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Petitioner: MUHAMMAD ARSHAD VS Respondent: MUHAMMAD MUSHTAQHonorable Justice Khawaja Muhammad Saeed
2003 M L D 1797
2003 M L D 1797
[Supreme Court (AJ&K)]
Present: Muhammad Yunus Surakhvi, C.J. and Khawaja Muhammad Saeed, J
MUHAMMAD ARSHAD and 5 others---Appellants
Versus
MUHAMMAD MUSHTAQ and others---Respondents
Appeals Nos. 10 and 11 of 2002, decided on 2nd July, 2003.
(On appeal from the judgment of the Shariat Court dated 24-6-2002 in Criminal Revision No.60 of 2002).
(a) Penal Code (XLV of 1860)---
----Ss.302/324/337-F(iii)/458/34/109---Criminal Procedure Code (V of 1898), S.190---Cognizance of offences in two challans submitted by police in one case---Validity---Police after necessary investigation finding the accused guilty had submitted challan under S.173, Cr.P.C. before the Trial Court---Local police with ulterior motives and in collaboration with the accused persons was alleged to have put up a subsequent challan in the Court against a different set of accused persons ---Shariat Court by means of the impugned order had directed the Trial Court to conduct proceedings in both tile challans---Prosecution relied upon eye-witnesses out of whom son of the deceased had sustained fire-arm injures whose presence on the scene of occurrence could not be denied---Other witnesses being inmates of the house were natural witnesses of the occurrence---Blood-stained clay had been recovered by the police from the place of occurrence in presence of witnesses---Blood stained clothes of the deceased and the injured witness had been handed over by the Doctor to the police in presence of marginal witnesses of seizure memos.--Ocular version of the prosecution was duly supported by the recoveries of three pistols on the pointation of accused persons-- Empties and bullets were recovered from the place of occurrence-- Ocular version of the eye-witnesses was also supported by medical evidence---Positive opinion of the Chemical Examiner had further supported the prosecution case--All the evidence collected by the police had, prima facie, connected the first set of accused persons with the offence and not the second one---Second set of accused had been introduced to give undue benefit to the first set of accused by the police with mala fide intention and the second Investigating Officer appeared to have been heavily brilled to spoil the case of prosecution---Impugned judgment of Shariat Court directing the Trial Court to proceed against the accused in the subsequent challan was set aside in circumstances being illegal and without lawful .authority---Trial Court was, however, directed to proceed against the first set of accused mentioned in the first Challan and the impugned judgment was upheld to such extent only.
Mst. Darya Khatoon v. The State 1996 PCr.LJ 1477; Muhammad Ayub v. Hussain Kiani and another 2001 PCr.LJ 578; Jamil Ahmed and others v. Superintendent of Police, Range, Crime Branch, Rawalpindi and others 1999 PCr.LJ 310; Mir. Zafarullah Khan Jamali v. State through S.P., Anti-Corruption Establishment, Balochistan PLD 2001 Quetta 10; Rahim Bakhsh v. Mian Muhammad Shafi and others 1995 SCMR 440; Muhammad Akbar v. State and others 1972 SCMR 335; Muhammad Akhtar Mir and others v. State 1972 PCr.LJ 15; Mian Mehraj Din v. The State 1985 PCr.LJ 2987; Abbas and 3 others v. The State 1993 PCr.LJ 2410 and Farrukh Ahmad Chughtai v. Muhammad Imtiaz and 6 others PLJ 1995 SC (AJ&K) 1 ref.
(b) Administration of justice---
----Appreciation of evidence ---Principle---Ipsi dixit of police is never binding on the Court of law.
Farrukh Ahmad Chughtai v. Muhammad Imtiaz and 6 others PLJ 1995 SC (AJ&K) 1 ref.
Mallick Muhammad Zarait Khan and Kh. Attaullah Chak, Advocates for Appellant (in Criminal Appeal No. 10 of 2002).
Abdul Rashid Abbasi Advocate for Respondents Nos.1 to 5 (in Criminal Appeal No. 10 of 2002).
Raja Ibrar Hussain, Advocate-General and Riaz Navid Butt, Additional Advocate-General for the State (in Criminal Appeal No. 10 of 2002).
Raja Muhammad Hanif Khan, Advocate for Appellants (in Criminal Appeal No.11 of 2002).
Abdul Rashid Abbasi, Advocate for Respondents Nos.1 to 5 (in Criminal Appeal No. 11 of 2002).
