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Petitioner: FAQIR MUHAMMAD and others VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Dost Muhammad Khan, Jehanzaib Rahim Title: FAQIR MUHAMMAD and others vs THE STATE Case No.: Criminal Appeal No,58 of 2005 Date of Judgment:2006-03-10 Reported As: 2006 MLD 867 Result: Order accordingly
JUDGMENT
JUDGMENT ' DOST MUHAMMAD KHAN, J.---Appellants (1) Imtiaz, (2) Raj Muhammad, (3) Muhammad Siddique, (4) Muhammad Riaz, (5) Muhammad Javed and (6) Faqir Muhammad were tried by the Judge Anti-Terrorism Court Hazara Division, Abbottabad on the charges under sections 17(4) Haraba, Offences Against Property (Enforcement of Hudood) Ordinance, 1979, on a murder charge for offence under section 302 read with section 149, P.P.C. And for crime under section 324 read with section 149, P.P.C. As well as under sections 6 and 7 of the Anti-Terrorism Act, 1997 and after finding them guilty, upon conviction appellant Imtiaz has been sentenced to death for causing the murder of Muhammad Iqbal during the course of committing dacoity with a fine of Rs,1,00,000 or in default of payment of fine to suffer two years' S.-I. Under section 396, P.P.C., Raj Muhammad appellant has been sentenced to rigorous imprisonment for life with a fine of Rs,60,000 or in default of payment of fine to suffer two years' S.-I. For causing grievous fire-arm injury to Mujahid Iqbal (P.W.13) while appellants (i) Muhammad Siddique (ii) Muhammad Riaz (iii) Muhammad Javed and (iv) Faqir Muhammad have been sentenced to 7 years' R.I. Each with a fine of Rs,50,000 each or in default thereof to suffer one year. S.-I. They have been convicted and sentenced under section 148 read with section 149, P.P.C. And under sections 6 and 7 of the Anti-Terrorism Act, 1997 to two years' R.I. However, the sentences awarded to them were directed to run concurrently and benefit of section 382-B, Cr.P.C. Was given to them. The absconding accused Tasawar has been declared proclaimed offender. ' The learned trial Judge has sent Murder Reference No,4 of 2005 for confirmation of death sentence awarded to Imtiaz appellant vide his judgment dated 21-5-2005 while, Mujahid Iqbal, the injured P.W., has filed Criminal Revision Petition No,17 of 2005 seeking the enhancement of the
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sentence of life R.I. To death sentence given to Raj Muhammad as well as enhancement of fine amount. He has also sought enhancement of the sentence of 7 years' R.I. To death penalty of the four appellants, namely, Muhammad Siddique, Muhammad Riaz, Muhammad Javed and Faqir Muhammad with a further prayer that the substantive sentences may be ordered to run consecutively. This judgment shall, therefore, also decide the said criminal revision petition as questions of law and facts in both are identical. 2. Briefly stated, the prosecution case is that on 5-2-2005 Muhammad Younas (P.W.10) reported the incident to Fazalur Rehman A.S.-I. (P.W.21) that after closing his hotel called "Zahid Nehari Hotel" he boarded a Suzuki Pick-up bearing No,B-2595-ATD for going to his village while Niaz, Rizwan, Sohail, Qaisar, Bilal, Mujahid Iqbal, Naseer and some other passengers also occupied the rear seat of the Pick-up driven by Muhammad Iqbal deceased. During the transit, when the pickup crossed "Pakhwal turn" and reached a graveyard at about 8-15 p.m. Five culprits emerged from the graveyard, all armed with deadly weapons and stood on the road, forcing the driver to bring to halt the Pick-up. They on gun point directed the passengers to get down. Two of the armed men guarded the process of looting the passengers by the co-accused while standing on the road. The accused snatched Rs,200 from him and the other passengers were also deprived of their cash/valuables but he could not give the details about the same. He further disclosed that when Muhammad Iqbal driver showed resistance he was fired upon, as a result he was hit on his chest. Similarly, Mujahid Iqbal P.W. Was also hit on his head and got injured. According to him, all the accused were talking in "Hindko language". After consummation of the crime the accused fled away. The two injured were shifted to the hospital but Muhammad Iqbal driver succumbed to his injuries during the transit while Mujahid Iqbal was lying in semi unconscious condition: The occurrence was witnessed by him, by Mujahid Iqbal and the other passengers the victims of the robbery. This report was recorded in the casualty ward of Civil Hospital, Mansehra by Fazalur Rehman A.S.-I. Which is Exh.P.A./1 and on its basis case F.I.R.No,96 of the same date was registered at 2200 hours in Police Station City Masehra. The report was lodged at 2100 hours. 