Accused got recorded his confessional statement wherein, he narrated the story as stated by the prosecution witnesses---Accused also stated that 4/5 years ago he saw his mother with another man sleeping together on one bed---Accused made complaint about the illicit relation of his mother to his father and grand mother but of no avail---Prosecution witnesses had not stated that mother of accused was of bad character---Confessional statement of the accused, in circumstances, was sufficient to prove the motive---Appeal against conviction was dismissed accordingly. (d) Penal Code (XLV of 1860)-- ----Ss. 302 (b), 337-J & 109---Qatl-i-amd, causing hurt by means of poison and abetment---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Weapon of offence had been recovered on the pointation of accused---Crime empties had also been collected during spot inspection---Positive report of Forensic Science Laboratory had provided full corroboration to the ocular account in the case---Appeal against conviction was dismissed accordingly. (e) Penal Code (XLV of 1860)-- ----Ss. 302 (b), 337-J & 109---Qatl-i-amd, causing hurt by means of poison and abetment---Appreciation of evidence---Accused was charged of murder and named in FIR---Specific role had been attributed to the accused about making fire-shots on deceased persons---Accused was arrested red handed from the place of occurrence---Prosecution produced two eye-witnesses which had sufficiently explained the mode and manner as well as each and every segment of the occurrence---Evidence of eye-witnesses was supported by medical evidence and corroborated by recovery of weapons of offence along with positive report of Forensic Science Laboratory---Judicial confession of the accused was also available on record---Prosecution had proved the case against the accused---Appeal against conviction was dismissed accordingly. (f) Qanun-e-Shahadat (10 of 1984)--- ----Art. 91---Confession---Evidentiary value---Presumption of truth was attached to the confessional statement, which was made voluntarily and recorded in accordance with law---Such statement was admissible in evidence as it was presumed to be genuine as per provision of Qanun-e-Shahadat Order, 1984. Ms. Saiqa Javed for Appellant. Muhammad Jaffar, Deputy Prosecutor General along with Muhammad Safdar, S.I. for the State. Complainant in person. Date of hearing: 9th May, 2016. JUDGMENT AALIA NEELUM, J.---Muhammad Afzal son of Muhammad Asghar, caste Ansari, aged about 22 years, resident of Gali No.8, Madina Colony, Kallar Abadi, Gujranwala (appellant) through this appeal has assailed his conviction and sentence recorded by the learned trial court vide judgment dated 12.01.2012 in case F.I.R. No.1017 dated 23.10.2011, offence under Sections 302, 109 P.P.C., registered at Police Station Baghbanpura, District Gujranwala whereby the appellant was convicted as under:- i) Under Section 337-J, P.P.C. and sentenced him to ten years' R.I. death. ii) Under Section 302(b) P.P.C. and sentenced him to death on eight counts. ' The appellant/convict was also burdened to pay Rs.2,00,000/- on eight counts as compensation payable to legal heirs of the deceased as required under Section 544-A, Cr.P.C. and in case of default in payment thereof, to undergo S.I. for six months on each default. 2. The learned trial court has forwarded Murder Reference No.39 of 2012 for confirmation of death sentence inflicted upon Muhammad Afzal/convict in terms of Section 374 of Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through consolidated judgment. 3. Prosecution story, as described in the F.I.R. (Exh.PA/1) lodged on the complaint (Exh.PA) of Safdar Ali, SI, Incharge Police Post Kallar Abadi, Police Station Baghbanpura Gujranwala (PW-7) is that during the night of 23.10.2011 at about 02.00 a.m. he (PW-7) along with other police officials was present at Alam Chowk, Gujranwala where he received information through wireless control to the effect that firing was in progress in the house of Muhammad Asghar Ali son of Ali Muhammad Ansari. On receipt of this information, Safdar Ali, SI (PW-7) reached there and found present Muhammad Ilyas (PW-8) and Malik Naseer Ahmad (PW-9) along with Mohallahdars and accused/appellant-Muhammad Afzal was in their custody. The above said persons told that the appellant had committed murder of his father Muhammad Asghar, mother Sajida Bibi, two sisters Anam and Sanam and four brothers Muhammad Iqbal, Sajid, Abid and Muzammal by firing while they were sleeping. The above said persons further told that they had witnessed the occurrence and they had apprehended the appellant red handed at the spot. Motive behind the occurrence as disclosed in the crime report was that mother of the appellant used to blame her husband as gambler whereas father of the appellant used to blame her as woman of bad character and the accused was thus fed up due to the dispute between his parents and committed the murders. 