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Petitioner: MUHAMMAD BASHIR and others VS Respondent: The STATE and others
Court Name: Lahore High Court Judge(s): Sayyed Mazahar Ali Akbar Naqvi, Syed Muhammad Kazim Raza Shamsi Title: MUHAMMAD BASHIR and others vs The STATE and others Case No.:Criminal Appeal No,596-T of 2004Criminal Appeal No,8 of 2005Criminal
JUDGMENT
Reported As: 2015 YLR 932 Result: Order accordingly Judgment JUDGMENT ' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Muhammad Bashir son of Sher Zaman, resident of Mankiala Muslim, Tehsil Gujjar Khan, District Rawalpindi, appellant (Criminal Appeal No,596- T/2004), along with Muhammad Zahid, Gul Nawaz and Muhammad Akhtar (since acquitted) was booked in case FIR No,272, dated 15-6-2002, offence under sections 302, 324, 148, 149, 109, 120-B, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997, registered at Police Station Gujjar Khan, District Rawalpindi. After registration of the case, the investigation was carried out by the local police, however, the same was not accepted by the complainant and he showed his dissatisfaction. According to the version of the prosecution Muhammad Bashir Bhatti appellant in connivance with Muhammad Aslam, ASI, Muhammad Nawaz Head Constable (Naib Court) and Tahir Reader succeeded in lodging case FIR No,222, dated 12-6-2002 under Section 7 of the Surrender of Illicit Arms Act (XXI) 1997, at Police Station Airport against him and sent someone else to Adyala Jail and after commission of the aforesaid crime, he while joining hands with the jail authorities himself confined in the jail premises; thereby substituting the dummy prisoner, who was earlier lodged in jail premises in connection with the aforesaid crime. Accordingly the complainant filed private complaint titled as Muhammad Safeer v. Muhammad Bashir and others under the provisions of sections 302, 324, 148, 149, 109, P.P.C., read with section 7 of the Anti-Terrorism Act, _ 1997. On submission of complaint, the learned trial" court after recording preliminary evidence and taking into consideration all other documents vide order dated 16-11-2002 issued process against the appellant and others except Muhammad Aslam ASI, Tahir Mehmood Reader and Muhammad
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Nawaz Head Constable (Naib Court). Proceedings in complaint case were initiated on preferential basis and the learned trial court after taking into consideration the whole evidence adduced by the prosecution vide judgment dated 9-12-2004 convicted and sentenced the appellant in the following terms:-- ' Under Section 7(a) of the Anti-Terrorism Act, 1997, read with section 109, P.P.C., sentenced to death on four counts with fine of Rs,1,00,000. ' Under Section 7(c) of the Anti-Terrorism Act, 1997, read with section. 109, P.P.C. Sentenced to imprisonment for life on three counts. 2. Muhammad Bashir appellant has assailed his conviction and sentence through filing Criminal Appeal No,596-T/2004. Learned trial court also forwarded Capital Sentence Reference No,3-T/2005 for confirmation of death sentence inflicted upon Muhammad Bashir/convict. Vide the impugned judgment the learned trial court had acquitted Muhammad Zahid, Gul Nawaz and Muhammad Akhtar, accused and to their extent, the complainant preferred Criminal Appeal No,8 of 2005 in which vide order dated 29-5-2009 notice was issued to Muhammad Zahid and Gul Nawaz/respondents Nos.1 and 2. As all 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 portrayed in the complaint (Exh.PJ) lodged by Muhammad Safeer son of Wazeer Khan, caste Mughal, resident of Mankiala Muslim, Gujjar. Khan (P.W.4) is that the complainant is resident of Gujjar Khan and residing along with his family members. Muhammad Aslam son of Fateh Din and his wife Mst. Kalsoom Bibi residents of Chatran Sensah, Azad Kashmir had visited house of the complainant in order to see Bagh Hussain uncle (Taya) of the complainant, who was indisposed. On the night between 14 and 15 June, 2002, along with the complainant, Muhammad Aslam and his wife Mst. Kalsoom Bibi, Wazeer Ahmed father of the complainant, Muhammad Shabbir (brother), Sajida Shabbir (bhabi) Sakina Bibi (mother), Muhammad Asim and Noman Ali (bhanjas) son of Muhammad Basharat, residents of Ward No,7, Gujjar Khan, went to sleep in the courtyard, the bulbs were lit. At about 3:00 a.m. (night) Muhammad Bashir son of Sher Zaman armed with kalashnikov, Muhammad Azram son of Ali Akbar armed with rifle, Bilal Asghar son of Muhammad Asghar armed with rifle, Muhammad Nazamat alias Kola son of Muhammad Riasat armed with pistol, Muhammad Zahid son of Muhammad Yousaf armed with rifle, Gul Nawaz son of Karamat Hussain armed with pistol, Mazhar Hussain son of Abdul Rehman armed