3. During the course of investigation, Imtiaz accused along with co-accused were suspected, thus he was arrested on 13-2-2005 and on his pointation the crime Kalashnikov was discovered and was taken into possession vide recovery memo. Exh.P.C./3. He disclosed some more facts which led to the arrest of Raj Muhammad appellant and a "kalakoff" was discovered on his pointation and instance on 22-2-2005 which was taken into possession vide recovery memo. Exh.P.C./10. On 13-2- 2005, after his arrest a 30 bore crime pistol was discovered at the pointation and at instance of Riaz appellant which, was taken into possession vide memo. Exh.P.E./4. Similarly while in police custody on pointation of Faqir Muhammad appellant one .30 bore crime pistol was discovered on 13-2-2005 and was taken into possession vide recovery memo. Exh.P.E./6. Appellant Javed was also arrested who led the police party to a place shown in sketch and on his pointation and instance another crime Kalashnikov was discovered on 13-2-2005 which was taken into possession vide recovery memo. Exh.P.E./5 and lastly on the pointation and instance of Siddique appellant, one more .30 bore crime pistol was discovered on 4-3-2005 which was taken into possession vide memo. Exh.P.C./13. 4. Accused-appellants (1) Faqir Muhammad, (2) Javed, (3) Imtiaz and (4) Riaz were arrested on 9- 2-2005. Accused Raj Muhammad was arrested on 22-2-2005 while Siddique appellant was arrested on 4-3-2005. During the interrogation Rs,1100 was recovered from Raj Muhammad accused on 25-2-2005 produced by his brother being the share in the looted money. Recovery memo. To that effect is Exh.P.C.12. From Siddique appellant Rs,11500 was recovered on 7-3-2005 and memo. To that effect is Exh.P.C.14. 5. During spot inspection blood-stained earth from the place of deceased was secured through memo. Exh.P.C.2 on 6-2-2005 and from the place of injured it was collected, the memo. To that
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effect is Exh.P.C./3. ' Through memo. Exh.P.C./4 two crime empties of 7.62 bore were collected from the spot. Similarly, two live rounds of the same bore were secured through memo. Exh.P.C./5. Through memo. Exh.P.C./6 two crime empties of 7.62 bore were collected from another place while two crime empties of .30 bore pistol were secured from the spot through memo. Exh.P.C./7. A spent bullet embedded in the earth was secured through memo. Exh.P.C./8. 6. Through memo. Exh.P.C./9 blood-stained clothes of Mujahid Iqbal injured P.W. And through memo. Exh.P.C./10 clothes of deceased driver were taken into possession. All these incriminating articles were sealed into separate parcels on its recovery in presence of the marginal witnesses including Muhammad Rizwan (P.W.12). 7. All the crime weapons so recovered and the crime empties secured from the spot were sent to the Arms Expert who after examination gave his report Exh.P.L. In the positive. In his opinion the said empties were fired from the crime weapons shown above. ' Accused Faqir Muhammad, Javed, Imtiaz and Muhammad Riaz were subjected to identification parade in District Jail, Mansehra through Muhammad Mushtaq (P.W.14) on 24-2-2005 which was conducted in presence of the Jail Superintendent by Mr. Asadullah' Khan Judicial Magistrate (P.W.18) and they were duly identified by the said P.W. In the said process. ' Accused (i) Muhammad Riaz, (ii) Javed, (iii) Faqir Muhammad and (iv) Imtiaz were produced before Mr. Sher Afzal Khan Marwat, learned Senior Civil Judge/J.MIC (P.W.12) on 14-2-2005 where they made clean breast confessions by admitting the present crime. The gist of the confessional statements is that on 5-2-2005 Raj Muhammad informed Muhammad Riaz accused through mobile phone of his brother bearing No,0300-5619512 to come to the house of Siddique accused after the evening who took with him .30 bore pistol and arrived there at the appointed time where Imtiaz, Raj Muhammad, Faqir Muhammad, Javed, Tasawar (P.O.) and Siddique appellant were already present duly armed with fire-arms and in the house of Siddique they deliberated, planned and arranged. For committing dacoity/robbery. According to the pre-planned programme, they went towards the graveyard when at the fateful time the Pick-up -carrying the victims came from Mansehra side which was forcibly stopped by five of them at gun point while the other two were guarding the area with the view to confront any resistance or counter action. During the looting of money from the passengers, the driver of the Pick-up started quarrelling with Imtiaz appellant and in that course Imtiaz fired at him with which he was hit while Raj Muhammad fired at another passenger who too was hit and got injured and then they left the spot along with looted money and concealed their weapons at different places which were later on recovered as stated above. The rest of the confessional statements are almost in the same sequence and in the same tone and tune with little variation. Similar is the confessional statement of accused Muhammad Siddique which was recorded on 8-3-2005 by Mr. Ishfaq Taj Senior Civil Judge/J.MIC, Mansehra (P.W.17) while Raj Muhammad accused