PLJ 2012 FSC 47
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present:
Shahzado Shaikh, Dr. Fida Muhammad Khan & Rizwan
Ali Dodani, JJ.
MUHAMMAD ASLAM
alias ACHA & others--Appellants
versus
STATE and
another--Respondents
Crl. Appeal No.
2/L of 2007 and M.R. No. 3/L of 2008, decided on 20.7.2011.
Pakistan Penal Code,
1860 (XLV of 1860)--
----S.
302(b)--Conviction and sentence--Challenge to--It was a night occurrence, but
it took place in the light of bulb--Presence of electricity and related details
had not been denied or questioned--It is not surprising that organized gang of
four habitual offenders could accomplish their assault in shortest possible
time, as they already knew their victim by name from whose house they could
loot their booty particularly overpowering that Specific person, i.e., deceased
who in fact died in their firing while he was manhandled, as such criminals do
to the inmates of their targeted premises--Technical objections that the I.O
had not followed the Police Rules during investigation--There was delay in
arranging identification parade, do not adversely affect the ocular account,
with all related corroborations--Although Judicial Magistrate was not produced
in the Court as a witness, as he had gone abroad, but his Reader testified
necessary details of the identification parade--Although the accused were not
convicted by the trial Court u/S. 17(4) Offences Against Property (Enforcement
of Hudood) Ordinance, VI of 1979, but had been convicted and sentenced u/S. 412
PPC--There was no enmity between the parties and there was no malafide in
lodging the FIR as the FIR was against unknown accused--If there was any
malafide on the part of the complainant party, they would have specifically
nominated the accused in the FIR--Appellants had not been able to make out any
case for interference with the impugned judgment by High Court--Impugned
judgment delivered by the trial Court was upheld--Convictions and sentences
awarded to appellants were maintained and appeal was dismissed. [Pp. 63, 64 & 65] A, B, D & E
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
103--Requirements--Detailed requirements u/S. 103 Cr.P.C, do not seem to be
fatal to the point of prosecution, as the recoveries were made on the
confessions of accused, at their instance, from their premises, and at their
own pointation--In such cases private witnesses could hardly be expected to
come forward willingly, yet necessary requirement of witness besides police has
been complied with. [P. 64] C
Syed Badar Raza
Gillani & Mehr Zauq Muhammad Sipra, Advocates for
Appellants.
Dr. Muhammad
Akmal Saleemi, Advocate for Complainant.
Ch. Muhammad
Ishaque, D.P.G. for State.
Date of hearing:
20.7.2011.
Judgment
Shahzado Shaikh,
J.--Appellants Muhammad Aslam alias Acha, Muhammad Ashraf alias Pappu, Shafaqat
alias Shaqqi and Dilbar alias Kaka have through this appeal challenged the
judgment dated 30.11.2006 delivered by learned Additional Sessions Judge,
Multan in Murder Case No. 10-S of 2004 &
Murder Trial No. 15-S of 2004, whereby they were convicted and sentenced as
under:--
(i) Accused Muhammad Aslam:
Offence Sentence
Under Section
302-B of the Pakistan
Penal Code
Death
Sentence and to pay compensation of Rs. 50,000/- to the legal heirs of deceased
Falaksher under Section 544-A of the Code of Criminal Procedure. The
compensation was ordered to be recovered as arrears of land revenue.
Under
Section 452/34 of the Pakistan
Penal Code.
Seven years
rigorous imprisonment with fine of Rs. 5,000/- or in default thereof to further
undergo three months simple imprisonment.
Under Section
412 of the Pakistan
Penal Code
10 years
rigorous imprisonment with fine of Rs. 5000/- or in default thereof to further
undergo three months simple imprisonment.
Under Section
324/34 of the Pakistan
Penal Code
10 years
rigorous imprisonment with fine of Rs. 5,000/- or in default thereof to further
undergo three months simple imprisonment. He was also directed to pay
compensation of Rs. 25,000/- to the injured PW Mst. Budhai. The amount of
compensation was ordered to recover as arrears of land revenue.
(ii) Accused Muhammad Ashraf, Shafqat &
Dilber:
Offence Sentence
Under Section
302-B/34 of the Pakistan
Penal Code
Life
imprisonment each and to pay compensation of Rs. 50,000/- each to the legal
heirs of deceased Falaksher under Section 544-A of the Code of Criminal
Procedure.
The amount of compensation was ordered to be recovered as arrears of land
revenue.
Under
Section 452/34 of the Pakistan
Penal Code.
Seven
years rigorous imprisonment each with fine of Rs. 5,000/- each or in default
thereof to further undergo three months simple imprisonment each.
Under Section
412 of the Pakistan
Penal Code
10
years rigorous imprisonment each with fine of Rs. 5000/- each or in default
thereof to further undergo three months simple imprisonment each.