4. After the occurrence, the complainant (PW-7) took the accused/appellant into custody and he (PW-7) drafted application (Exh.PA) and sent the same to police station through Muhammad Arshad 961/C for registration of formal FIR (Ex.PA/1). Syed Israr Hussain, Inspector/Investigation Officer (PW-11 ) reached the place of occurrence and Safdar Ali, SI (PW-7) handed over custody of the appellant to said Syed Israr Hussain, Inspector/Investigation Officer (PW-11). On 24.10.2011 he (PW-7) got recorded supplementary statement to the Investigating Officer (PW-1 1) to the effect that Atif son of Muhammad Aslam Chachazad of the appellant provided pistol and facilitated him (appellant) in the commission of murder of above said eight deceased persons. Safdar Ali, SI (PW-7) also got recorded in supplementary statement that Bilal Yousaf co-accused provided the appellant Ativan tablets which he (appellant) mixed in the tea and in this way Bilal Yousaf (co-accused) facilitated the appellant in the commission of murder of his father, mother, sisters and brothers. The complainant (PW-7) further deposed that in the life time of Sajida Bibi, deceased, one Muhammad Sarfraz developed illicit relation and people of locality reprimanded the said Muhammad Sarfraz. 5. Syed Israr Hussain, Inspector/Investigating Officer (PW-11) conducted the investigation of this case. He (PW-11) examined all the eight dead bodies and prepared injury statements (Exh.PK), inquest report (Exh.PL) and drafted applications for post mortem examination (Exh.PM) and sent the dead bodies for post mortem examination to DHQ Hospital, Gujranwala. He (PW-11) drafted rough site plan (Exh.PLL) and secured rush strings (P-22) to (P-25), rope made of pieces of cloth (P-26), rush string (P-27) and rope made of pieces of cloth (P-28) from the cots of deceased. He (PW-11) also secured eight crime empties (P-29/1-8) and one missed bullet (P-30) from the place of occurrence vide recovery memo (Exh.PJ). Safdar Ali SI (PW-7) handed over to him (PW-11) custody of accused/appellant (Muhammad Afzal) and he (PW-11) formally arrested the appellant. In presence of PWs Amjad Ali, 194-C (PW-13) and Asif Khan 170/C (given up PW), the appellant made a disclosure that after committing the occurrence, he (appellant) concealed the weapon of offence i.e. pistol 30 bore and as a sequel of disclosure, the appellant got recovered pistol 30 bore. On un loading, two bullets were recovered and he (PW-11) took the same into possession vide recovery memo (Exh.PMM). On the same day, he (PW-11) also secured blood stained clothes of all the deceased, eight sealed boxes containing six boxes each along with eight sealed envelopes, post mortem reports and relevant police papers. He (PW-11) confined the appellant in police lock up and handed over case property to Moharrar of the police station. On 24.10.2011, he (PW-11) produced the accused/appellant (Muhammad Afzal) before the Court of learned Area Judicial Magistrate and submitted application (Exh.PQQ) for recording statement of the appellant/accused (Muhammad Afzal) under section 164 of Cr.P.C. The confessional statement of the appellant/accused (Muhammad Afzal) was recorded by the learned Area Judicial Magistrate. He (PW-11) got medically examined the appellant/accused from DHQ Hospital, Gujranwala. On the basis of supplementary statement of Safdar Ali S.I (PW-7), the Investigating Officer (PW-11) arrested co-accused Atif in this case and confined him in police lock up. On 25.10.2011, he (PW-11) arrested the accused Sarfraz in this case. On 26.10.2011, the appellant/accused disclosed that prior to the occurrence he (appellant) purchased strip of Ativan tablets from Faisal Medical Store run by Bilal Yousaf, co-accused of the appellant and he (PW-11) prepared pointation memo (Exh.PRR) and arrested co-accused Bilal Yousaf. In presence of Abdul Qayytum 1754/C