confessed his guilt before Miss Hina Khan Civil Judge/J.MIC on 26-2-2005 wherein substantially the same story has been given. ' After recording the statements of P.Ws., issuance of warrant of arrest and proclamation against Tasawar, the absconding accused, and receiving the report of fire-arms expert and that of chemical examiner, charge-sheet was filed in the trial Court where initially the appellants were charged under section 17 (3) Offence of Haraba (Enforcement of Hudood) Ordinance, 1979 read with sections 302/148/149, P.P.C. And sections 6 and 7 of the A.T. Act as well as under section 324, read with section 149, P.P.C. However, the charge was amended by the trial Court on 19-5-2005 on the written request of the Public Prosecutor where after supplementary statements of all the accused were recorded under section 342, Cr.P.C. 8. At the trial prosecution examined 22 witnesses in all. 9. The entire case of the prosecution is based on the following pieces/items of evidence:--
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(i) Ocular account given by Muhammad Younas (P.W.10) the complainant, Muhammad Rizwan (P.W.12), Mujahid Iqbal injured (P.W.13) and Muhammad Mushtaq (P.W.14). (ii) The incriminating recoveries, i.e,, the crime weapons, the crime empties and a spent bullet. (iii) The positive report of the arms expert of F.S.L. Peshawar. (iv) The discoveries of the incriminating articles made/effected at the instance and pointation of the accused-appellants including the looted money. (v) The memo. Of identification parade of all the accused supported by Muhammad Mushtaq (P . W . 14) and Mr. Asadullah Khan J.MIC/CJ-VII Mansehra (P.W.18) who conducted the same. (vi) The chemical examiner report which is positive in respect of the blood-stained clothes of deceased and the injured P.W. Mujahid Iqbal and the blood-stained earth collected from the spot. (vii) Copies of F.I.Rs, of 13 registered criminal cases almost of the same nature (Exh.P.Ws.21/6 to 18 showing the previous conduct of the accused-appellant in which they were involved. (viii)The post-mortem report of the deceased, the medico-legal report in respect of Mujahid Iqbal (P.W.13) and the testimony of Dr. Qazi Ejaz Ahmad, MO, (P.W.4) in this respect. (ix) Testimony of Muhammad Sabir Khan IHC No,91 (P.W.5) who is marginal witness to the recovery memos. And pointation memo. Through which the crime weapons and the looted money were discovered and taken into possession from the accused at their pointation/presentation. (x) The confessional statements of appellant Exh.P.K. To Exh.P.K.16 and Exh.P.W.l1/1 to Exh.P.W.11/3 recorded and confirmed by Mr. Sher Afzal S.C.J/J.MIC (P.W.22), Miss Hina Khan J.MIC (P.W.11) and Mr. Ashfaq Taj SCJ/J.MIC (P.W.17). 10. In their replies to the questions put to them under section 342, Cr.P.C. All the accused-appellants have given stereotype statements regarding their confessional statements. They have alleged that these were procured through third degree method by the police after subjecting them to torture. They have shown ignorance about the recoveries and have also denied the recovery of crime weapons from them or at their pointation. 11. To the question as to what was their statement and why they were charged. Their replies are that they are innocent. God knows better that who committed the crithe and how and where the occurrence took place. They alleged that the occurrence has not taken place in the manner so put up and they were involved by the local police because it was under pressure from the superior officers to trace out the culprits and fix responsibility on any one whosoever he is and that they were not charged by name in the F.I.R and that some of the eyewitnesses were examined with a delay of 2 or 3 days particularly Mujahid Iqbal injured P.W. Who was examined on 9-2-2005 under section 161, Cr.P.C. 12. We have heard the learned counsel for the appellants, for the complainant and for the State and have gone minutely through the evidence/facts on record. 13. Learned counsel for the appellants raised the following contentions:-- (i) That there is a conflict between medical and ocular account as according to him the distance between the deceased and his assailants was one pace while on the entry wound blackening marks were found by the doctor while in the case of Mujahid Iqbal injured P.W. Distance is the same but no such marks were found on his entry wound. (ii) The identification parade was delayed as it was held on 24-2-2005 while the identifying witness Muhammad Mushtaq (P.W.14) name has not been mentioned in the F.I.R. Thus it has got no legal value. (iii) That under section 19 read with section 27 of the Anti-Terrorism Act, 1997, crime of this nature is to be investigated by joint investigation team to be headed by an Inspector while in this case substantial part of investigation has been carried out by an A.S.-I. Fazalur Rehman Khan. Thus the defect is incurable.