Ashfaque Hussain Kiani, Advocate for Respondents Nos.6 and 7 (in Criminal Appeal No. 11 of 2002).
Raja Ibrar Hussain, Advocate-General and Riaz Navid Butt, Additional Advocate-General for the State (in Criminal Appeal No. 11 of 2002).
Dates of hearing: 5th, 10th and 11th June, 2003.
JUDGMENT
MUHAMMAD YUNUS SURAKHVI, C.J.---The above titled both the appeals arise out of a common judgment passed by the Shariat Court of Azad Jammu and Kashmir on 24-6-2002 and relate to the same occurrence. As common questions of facts and law are involved in the both of them, therefore, the same are disposed of through this single judgment.
2. The necessary facts, giving rise to the present appeals, are that an F.I.R. was lodged against the accused-respondents Muhammad Mushtaq son of Muhammad Fazil and 4 others on 26-1-2001 at 3-45 a.m. at Police Station Kotli by the appellant, Muhammad Arshad son of Muhammad Akbar, for the commission of alleged offences under section 302, 324, 337-A, 458/34, A.P.C. After the necessary investigation, the police submitted a challan No.51 of 2001 under section 173, Cr.P.C. before the District Court of Criminal Jurisdiction Kotli on 10-3-2001, wherein the accused-respondents, Muhammad Mushtaq, Muhammad Ashfaque, Muhammad Fazil, Gulzar Khan and Ishtiaq Hussain Shah, were found guilty of commission of offences under sections 302, 324, 337/F-3, 458, 34 and 109 A. P. C. The occurrence was stated to have been witnessed, besides Muhammad Arshad, by, Mst. Mehfooz Jan, widow of Muhammad Akbar, deceased Mst. Farzana, wife of Muhammad Arshad, Muhammad Anwar son of Muhammad Akbar and Mst. Saima, daughter of Muhammad Akbar, deceased.
3. The trial Court recorded the statements of accused respondent under section 242, Cr.P.C. in which they, denied the charges levelled against them and claimed their trial. The prosecution was ordered to produce evidence in support of its case and the case was adjourned for producing the prosecution witness.
4. It is alleged by the complainant-appellant that after some time one Muhammad Arshad son of Ali Dad, was apprehended by the local police in connection with some other case, with the connivance of accused-respondents. S.H.O. Police Station Kotli, Muhammad Jamil Khan, subjected him to a severe torture and under the coercion got divulged from him that he had committed the murder of Muhammad Akbar. Later on confessional statement of accused, Muhammad Arshad son of Ali Dad, was recorded by the Magistrate on 23-4-2001. However, he remained in the custody of Police
instead of being sent to judicial lock-up as ordered by the S.D.M. It is also alleged by the complainant appellant that with the ulterior motives the local police in collaboration with the accused persons put up a subsequent challan before the District Court of criminal jurisdiction Kotli on 18-7-2001. The accused -respondents applied for their bail after, arrest before the trial Court on 26-3-2001. On 9-4-2001 the Court ordered for issuance of notice to the complainant. On 26-7-2001 the learned District Qazi passed an order that as the other Member (District and Sessions Judge) constituting the Court is on leave therefore, the appropriate order on the application would be passed on 27-8-2001. During this period, the accused-respondents moved a transfer application before the Sharait Court on 1-8-2001 on the ground that the learned District Qazi was not dealing with the case fairly and impartially, therefore, their bail application be transferred to some other Court of competent jurisdiction. The Shariat Court treated the said application as an application under section 561-A read with section 497 and 498, Cr.P.C. and ordered the release of accused-respondents vide its order dated 8-8-2001. The Shariat Court observed that as the subsequent challan has been submitted in the District Court of Criminal Jurisdiction Kotli against some other persons, hence first set of accused persons were liable to be set at liberty. The complainant-appellant filed an appeal before the Supreme Court of Azad Jammu and Kashmir against the aforesaid judgment of the Shariat Court and this Court vide its judgment dated 8-11-2001 set aside the order of Shariat Court dated 8-8-2001 and non-bailable warrants for arrest of accused -respondents were issued by this Court. This Court also directed that the trial Court should decide whether proceeding against the accused persons shall be initiated in the first challan or in the subsequent challan. The District Criminal Court Kotli vide its judgment dated 31-1-2002 ordered that proceedings shall be carried out in the light of first challan submitted by S.H.O. Police Station Kotli and also observed that the subsequent challan filed against Muhammad Arshad and others is not entertainable. Respondents Nos.1 to 5, feeling aggrieved by the aforesaid judgment of the District Criminal Court, filed a revision petition before the Shariat Court on 1-4-2002. The Shariat Court vide its judgment dated 24-6-2002 partly accepted the revision petition and ordered that proceedings in both the challans shall be conducted by the trial Court. It was observed by the Shariat Court as follows:--
".......... It is directed that the trial Court shall take cognizance of supplementary report and record statement of accused respondents 3 to 6 (appellants herein) under section 242. Cr.P.C. in the light thereof and rest of the proceedings shall be conducted in accordance with law as observed in preceding paras."