with pistol, in connivance with each other, from the backside of the house of the complainant with the help of stairs went on the rooftop of the house. Muhammad Bashir raised lalkara not to spare any person on which the complainant after coming down from his cot, concealed .Himself behind the wall of kitchen. Muhammad Bashir and other accused persons started straight firing in the courtyard, which landed at Wazeer Muhammad on his chest and knee of left leg, on right armpit, left flank and on right thigh of Muhammad Shabbir, on left bicep, right hand and right leg of Muhammad Aslam, on left flank, left thigh of the left shin and right thigh of Mst. Kalsoom Bibi, on left and right foot of Noman Ali, on right knee of Sajida Bashir, on right shin and left foot of Muhammad Asim. On sustaining the injuries Muhammad Aslam and Mst. Kalsoom Bibi died at the spot while Wazir Muhammad, Muhammad Shabbir, Noman Ali, Mst. Sajida Shabbir and Muhammad Asim sustained injuries, who were evacuated to the hospital, however, on way Wazir Muhammad and Muhammad Shabbir succumbed to the injuries. The police reached the hospital where statement of the complaint was recorded on the basis of which formal FIR bearing No,272, dated 15-6-2002, offence under sections 302, 324, 148, 149, 109, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997 was registered at Police Station Gujjar Khan. It was also averred in the complaint that on 14-6-2002 Muhammad Bashir son of Sher Zeman, Muhammad Azram son of All Akbar, Bilal Asghar son of Muhammad Asghar, Muhammad Nazamat alias Kala son of Muhammad Riasat, Muhammad Zahid son of Muhammad Yousaf, Gul Nawaz son of Karamat Hussain, Mazhar
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Hussain son of Abdul Rehman and Muhammad Akhtar son of Lal Khan had gathered in the house of Muhammad Akhtar, whereby conspiracy was hatched to commit this occurrence. ' Motive behind the occurrence as disclosed in the crime report was stated to be previous criminal litigation inter se the parties. Moreover, besides the complainant the occurrence was witnessed by Sakina Bibi mother of the complainant and other injured witnesses in the light of bulbs. The complainant had also urged that Muhammad Bashir appellant was a resourceful person and in order to materialize the whole occurrence he while joining hands with Muhammad Aslam ASI, Muhammad Nawaz Head constable Naib Court and Tahir Reader of the trial court by concocting a false story got lodged case FIR No,222, dated 12-6-2002 under Section 7 of the Surrender of Illicit Arms Act (XXI) 1997, Police Station Airport and while committing impersonation; thereby arranging another person for lodging him at Jail in place of the complainant and after committing the occurrence while joining hands with the jail officials, he himself lodged at the jail. 4. On receipt of reports regarding the occurrence, Muhammad Qasim DSP (CW-27), who was posted as Inspector/ SHO of Police Station Gujjar Khan, proceeded to Civil Hospital, where Safeer Ahmed complainant made his statement, which was reduced into writing (Exh.PM) and the same was sent to Police Station for registration of formal FIR. Thereafter, the Investigating Officer inspected the dead bodies and drafted application for postmortem examination (Exh.CP) and inquest report (Exh.CQ) of Muhammad Shabbir, application for postmortem examination (Exh.CR) and inquest report (Exh.CS) of Wazir Muhammad and entrusted the dead bodies to Muhammad Shoban constable for autopsy. Thereafter, the Investigating Officer inspected the dead body of Muhammad Aslam and prepared inquest report (Exh,CU) and application for postmortem examination (Ex and application for postmortem examination (Exh.CV) of Kalsoom Bibi and her inquest report (Exh.CW) for their postmortem examination. Subsequently, the Investigating Officer prepared injury statement of Noman injured (Exh.CX), injury statement of Asim injured (Exh.CY) and injury- statement of Sajida Shabbir (Exh.CZ) and sent them to civil hospital for their medical examination. From the spot, the Investigating Officer secured blood from the place of murder of Wazir Muhammad and made into sealed parcel vide recovery memo Exh.CA and from the place of murder of Shabbir deceased vide recovery memo Exh.CB. Blood from the place of murder of Muhammad Aslam was secured vide recovery memo Exh.CC and blood from the place of murder of Kalsoom Bibi was secured vide recovery memo Exh.CD. He also secured 93 crime empties from the place of occurrence and made into sealed parcel vide recovery memo Exh.CE. The stair used for climbing over the roof was taken into possession vide recovery memo Exh.CF and 28 bullets from the courtyard of the house were taken into possession vide recovery memo Exh.CG. ' After postmortem examination Muhammad Shoban constable produced last worn clothes of Wazir Muhammad deceased, which he secured vide recovery memo Exh.CH. Last worn clothes of Shabbir deceased were taken into possession vide recovery memo Exh.CJ. Thereafter, Munawar constable produced last worn clothes of Mst. Kalsoom Bibi vide recovery memo Exh.CJ/1 and that of Muhammad Aslam deceased were secured vide recovery memo Exh.CJ/2. On reaching the Police Station, the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned. ' On the direction of the Investigating Officer and pointing out of the P.Ws., Qamar Din draftsman after taking notes of the place of occurrence, prepared scaled site plan (Exh.CO). 