and Shafqat Ali 493/C, the appellant/accused (Muhammad Afzal) made a disclosure and got recovered empty strip of Ativan tablets (P-21) from underneath "Darri" lying in Baithak of his (appellant) house and he (PW-11) secured it vide recovery memo (Exh.PC). On 27.10.2011, he (PW-11) obtained attested copy of confessional statement of the appellant/accused (Muhammad Afzal). On 27.10.2011 Masood Ahmad Bhatti draftsman produced before him (PW-11) scaled site plan (Exh.PSS). On 28.10.2011, he (PW-11) sent the accused Muhammad Afzal, Sarfraz and Atif to judicial lock up. He (PW-11) recorded statement of all the PWs under section 161 Cr.P.C. and submitted incomplete challan in the court. On 13.12.2011 the learned Additional Sessions Judge, Gujranwala, formally charged the appellant to which he pleaded guilty. 6. The prosecution in order to substantiate its case produced as many as sixteen (16) prosecution witnesses during the course of trial. Ocular account in this case consists of the statements of Safdar Ali (PW-7) along with Muhammad Ilyas (PW-8) and Malik Naseer Ahmad (PW-9). Tariq Mahmood SI (PW-1) is author of F.I.R Exh.PA/1. Ashiq Ali 1549/C (PW-2) deposited eight sealed parcels said to contain blood stained pieces of ropes, crime empties, eight sealed boxes and sealed parcel of pistol 30 bore in the offices of Chemical Examiner and Forensic Science Laboratory Lahore. Usman Haider 1053/C (PW-3) got conducted autopsy on the dead bodies of deceased Asghar Ali, Muhammad Iqbal, Sajid, Muzammal, Abid, Mst. Sajida, Mst.Anam and Mst.Sanam on 23.10.2011. After autopsy, the doctor handed over to him (PW-3) last worn blood stained clothes (P-1) to (P-20), eight sealed boxes, eight sealed envelopes and post mortem reports, which he (PW-3) handed over to the Investigating Officer who took the same into possession vide seizure memo (Exh.PB). Basharat Ali 2321/HC (PW-4) kept the case property in safe custody in Malkhana. He (PW-4) handed over eight sealed parcels of blood stained pieces of rope and crime empties and eight sealed parcels and sealed parcel of pistol 30 bore to Ashiq Ali 1549/C for onward transmission to the offices of Chemical Examiner and Forensic Science Laboratory Lahore. Safdar Ali 493/C (PW-5) deposed that in his presence on 26.10.2011 the appellant got recovered empty strip of Ativan tablets P21 from his house. Muhammad Irfan (PW-6) identified the dead bodies of eight deceased persons in DHQ Hospital Gujranwala on 23.10.2011. After autopsy, the doctor handed over last worn blood stained clothes of all the eight deceased, eight sealed boxes, eight sealed envelopes and post mortem report to Usman Haider 1053/C, who (PW-6) handed over the same to Israr Hussain Inspector/Investigating Officer, who (PW-11) took the same into possession vide seizure memo (Exh.PB). Safdar Ali SI (PW-7) is complainant of this case whereas Muhammad Ilyas (PW-8) and Malik Naseer Ahmad (PW-9) are eye witnesses of this case. Sheikh Muhammd Javed, (PW-10) is witness of pointation memo (Exh.PK) by which the accused/appellant (Muhammad Afzal) made a disclosure and pointed out the shop of co-accused Bilal Yousaf from whom he (appellant) purchased strip of Ativan tablets. Syed Israr Hussain Shah Inspector (PW-11) is the investigating officer of case in hand. Shafaqat Shahbaz Raja, Magistrate Section-30 Gujranwala (PW-12) recorded confessional statement of the appellant/accused (Muhammad Afzal). Amjad Ali, 194/C (PW-13) is attesting witness of recovery memo (Exh.PMM) according to which the appellant/accused (Muhammad Afzal) got recovered pistol (P-31) along with two live bullets (P-32/1-2) from a "Bharoola" lying in a room of his house, on 10.10.2011. 7. Dr. Rao Asif Ali Khan, (PW-14) conducted postmortem examination upon the dead body of Asghar Ali, Abid and Muzammal. The doctor (PW-14) found following injury on the person of deceased Aghar Ali: 1. A firearm lacerated wound of entry 1 x 1 c.m x going deep with inverted and burnt margins on the right temporal region. 