It is the aforesaid judgment of the Shariat Court dated 24-6-2002 handed down in Criminal Revision Petition No.60 of 2002 against which the present appeals have been filed (i) titled Muhammad Arsahd v. Muhammad Mushtaq and 5 others (Criminal Appeal No. 10 of 2002) and (ii) titled Kamran Aziz and 2 others v. Muhammad Mushtaq and 7 others (Criminal Appeal No. 11 of 2002).
5. In support of Appeal No. 10 of 2002, it was vehemently contended by Mallick Muhammad Zarait Khan, the learned counsel for the appellants, that the order passed by the District Court of Criminal Jurisdiction Kotli dated 31-1-2001, whereby the subsequent challan was not entertained is quite in accordance with law and suffer from no illegality or infirmity. The learned counsel contended that the first challan was submitted by S.H.O. Police Station Kotli against the accused-respondents, Muhammad Mushtaq and others, after thorough inquiry, probe and after recording the statements of eye-witnesses under section 161, Cr.P.C. on the basis of recoveries of weapons of offence at the instance of accused persons and supportive evidence like medical reports and other evidence like the recovery of blood-stained clothes. The statements of first informant and eye-witnesses recorded under section 161, Cr.P.C. reveal that the accused-respondents were identified by them, as such the involvement of some others innocent persons by the police on the basis of subsequent challan is not justified and is indicative of the fact that the police want to give undue benefit to the accused -respondents who are fully responsible for the murder of Muhammad Akbar, deceased and murderous assault on the persons of Muhammad Arshad, complainant. The learned counsel contended that in the subsequent challan the accused, Muhammad Arshad son of Ali Dad, is stated to have been arrested by the police in F.I.R. No.99 of 2001 dated 25-4-2001 who has confessed the murder of deceased, Muhammad Akbar. This version of the police, on the face of it, is unfounded and baseless because the challan submitted in the District Court of Criminal Jurisdiction Kotli regarding F.I.R. No.99 of 2001. clearly shows that Muhammad Arshad son of Ali Dad was not shown in the column of accused persons: therefore, the version of police regarding the statement of Muhammad Arshad, accused, stands totally belied, as he has not been challaned as an accused in the said case nor his name appears in the F.I.R. The said Muhammad Arshad was produced before the Magistrate 1st Class Kotli for getting his statement recorded under section 164, Cr.P.C. on 22-5-2001. The Magistrate ordered that the accused be kept in judicial lock-up and be produced on 23-5-2001 for getting his statement recorded under section 164. Cr.P.C. However, the S.H.O. Kotli instead of sending him to judicial lock-up, as ordered by the Magistrate, kept him under his custody at Police Station and sent him to judicial lock-up on 24-5-2001 after getting his statement recorded under section 164, Cr.P.C. The learned counsel also pressed into service the submission that even the statement of the accused recorded by the Magistrate 1st Class suffers from serious defects, lacunas and the same cannot be used against the accused, persons. Even the essential prerequisites of recording statement under section 164, Cr.P.C. were not fulfilled. The accused was not warned by the Magistrate that the statement which he was going to make could be used against him or that he was not bound to give such a statement. The accused was not even asked as to wherefrom he was coming. He was even not asked that whether he was giving statement in accordance with his free-will and without any coercion, fear or torture on the part of police. The record also reveals that in the first instance, the police managed some doctor to examine the accused, Muhammad Arshad son of Ali Dad, who stated that he has not been subjected to any torture but ultimately a Board of Doctors examined him which found so many injuries on his person which remained unexplained by the police before getting his confessional statement recorded. The Magistrate even did not record a note at the end of the statement that he made aware the accused of the fact that he is not bound to make such a statement and if he does so, the same can be used against him and further that the accused made statement out of his free and sweet will without any coercion or torture on the part of police. It was also not told by the Magistrate to the accused that he would not be sent to police custody after getting his statement recorded.