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(iv) That there are some conflicts in the confessional statements of the accused-appellants and that confession of Muhammad Javed, Faqir Muhammad, Imtiaz and Riaz has lost its evidentiary value as they were produced jointly before the same Magistrate Mr. Sher Afzal Khan Marwat (P.W.22). (v) That some of the eye-witnesses have made improvements at the trial, therefore, their testimony cannot be relied upon without independent corroboration which is not available in the case. (vi) That appellants Imtiaz and Siddique were shown in the charge-sheet as 18 years of age, thus they were juvenile at the time of occurrence and their trial held by the Anti-Terrorism Court stands vitiated. (vii) That the appellants were for the first time charged on the 4th day of occurrence and that too not by the complainant or the injured eye-witness. (viii)That the occurrence is of dark night, therefore, identification of , the accused by their features was impossible. (ix) That the accused remained in the police custody for many days, thus the chance of having been shown to Mushtaq and the other identifying P.Ws. Cannot be ruled out. (x) That the recovery witnesses are police officials, therefore, their testimony is not of much legal worth. (xi) That the recovery of blood from the spot is doubtful as it has been admitted by some of the witnesses that during those days it was raining. 14. To the contrary learned counsel for the complainant and for the State strongly defended the impugned judgment almost on the same reasons given therein. Counsel for the complainant further added that F.I.R. No,8, Police Station Saddar Mansehra dated 7-1-2005 shows that mobile phone of Muhammad Tufail was snatched and the same phone was used in the commission of the present crime for the assembling of the accused as it was recovered from Javed accused at the time of his arrest. He contended that no suggestion has been put to the Investigating Officer that because of any personal grudge or motivation he has falsely implicated the appellants in such a heinous crime and that delay in recording the confessional statements is not fatal to the prosecution case because of the extensive investigation and the accused being hardened criminals, therefore, could not be prepared to confess as early as possible and that the three eye- witnesses including the injured one have charged the appellants who have no previous blood feud or animosity with them. 15. While relying on the judgment of this Court in the case of "Faizur Rehman v. The State and others" (PLD 2002 Peshawar 6) they contended that in the absence of barring provision in the A.T. Act, this Court has the powers to enhance the sentences of appellants awarded by the trial Court as according to them the crime was committed in a well planned, pre-arranged and concerted manner and conjointly in prosecution of common object, therefore, each one of the accused is liable for the act of the other and the trial Court has misconstrued the law applicable to the facts of the instant case, in this respect 16. True that the occurrence took place at night time but it has come on record that the head lights of the Suzuki Pick-up remained lit after it was stopped. Moreover, the accused had gone close to each one of the A victims including the injured P.W. For personal search to rob them of their valuables and cash. Mujahid Iqbal injured (P.W.13) was not in a position to make a statement as the bullet has penetrated into his head and he was referred to the Neuro-surgeon A.M.C. Abbottabad for further management and treatment by the medical officer of Civil Hospital Mansehra. He was examined on the 4th day of the occurrence when by then his condition has become stable and was able to make a statement. He has stated that at the time of occurrence he was a student of second year (F.A.) in Government Degree College, Mansehra but due to vacation in the college, to
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earn livelihood he was working as conductor with the Toyota Wagon of one Ghulam Hussain Shah while the deceased Muhammad Iqbal, his father, was driving the Suzuki Pick-up in question which he boarded on the evening of occurrence for going to his village Potha. He has further stated that the headlights and other lights of the Suzuki Pick-up were lit at the time of occurrence. He has given the detailed description of the crime weapons possessed by the appellants at the relevant time. He has assigned respective positions to all the appellants. He has deposed that his father said to one of the culprits "Sain, I had identified you and will see in the morning" and at that moment his father caught hold of one of the dacoits at which all the dacoits came to the same place and joined with the dacoit who was caught hold of by his father and during that the "Chaddar" with which the dacoits-appellants had muffled their faces slipped down and he identified all the appellants in the head lights and other lights of the Suzuki Pick-up out of whom one was Faqir Muhammad alias Sain next his son Javed, Imtiaz, Riaz, Siddique, Raj Muhammad and Tasawar (P.O.) and it was at that time Imtiaz fired at his father who was