Under Section
324/34 of the Pakistan
Penal Code
10
years rigorous imprisonment each with fine of Rs. 5000/- each or in default
thereof to further undergo three months simple imprisonment each. They were also
directed to pay compensation of Rs. 25,000/- each to the injured PW Mst. Budhai
under Section 544-A of
the Code of
Criminal Procedure. The amount of compensation was ordered to recover as
arrears of land revenue.
All the
sentences were ordered to run concurrently. Benefit of Section 382-B of the
Code of Criminal Procedure was given to accused Shafqat, Dilber and Muhammad
Ashraf.
The learned
Additional Sessions Judge, Multan
also moved a murder reference, registered in this Court as Murder Reference
No. 3/L of 2008 (The State Vs. Muhammad Aslam), which has been put up for confirmation
of death sentence along with the main appeal.
2. The prosecution case in brief is that on
15.10.2003 the complainant Ghulam Hussain PW.4 recorded complaint Ex.PA which
was registered as FIR No. 212/03 Ex.PA/1 dated 15.10.2003 at police station
Qadirpur Rawan, District Multan, that he and his
brother-in-law Falak Sher were residing in two separate houses having a common
Courtyard. In the night between 14/15.10.2003 at about 1.00 a.m. he woke up on the barking of dogs. He
opened the door and saw outside where three persons with muffled faces armed
with fire-arm weapons, whose some features were
mentioned in the crime report, were present. The two persons caught him by the
arms, while the third one put his pistol on his temporal region. One person
asked him about Falak Sher and he told him that he was sleeping in the adjacent
room. They searched the room. Another person having medium height and built,
wearing white clothes was also present there, who was making instructional
signs to the other accused. Two persons entered into the other room and dragged
Haji Falak Sher to the Courtyard and murdered him by fire of pistol. On hearing
firing, Mst. Budhai Mai, mother of the complainant, was attracted to the spot.
The accused also gave injuries to her with sota blows. On hearing alarm and
firing Muhammad Nawaz, Muhammad Aslam and other neighbours also were attracted
to the spot upon which the accused fled away. However, cloth, covering faces of
the accused, fell down, and he alongwith the PWs identified them in electric
light. The complainant further stated that the accused also took away cash Rs.
14,000/-, gold ornaments weighing 8« tolas i.e. kantey, bangles, necklace, nath
(nose ring) and two finger rings. Hence the complainant got registered FIR No.
212/03 dated 15.10.2003 at Police Station Qadirpur Rawan under Sections 302/392
of the Pakistan Penal Code.
3. Investigation ensued as a consequence of
registration of crime report. Muhammad Ashraf Sub-Inspector
PW. 18 undertook the investigation. He recorded complaint/statement
Ex.PA of the complainant at Tataypur where he was present on patrol duty and
sent the same to the Police Station for registration of the case. He visited
the place of occurrence, inspected the dead body, prepared
inquest report Ex.PD/2 as well as injury statement Ex.PD/3. He inspected the
spot, prepared site-plan Ex.PZ, secured blood stained earth from the spot and
took the same into possession through recovery memo. Ex.PF. He took into possession
one crime empty P-5 through recovery memo. Ex.PG as well as a
bulb P-6 through recovery memo. Ex.PH. He recorded statement of the PWs
under Section 161 of the Code of Criminal Procedure as well as supplementary
statement of the complainant at the spot and sent the dead body to the
mortuary. After post-mortem examination, Muhammad Ramzan constable produced
before him last worn clothes of the deceased i.e. bunian P-3 and shalwar P-4
alongwith a copy of the post-mortem report which he took into possession
through recovery memo. Ex.PE and recorded statements of the
PWs under Section 161 of the Code of Criminal Procedure in this respect.
He got prepared scaled site-plan Ex.PB, Ex.PB/1 and Ex.PB/2 from draftsman and
recorded his statement under Section 161 of the Code of Criminal Procedure. On
07.12.2003 he recorded statements of Khadim Hussain Moharrar/Head Constable and
Muhammad Afzal constable under Section 161 of the Code of Criminal Procedure.
On 10.12.2003 he received report of the Chemical Examiner. On 09.02.2004 he
summoned accused Muhammad Aslam, Muhammad Ashraf and Shafqat from jail in order
to join them in investigation. He prepared Fard Nishan Dahi Ex.PQ, Ex.PR &
Ex.PS. On 16.03.2004 he recorded statement of Muhammad Hanif Moharrir and Zaheer
Ahmed constable under Section 161 of the Code of Criminal Procedure. Shafqat
alias Shaki and Ashraf alias Pappu, during interrogation, made disclosure that
police of Police Station Makhdoom Rashid had already recovered .12 bore gun and
.30 bore pistol from them on 20.02.2004. He obtained the copies of recovery
memo. of the said weapons from Irshad-ul-Hassan
Sub-Inspector of Police Station Makhdoom Rashid and added offence under Section
411 of the Pakistan Penal Code. Aslam accused made disclosure and led the
police party to his house and got recovered a sum of Rs. 2000/- P-7/1-2 and one
gold bangle P-8 from a residential room of his house which were taken into
possession through recovery memo. Ex.PJ and site-plan of the place of recovery
Ex.PJ/1 was prepared. Ashraf accused got recovered currency notes valuing Rs.