2. A firearm lacerated wound of exit 1 x 1 c.m with everted margins on the left side of head, middle part, 3 c.m. from left ear. After conducting the postmortem examination, the doctor had rendered the following opinion:- "Vide Chemical Examiner, Lahore's report bearing No.2062/PV Lahore:3 dated 05.01.2012, "Tranquillizer belonging to benzodiazepine group was detected in the above viscera". In my opinion, the cause of death in this case was injury to the brain caused by injury No.1 leading to shock and death which was sufficient to cause death in ordinary course of nature. The deceased was under effect of benzodiazepine group before the injury. Injury was ante mortem and caused by firearm. The probable time that elapsed between injuries and death was immediate whereas between death and post mortem was above 12 to 24 hours." The doctor (PW-14) found following injury on the person of deceased Abid:- 1. A firearm lacerated wound of entry 2 x 1.5 c.m x going deep with inverted and burnt margins on the front of right side of head at hair line. 2. A firearm lacerated wound of exit 1 x 1 c.m with everted margins on the left side of head, on the back. After conducting the postmortem examination, the doctor had rendered the following opinion: "Vide Chemical Examiner, Lahore's report bearing No.2068/PV Lahore:3 dated 05.01.2012, "Tranquillizer belonging to benzodiazepine group was detected in the above viscera". In my opinion, the cause of death in this case was injury to the brain caused by injury No.1 leading to shock and death which was sufficient to cause death in ordinary course of nature. The deceased was under effect of benzodiazepine group before the injury. Injury was ante mortem and caused by firearm. The probable time that elapsed between injuries and death was immediate whereas between death and post mortem was above 12 to 24 hours." The doctor (PW-14) found following injury on the person of deceased Muzammal:- 1. A firearm lacerated wound of entry with inverted and blackened margins 2 x 1.5 c.m x going deep on the back of left side of head. 2. A firearm lacerated wound of exit 1 x 1 c.m with everted margins on the right side of head, on the back, 5 c.m. from right ear. After conducting the postmortem examination, the doctor had rendered the following opinion: "Vide Chemical Examiner, Lahore's report bearing No.2067/PV Lahore:3 dated 05.01.2012, "Tranquillizer belonging to benzodiazepine group was detected in the above viscera". In my opinion, the cause of death in this case was injury to the brain caused by injury No.1 leading to shock and death which was sufficient to cause death in ordinary course of nature. The deceased was under effect of benzodiazepine group before the injury. Injury was ante mortem and caused by firearm. The probable time that elapsed between injuries and death was immediate whereas between death and post mortem was above 12 to 24 hours." 8. On the same day, Dr. Zohaib Hassan, (PW-15) conducted postmortem examination upon the dead body of deceased Sajid and Iqbal. The doctor (PW-15) found following injury on the person of deceased Sajid:- 1 . A firearm lacerated wound of entry 2.2 c.m. x going deep with inverted and burnt margins on forehead (frontal bone). 2. A firearm lacerated wound of exit 1 x 1 c.m with everted margins on left occipital region, 5 c.m. from left ear. After conducting the postmortem examination, the doctor had rendered the following opinion: "Vide Chemical Examiner, Lahore's report bearing No.2063/PV Lahore:3 dated 05.01.2012, "Tranquillizer belonging to benzodiazepine group was detected in the above viscera". In my opinion, the cause of death in this case was injury to the brain caused by injury No.1 leading to cardiopulmonary arrest, which was sufficient to cause death in ordinary course of nature. The deceased was under effect of benzodiazepine group before the injury. Injury was ante mortem and caused by firearm. The probable time that elapsed between injuries and death was immediate whereas between death and post mortem was above 12 to 24 hours." The doctor (PW-15) found following injury on the person of deceased Muhammad lqbal:- 1. A firearm lacerated wound of entry 2.2 c.m. x going deep with inverted and burnt margins on the forehead just above left eye brow. 2. A firearm lacerated wound of exit 1 x 1 c.m with everted margins on the left side of back of head. After conducting the postmortem examination, the doctor had rendered the following opinion:- "Vide Chemical Examiner, Lahore's report bearing No.2064/PV Lahore:3 dated 05.01.2012, "Tranquillizer belonging to benzodiazepine group was detected in the above viscera". In my opinion, the cause of death in this case was injury to the brain caused by injury No.1 leading to shock and death which was sufficient to cause death in ordinary course of nature. The deceased was under effect of benzodiazepine group before the injury. Injury was ante mortem and caused by firearm. The probable time that elapsed between injuries and death was immediate whereas between death and post mortem was above 12 to 24 hours." 