6. The learned counsel contended that it is the case of police that the accused who were nominated in the subsequent challan entered the house of deceased Muhammad Akbar in order to commit dacoity whereas none of the accused tried to loot or rob any property or any valuable article from the house except killing Muhammad Akbar and injuring the complainant, as claimed. It is also evident from the F.I.R. that the accused firstly knocked the door of one room of the house and after getting no response knocked the other door. If the accused had any intention to commit dacoity, then how they kept on knocking the doors of the house.
7. During the police custody, the accused nominated in the subsequent challan, Muhammad Arshad son of Ali Dad, Kamran Aziz and Muhammad Naseer made a request before the District Magistrate Kotli that they were physically beaten by the police on which a Medical Board was constituted and after examining the said accused persons, medical reports were submitted, according to which Muhammad Arshad had sustained five injuries, Kamran Aziz sustained two injuries and Muhammad Naseer sustained three injuries. All these injuries have been attributed during the detention of accused persons by the police.
8. The learned counsel contended that besides the injured witness, Muhammad Arshad son of Muhammad Akbar, there are other eye-witnesses of the occurrence, i.e. Mst. Mehfooz Jan, Muhammad Anwar, Mst. Saima and Mst. Farzana, who have unequivocally implicated the accused-respondents with the commission of alleged offences. He also contended that the dogs from the Army Dog Centre were also used to trace the evidence and it was after this exercise that the accused were arrested on being found guilty during the investigation the learned counsel further contended that the second set of accused persons is held up on the basis of statement of Muhammad Arshad, son of Ali Dad, allegedly recorded under section 164, Cr.P.C. when the police was holding investigation against the accused persons in connection with F.I.R. No.99 of 2001, but Muhammad Arshad is not and had never been accused in F.I.R. No.99 of 2001, hence according to the learned counsel the filing of challan against the accused-respondents on its basis is unfounded and without any lawful authority as it is intentionally done to make the case against the accused persons doubtful. The learned counsel further contended that the accused, Muhammad Arshad, after getting his confessional statement recorded immediately retracted from the confessional statement by filing an affidavit before the trial Court. The learned counsel vehemently argued that the retracted judicial confession could not be acted upon by the Courts unless corroborated in material particular by some reliable evidence. The learned counsel in support of his contention cited a case reported as Mst. Darya Khatoon v. The State (1996 PCr.LJ 1477) wherein it was observed that the retracted judicial confession is not to be acted upon by the Courts unless corroborated in material particulars by reliable evidence. In this authority, the learned counsel argued, that some fundamental rules for recording judicial confession have been recorded at page 1483 and some of them are as follows:--
"(i) The Magistrate should whenever feasible examine the body of the accused provided the accused consents to such examination. If there appear grounds of suspecting violence, he should have the accused examined by Medical Officer, if possible;
(ii) all questions put to the accused must be recorded in writing and his answers thereto must also be recorded in his words;
(iii) the Magistrate should add to the certificate required by section 164 of the Cr.P.C. a statement in his own hand, if grounds on which he believes that the confession is voluntary, the precaution which he took to remove the accused from the influence of the police and the time, if any, given to him for reflection;
(iv) accused who declines to make a statement before the Magistrate; or at accused who makes a statement, whether confessional or not, should not be remanded to police custody under any circumstances; and
(v) after a prisoner has made a confession, he be committed to jail, and the Magistrate should note on the warrant for the information of the Superintendent of the Jail concerned, that the prisoner has made a confession. "
9. The learned counsel for the appellant also contended that in a case reported as Muhammad Ayub v. Hussain Kiani and another (2001 PCr.LJ 578) it was observed that the Magistrate is not competent to record confession. Confession under Hudood cases must be recorded by the trial Court and a Magistrate is not competent to undertake this exercise. Any such statement recorded by a Magistrate would not be a confession and the same would have no legal effect. Keeping in view the aforesaid authority, according to the learned counsel for the appellant, in the same analogy in the cases of Qatl-i-Amd triable exclusively by the District Criminal Court, the confessional statement could not have been recorded by the Magistrate.