5. Thereafter the investigation came up before Syed Haseeb Hussain Shah, DSP (CW-17), who on 8- 7-2002, after adopting all codal formalities, obtained physical remand of the appellant. During the course of interrogation on 30-7-2002, the appellant after making disclosure led to the recovery of two hand grenades from his cattle shed, which were taken into possession by the Investigating Officer. Thereafter the investigation came up before Yousaf Ali Shahid Inspector (CW-19), who on
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14-9-2002 verified the investigation carried out by CW-17 and submitted his report before the Superintendent of Police, Range Crime, Rawalpindi. 6. After conclusion of investigation, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the court of competent jurisdiction. Firstly the appellant was charge sheeted on 3-3-2003 and subsequently fresh charge was framed on 9-12-2004 to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as nine (9) prosecution witnesses, while twenty eight (28) persons were summoned as court witnesses. ' Occular account in this case consists of the statements of Muhammad Safeer complainant (P.W.4), Muhammad Asim Basharat (P.W.5), Mst. Sajida Shabbir (P.W.6) and Mst. Sakeena Bibi (CW- 24). Besides drafting complaint, Muhammad Qasim DSP (CW-27) had initially investigated the case, which was further conducted by Syed Haseeb Hussain Shah DSP (CW-17) and Yousaf Ali Shahid Inspector (CW-19). Muhammad Azam 12232/HC (CW-20) was Moharrar at the relevant time. ' Dr. Shahida Hamid, Woman Medical Officer (P.W.1), on 15-6-2002, had conducted postmortem examination upon the dead body of Mst. Kalsoom Bibi and found following injuries on her person:-- "(1) Firearm entrance wound, oval shaped, on lower later part of left abdomen just below the line of level of superior border of left iliac crest of 1 c.m. x 0.7 cm. (2) Fire arm exit wound of injury No,1 at the upper part of right thigh on its back of 2 c.m. x 1 c.m. And fracture of right hip joint. (3) Firearm entry wound on the upper lateral part of left thigh of 8 c.m. x 0.6 cm. It is 24 c.m. From the injury No,l. (4) Fire arm exit of injury No,3 on the inner lower part of left thigh of 7 c.m. x 6.5 cm with irregular margins damaging underlying muscles, blood vessels, but sparing the bones. (5) Firearm entrance wound on the lower outer part of left lower leg 1 cm x 0.7 cm. It is 13 cm above the left ankle. (6) Fire arm exit of injury No,5 with irregular margins on the lower part of left leg directed down ward and inward of 4 cm x 0.8 cm. It is 6 cm from injury No,5. (7) Firearm entry wound on .The lower part of right thigh medially oval shaped of 1.5 cm x 2 cm. (8) Firearm exit of injury No,7 on the outer part of right thigh at the same level of entry wound of 2.5 cm x 2.2 cm. There is fracture of right hip joint and fracture of lower right femure. ' After conducting the postmortem examination, the doctor rendered the following opinion:-- "In my opinion cause of death was haemorrhagic shock caused mostly by the injuries Nos.1 and 2 which have badly damaged the abdominal vessel, causing an extensive internal haemorrhage which was sufficiently fatal to cause death in an ordinary course of nature. The injuries were ante- mortem and were caused by firearm. ' Probable time between injuries and death was about half to one hour and between the death and post mortem about six to eight hours." ' On 15-6-2002 Dr. Ahmad Farooq, Medical Officer (P.W.2) had conducted postmortem examination upon the dead body of Muhammad Shabbir and observed following injuries on his person:-- "(1) Entry wound 1 x 1 cm right mid auxiliary line 16 cm from right iliac crest. (2) Exit wound of injury No,1, 3 x 2 cm right side of chest 6 cm from mid line and slightly below the level of right nipple. (3) Entry wound .7 x .7 cm in the left lumber region 12 cm from mid line. (4) Exit wound of injury No,3, 2.5 x 2 cm right side of abdomen 8.00 cm from mid line and 10 cm above the umbilicus. (5) Entry wound .8 x .8 cm front and middle of right thigh.