9. On the same day, Dr. Lubna Masood, (PW-16) conducted postmortem examination upon the dead bodies of deceased Sajida, Anam and Sanam. The doctor, (PW-16) found following injury on the person of deceased Sajida:- 1. A firearm lacerated wound of entry 2.5 c.m. x 3.5 c.m. x going deep with inverted margins on left temporal region. Margins were burnt. 2. A firearm lacerated wound of exit 1 x 1 c.m with everted margins at the back of right side of head, After conducting the postmortem examination, the doctor had rendered the following opinion:-- "Vide Chemical Examiner, Lahore's report bearing No.2083/PV Lahore:3 dated 05.01.2012, "Tranquillizer belonging to benzodiazepine group was detected in the above viscera". In my opinion, the cause of death in this case was injury to the brain caused by injury No. I leading to cardiopulmonary arrest which was sufficient to cause death in ordinary course of nature. The deceased was under effect of benzodiazepine group before the injury. Injury was ante mortem and caused by firearm. The probable time that elapsed between injuries and death was immediate whereas between death and post mortem was above 12 to 24 hours." The doctor (PW-16) found following injury on the person of deceased Anam:- 1-A. A firearm lacerated wound of entry 3 x 2.5 c.m. x going deep on right side of head, 3 c.m. above the right ear with inverted and burnt margins. 1-B. A firearm lacerated wound of exit with everted margins 1 x 1. c.m. at the top of head. 2-A. A firearm lacerated wound of entry 1 x 1 c.m. x going deep with inverted margins on outer side of right arm, 2 c.m. above the elbow joint. 2-B. A firearm lacerated wound of exit with everted margins on inner side of right arm, 5 c.m. above the elbow joint. (1.5 x 1.5 c.m). 3-A. A firearm lacerated wound of entry with inverted margins 1 x 1/2 c.m. x going deep inner side of left fore arm, 6 c.m. below the left elbow joint. 3-B. A firearm lacerated wound of exit on outer side of fore arm 3 c.m. below the left elbow joint (1 x 1.5 c.m). After conducting the postmortem examination, the doctor had rendered the following opinion: "Vide Chemical Examiner, Lahore 's report bearing No.2066/PV Lahore:3 dated 05.01.2012, "Tranquillizer belonging to benzodiazepine group was detected in the above viscera". In my opinion, the cause of death in this case was injury to the brain caused by injury No.1 leading to cardiopulmonary arrest, which was sufficient to cause death in ordinary course of nature. The deceased was under effect of benzodiazepine group before the injury. Injury was ante mortem and caused by firearm. The probable time that elapsed between injuries and death was immediate whereas between death and post mortem was above 12 to 24 hours." The doctor (PW-16) found following injury on the person of deceased Sanam:- 1. A firearm lacerated wound of entry 3.2 c.m. x going deep with inverted and burnt margins on left side of fore head near anterior hair line. 2. A firearm lacerated wound of entry 1 x I c.m with everted margins on the right side of head, 3 c.m. above the right ear. After conducting the postmortem examination, the doctor had rendered the following opinion:-- "Vide Chemical Examiner, Lahore's report bearing No.2065/PV Lahore:3 dated 05.01.2012, "Tranquillizer belonging to benzodiazepine group was detected in the above viscera". In my opinion, the cause of death in this case was injury to the brain caused by injury No.1 leading to cardiopulmonary arrest, which was sufficient to cause death in ordinary course of nature. The deceased was under effect of benzodiazepine group before the injury. Injury was ante mortem and caused by firearm. The probable time that elapsed between injuries and death was immediate whereas between death and post mortem was above 12 to 24 hours." 10. The learned Deputy District Public Prosecutor vide his separate statement had given up Shahbaz, Aman Ullah and Abdul Qayyum, Asif Khan 170/C, Muhammad Ashfaq and Ibrar Hussain (PWs) as being unnecessary and closed the prosecution evidence while tendering in evidence the reports of Chemical Examiner, Lahore…

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