hit on his chest and when he ran towards his father Raj Muhammad accused fired at him, as a result he too was hit onhis head and got injured. In the meanwhile a Wagon came from Potha side and seeing the headlights of the same, the accused decamped from the spot. He was subjected to cross-examination but nothing favourable to the defence could be brought on record from that process. Similarly, Muhammad Mushtaq (P.W.14) has given almost the same statement as given by Mujahid Iqbal. He, P.Ws. Naseer, Manzoor and Muhammad Younas complainant belong to one and the same village. He denied the defence suggestion that he has not witnessed the occurrence. The other eye-witness Muhammad Rizwan who is also marginal witness to the recovery memos. Exh.P.C./2 and Exh.P.C./3 through which blood from spot was recovered by the B Investigating Officer. He is witness to recovery memo. Exh.P.C./4, Exh.P.C./5, Exh.P.C.6 and Exh.P.C.8 through which crime empties and a spent bullet was recovered from the spot. This witness was also subjected to lengthy cross-examination but his testimony could not be shaken by the defence in a manner to make it unbelievable. Complainant Muhammad Younas has appeared as P.W. (P.W.10) who has almost given the same story as given by the other three eye-witnesses. He too was subjected to cross-examination but no material discrepancy was brought in his statement by the defence. 17. Accused (1) Faqir Muhammad (2) Javed (3) Imtiaz and (4) Riaz were arrested on 9-2-2005. Their physical custody was obtained from the Illaqa Magistrate and all the four made clean breast confessions about their guilt which were recorded by P.W.22 Mr. Sher Afzal Khan Marwat, SCJ/J.MIC on 14-2-2005. Accused Raj Muhammad was arrested on 22-2-2005 who confessed his guilt before Miss Hina Gul J.MIC (P.W.11) on 26-2-2005. Appellant Siddique was arrested on 4-3-2005 who made confession before Mr. Ishfaq Taj (P.W.17) SCJ/J.MIC on 8-3-2005. Exh.P.B./2 is the sketch of pointation memo. Through which at the instance and pointation of appellant Imtiaz, the crime pistol of .30 bore bearing No,6999 with four live cartridges was discovered and taken into possession. Through pointation memo. Exh.P.B./3 accused-appellants Faqir Muhammad and Javed father both and son while in police custody brought out the crime Kalashnikov with three live rounds Which they had concealed in the cattle shed adjacent to their house while through memo. Exh.P.B./4 one Kalashnikov with five rounds was recovered from accused Raj Muhammad alias Raja which he had concealed under his "chaddar" at the time of his arrest near Gujar Gali close to Mansehra to Phulra Road and vide memo. Exh.P.B./5 .30 bore crime pistol was recovered from Muhammad Siddique from his trouser fold with three rounds at the time of his arrest. The details of the recovery memos. In respect of the crime weapons either recovered at the instance/pointation of the accused-appellants or from their personal possession have been given in the earlier para. Of this judgment which have been supported not only by the Investigating Officer but also by Muhammad Sabir Khan (P.W.5) the marginal witness. Also the recovery memos. In respect of the
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production/recovery of looted money Exh.P.C./12, Exh.P.C./14 have been supported by Muhammad Sabir IHC (P.W.5) and Muhammad Akbar (P.W.20) respectively. 18. The medical evidence in respect of deceased Muhammad Iqbal and the injured P.W. Mujahid Iqbal confirms that both of them have sustained bullet injuries. 19. Now coming to the contentions of the defence counsel that blackening marks were present on the entry wound of the deceased while the distance was more than one pace, therefore, the conflict casts doubt on ocular account is an untenable one for the reason that keeping in view length of the barrel of the gun and the position at which it was held by the culprit could not be accurately judged by the P.W. In such a tense moment moreso it has been consistently held that site-plan is not a substantive piece of evidence and also for the reason that it has come in the evidence that when the fatal shot was fired, at the time all the appellants assembled at one point and were grappling with the deceased during which Imtiaz fired at him, therefore, accurate distance and that too at such time cannot be given. Moreover, no blackening was found on the shirt of the deceased. Thus the possibility that the medical officer has mistaken the clotted blood for blackening cannot be ruled out. 20. The objection that the identification parade was delayed and was carried out through Mushtaq (P.W.14), therefore, is to be rejected is also of no legal force because in this case many accused were involved whose physical custody was obtained for 4/5 days. The victims were passengers of different villages and the procurement of Mushtaq was to be made. Even otherwise the delay is not of that nature casting doubt on the credibility of the same when it was arranged inside the jail premises and the Jail Superintendent has also endorsed the same vide Exh.P.H./5. It was conducted by a Judicial Magistrate, namely, Mr. Asadullah Khan…
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