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(6) Exit wound of injury No,5, 2 x 2 cm on lateral and lower aspect of right thigh. It was 12 cm from entry wound and 8 cm below the low level of entry wound. All entry wounds had abrasion collars." ' After conducting the postmortem examination, the doctor rendered the following opinion:-- "In my opinion the person died due to damage to vital organs and hypovolumic shock, which was sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem. Probable time between injuries and death within one hour, between death and postmortem died at 3.35 a.m. On 15-6-2002 and postmortem started at 5:00 a.m. On 15-6-2002." ' On the same day P.W.2 had conducted postmortem examination on the dead body of Wazir Muhammad deceased and found following injuries on his person:-- - "(1) Entry wound 2 x 1 cm on front of left chest, 5 cm from mid line and 8 cm from left nipple and 4 cm above the level of nipple. (2) Exit wound .5 x .5 cm with grazing 3.5 x 1 cm on chest, 3cm from midline 11 cm from left nipple, 3.5 cm above the left nipple. The distance between the entry and exit 2.5 cm. (3) Entry wound 1.3 x 1 cm on right side of chest 2 cm from the midline at the level of right nipple. (4) Exit wound 1.5 x 1 cm on lateral aspect of right side of chest at the level of mid auxiliary line and 15 cm from the anterior auxiliary fold. (5) Entry wound 0.5 x 0.3 on lateral aspect of left knee joint. (6) Exit wound 1 c.m. x .3 cm on the medial aspect of left knee joint, 4 cm from the entry wound and 2 cm below the level of entry wound. All entry wounds had abrasion collars. ' After conducting the postmortem examination, the doctor had opined as under:-- "In my opinion death had occurred due to damage to vital organs and hypovolumic shock which were sufficient to cause death in ordinary course of nature. All the injuries were ante mortem. Probable duration between injuries and death was within minutes. Duration between death and postmortem examination was about three to four hours." ' The doctor had also conducted postmortem examination upon the dead body of Muhammad Aslam deceased and observed following injuries:-- "(1) Entry wound 0.8 cm x 0.8 cm on back and lateral aspect of left upper arm making tract towards anterior auxiliary fold making an entry forward. (2) Exit wound 1.5 x 1 cm just below anterior auxiliary fold. The same firearm entered into the chest 6 cm from the anterior auxiliary fold and 6 cm from the left nipple. The same firearm made the track towards apegastic area making exit wound 6 x 3 cm on midline. Clinically there was fracture of the corresponding bones (left humerous and ribs). (3) Entry wound 2 x 1.5 cm on the dorsal aspect of left arm near thumb. (4) Exit wound 1.5 x .5 cm on palmer aspect near thumb and there was grazing of the same bullet 7 x 1 c.m. On middle finger and 1.5 x 1.5 cm grazing on index finger distally. (5) Entry wounds .6 x .6 cm on front and middle of right thigh. (6) Exit wound .9 x .9 middle and lateral aspect of right thigh, 12 c.m. Apart from entry and at the same level. All entry wounds had abraded collars." ' After the postmortem examination, the doctor had rendered the following opinion:-- "In my opinion death had occurred due to damage to vital organs by injuries Nos.1, 2, 3 and 4 which were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem. ' Probable time between injuries and death within minutes and between death and postmortem about four to five hours." ' Statements of rest of the witnesses are formal in nature. 7. On 21-4-2003 the prosecution gave up Noman Ali, Abdul Majeed and Muhammad Shakeel P.Ws. Being unnecessary while Noman Ali, Muhammad Shakeel and Muhammad Rafique, P.Ws., were given up on 22-10-2003 again being unnecessary. Further on 12-4-2004, learned counsel for the
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complainant had given up Sajid Mehmood, PW, being unnecessary. On 23-8-2004 after tendering in evidence the reports of Chemical Examiner (Exh.PK/1-4), the prosecution evidence was closed. 8. The appellant was also examined in terms of Section 342, Cr.P.C. Wherein he opted to adduce evidence in his defence, however, he opted not to appear as his own witness in terms of Section 340(2), Cr.P.C. While replying to the question why this case against him and why the P.Ws. Deposed against him, the appellant made the following deposition:-- "Deceased's side had multiple enmities and in this case the occurrence had taken place in the dark hours of night which was unseen. I was made scapegoat out of suspicion, and the version of the complainant was found false in successive investigation. P.Ws. Are fake and planted. Their testimony is contradicted and belied by the documentary evidence." 9. Learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt against the appellant resulting into his conviction in the afore stated terms. 