10. The learned counsel for the appellant further contended that in the supplementary challan besides the witnesses already cited in the original challan about thirty new witnesses have been cited which figure as 38 to 67. Out of these witnesses, witnesses Nos.39 to 42 have sworn affidavit and witnesses Nos.57, 59, 60, 66 and 67 stated before the Court that they do not know the respondents and neither have they ever been produced before them for identification. The witnesses from No. 1 to 37, which were cited in the first challan their supplementary statements were not recorded. All the witnesses of first challan which are also entered as witnesses in the subsequent challan from No. 1 to 37 fully implicate the first set of accused persons and not the second set of accused. The learned counsel also contended that it is the discretion of the Court to accept or to reject the challan and the Court below has rightly rejected the subsequent challan. The learned counsel further contended that the complainant and his family members have no grievance, grudge or complaint against those accused-respondents against whom the supplementary challan is filed. Their case is only against the first set of accused-respondents and in the circumstances of the case shifting of burden to second set of accused is just to give undue benefit to real culprits by creating doubts in the case.
11. Raja Muhammad Hanif Khan, Advocate appearing for second set of accused persons who are appellants in Appeal No. 11 of 2002, contended that the trial Court on the report submitted under section 173, Cr.P.C. can take cognizance of the offence under section 190, Cr.P.C. According to him cognizance is deemed to be taken when process is issued against the accused and as no process is issued against his clients, hence they cannot be deemed guilty of offence and supplementary challan shall be deemed to have been rejected. According to the learned counsel, the trial Court after applying its mind discussed in detail the circumstances under which his clients were not found guilty on account of which the cognizance in the matter against them was not taken. The learned counsel further contended that the rejection of supplementary challan amounts to discharge of the accused against which anneal could be filed by the Sate or by the complainant while the revision petition before the Shariat Court was filed by the accused-respondents, who were neither complainant nor authorised agents to do so, hence the revision petition against his clients was not competent.
12. Controverting the arguments raised by the learned counsel for the appellant, Mr. Abdul Rashid Abbasi, the learned counsel for the accused-respondents, submitted that the trial Court instead of following the direction given by the Supreme Court has predetermined the guilt of accused-respondents by holding that the challan filed against them is based on sufficient ocular, circumstantial and recovery evidence which speaks the mind of the Court that it is prejudicial towards the accused- respondents. He further contended that the trial Court was bound under law either to reject the supplementary challan or take cognizance on it while the Court instead has ordered that it is not entertainable. According to the learned counsel, the prosecution is at liberty to file any number of supplementary challans under section 173, Cr.P.C. and the Court is bound either to reject the supplementary challan or to accept it for proceedings or to order that the supplementary as well as the original challan shall be proceeded together. The order of the trial Court refusing to entertain the supplementary challan is without lawful authority. The learned counsel in this regard placed reliance on a case reported as Jamil Ahmed and others v. Superintendent of Police, Range, Crime Branch, Rawalpindi and others (1999 PCr.LJ 310). The learned counsel further contended that the trial Court should have proceeded on both the challans as evidence in both the cases was cited by the prosecution while submitting the original as well as the supplementary challan. He further contended that the police after investigation has found the first set of accused-respondents as innocent and the other set of accused-respondent as guilty. Hence, according to the learned counsel, in the circumstances of the case, both the cases should have been joined and tried together and ultimately the trial Court should have convicted, or acquitted the person found or not found guilty from any of the reports before it. The learned counsel relied upon the cases reported as Mir. Zafarullah Khan Jamali v. State through S.P. Anti-Corruption Establishment Balochistan (PLD 2001 Quetta 10), Rahim Bakhsh v. Mian Muhammad Shafi and others (1995 SCMR 440), Muhammad Akbar v. State and others (1972 SCMR 335) and Muhammad Akhtar Mir and others v. State (1972 PCr.LJ 15). The learned counsel invited attention of the Court towards the statement of Muhammad Arshad son of Muhammad Akbar, recorded on 26-1-2001 on the basis of which F.I.R. No.30 of 2001 was registered and then to his another statement recorded under section 161, Cr.P.C. on the same date and the supplementary statement recorded on 27-1-2001. In the light of these statements the learned counsel contended that Muhammad Arshad had not nominated any person in his statement dated 26-1-2001 on the basis of which F.I.R. was registered and he subsequently made improvements in the subsequent statement recorded under section 161, Cr.P.C. on 26-1-2001 and 27-1-2001 which are not reliable. He further contended that in view of contradictory stands of Muhammad Arshad son of Muhammad Akbar, no case against the first set of…
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