10. Learned counsel for the appellant while advancing his arguments submitted that as per prosecution version in the instant case the occurrence had taken place on 15-6-2002 at 3:00 a.m. And it was reported to the police with a delay of more than two hours at 5:10 a.m. While inter se distance between the place of occurrence and the Police Station was only 5-KMs. Learned counsel vehemently agitated that even no source of light installed at the rooftop of the house was mentioned in the crime report, therefore, the identification of the appellant and other co-accused is highly doubtful. Learned counsel for the appellant emphasized that even in the successive investigations carried out by senior police officers the prosecution accusations contained in the crime report were found false and version of the appellant that at the relevant time he was lodged behind judicial lock up was found correct, which straightway vitiates the prosecution case. It was vehemently argued that even no specific role was ascribed to the appellant, therefore, the medical evidence does not substantiate the prosecution case. Learned counsel further contended that nothing was recovered from the appellant during the course of investigation. He next submitted that as ingredients of provisions of section 107, P.P.C., are not made out from the facts of the case, therefore, the learned trial court was not justified in recording conviction under the provisions of section 109, P.P.C. Learned counsel further argued that astonishingly the learned trial court acquitted the appellant under the provisions of section 302, P.P.C., however, convicted him under the provisions of Section 7(a) of the Anti-Terrorism Act, 1997, which on the face of it is against the guidelines given by the superior courts from time to time. In this backdrop, learned counsel urged, in absence of any cogent evidence, the learned trial court was not justified in recording conviction/sentence against the appellant, which requires interference by this Court at appellate stage. In support of his contentions learned counsel for the appellant placed reliance on the dictum of law laid down in the case of Mehboob-urRehman v. The State (2013 SCMR 106). 11. As against above, learned DDPP assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant with the submissions that the appellant was duly named in the crime report, who while armed with rifle (kalashnikov) resorted to firing in the house of the complainant in which besides other family members two guests also lost their lives. Learned counsel further contended that the appellant while joining hands with the court staff and jail officials lodged a substitute at jail in his place and after committing the occurrence, he himself replaced him. It was argued that in their statements three injured prosecution witnesses fully supported the allegations levelled in the crime report, which fully saddle the appellant with the liability. Learned counsel for the complainant urged that the medical evidence is in line with the ocular account. It was next argued that during the course of trial the prosecution brought on record sufficient incriminating evidence in order to substantiate that the appellant hatched conspiracy with other co-accused and thereafter committed the occurrence. Moreover, during the
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course of inquiries conducted by senior officers, the appellant conceded his guilt and in report prepared in terms of section 173, Cr.P.C. While holding him guilty, the name of the appellant was placed in column No,3. It was finally argued that in view of overwhelming material brought on record the learned trial court while advancing cogent reasons, convicted the appellant, therefore, the instant appeal is liable to be dismissed straightway. Learned counsel for the complainant, however, conceded that in view of record available on file, the prosecution could not substantiate the presence of the appellant at the place of occurrence at the relevant time. 12. While arguing Criminal Appeal No,8 of 2005, learned counsel for the complainant submitted that both Muhammad Zahid and Gul. Nawaz/ respondents Nos.1 and 2 were duly named in the crime report with the allegation of having resorted to firing upon the deceesed family. Learned counsel agitated that during the course of investigation the crime weapons were recovered on the pointing out of the respondents. Learned counsel emphasized that the medical evidence also corroborates the prosecution version of occular account. While appreciating the material available on record, learned counsel for the complainant urged, learned Division Bench had issued notice to the respondents, hence in presence of sufficient incriminating evidence saddling them with the liability, the conclusion arrived at by the learned trial court requires interference at appellate stage and they are entitled to be convicted under the relevant provisions of law. 13. Learned counsel representing the respondents in Criminal Appeal No,8/2005 submitted that during the course of investigation, as well as, trial, the prosecution failed to substantiate the accusations levelled in the crime report. It was next contended that bulk of prosecution case was found false during the course of investigation. Learned counsel further argued that even the principal accused to whom direct role was ascribed was .Found lodged at jail at the relevant time. It was also argued that in view of shaky evidence adduced during the…
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