1750/- as well as two gold kantey from his house which were taken into
possession through recovery memo. Ex.PK and site-plan of the place of recovery
Ex.PK/1 was prepared. Shafqat accused got recovered a sum of Rs. 2700/- and one
gold ring P-18 from his house which were taken into possession through recovery
memo. Ex.PL and site-plan of place of recovery Ex.PL/1 was prepared. He
recorded statements of PWs under Section 161 of the Code of Criminal Procedure
regarding recoveries. The currency notes and gold ornaments were identified by
Muhammad Nawaz and Muhammad Aslam. PWs at the time of
recovery. On 22.02.2004 he recovered .30 bore pistol
P-18 on the pointation of Aslam accused from the cattle shed and the same was
taken into possession through recovery memo. Ex.PM and
prepared site-plan of the place of recovery Ex.PM/1. He sent all the
accused to judicial lock up on 23.02.2004. On 08.03.2004 he interrogated Dilbar
accused who was already in police custody of Police Station Budhla Sant in
connection with another case and sent him to jail on 09.03.2004 for his
Identification Parade. On 07.04.2004 he interrogated Dilbar accused in the
presence of the PWs who got recovered a sum of Rs. 2000/- P-19/1-2, gold nath
P-20 and two silver bangles P-21/1-2 from his house which were taken into
possession through recovery memo. Ex.PN and prepared
site-plan of place of recovery Ex.PN/1. He also recovered a .30 bore
pistol P-22 alongwith two live bullets P-23/1-2 on the disclosure of Dilbar
accused which were taken into possession through recovery memo. Ex.PP and
site-plan of the place of recovery Ex.PP/1 was prepared. He recorded statement
of Muhammad Hanif Goldsmith under Section 161 of the Code of Criminal Procedure.
He got medically examined Mst. Allah Budhai, mother of the complainant on
06.06.2004. After completion of investigation the Station
House Officer submitted report under Section 173 of the Code of Criminal
Procedure before the trial Court on 15.04.2004 requiring the accused to face
trial.
4. The learned trial Court framed charge against
all the accused on 11.11.2004 under Section 452 read with Section 34 of the
Pakistan Penal Code as well as under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979
read with Section 34 of the Pakistan Penal Code and under Section 412 of the
Pakistan Penal Code. After recording statements of four prosecution witnesses,
the learned trial Court framed the charge afresh against the accused under
Section 452 read with Section 34 of the Pakistan Penal Code, under Section
17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, VI of
1979 read with Section 302/34 of the Pakistan Penal Code as well as under
Section 412 Section 324/34 of the Pakistan Penal Code. The accused did not
plead guilty and claimed trial.
5. The prosecution produced eighteen witnesses
to prove its case. The gist of the deposition of the witnesses is as follows:--
(i) PW. 1 Khadim Hussain Moharrir/Head
Constable stated that on 15.10.2003 the Investigating Officer handed over to
him one sealed parcel of blood-stained earth, one sealed parcel of crime empty,
last worn clothes of the deceased and a bulb which he kept in Malkhana for safe
custody and on 21.11.2003 he handed over parcel of blood stained earth and
parcel of crime empty to Muhammad Afzal constable for onward transmission to
the office of the Chemical Examiner and Forensic Science Laboratory.
(ii) PW.2 Muhammad Afzal constable had
delivered one scaled parcel of blood stained earth in the office of the
Chemical Examiner and another scaled parcel of crime empty in the office of
Forensic Science Laboratory on 22.11.2003 which were handed over to him by
Khadim Hussain Moharriron 21.11.2003.
(iii) PW.3 Muhammad Hanif Moharrir/Head
Constable stated that on 22.02.2004 the Investigating Officer handed over to
him a sealed parcel of pistol for keeping in safe custody and for onward
transmission to the office of the Forensic Science Laboratory, Lahore and on
07.03.2004 he handed over the said sealed parcel to Zaheer Ahmed constable for
onward transmission to the office of the Forensic Science Laboratory, Lahore.
(iv) Ghulam Hussain complainant appeared as
PW.4 and endorsed the contents of his complaint Ex.PA. He further stated that
after recording complaint, the police accompanied him to the spot. He checked
the house of his brother Dr. Rab Nawaz and found missing from the said house a
single barrel .12 bore gun alongwith licence, eight unstitched ladies suits and
silver ornaments consisting of pazaib, har & churian which were also taken
away by the accused. He identified accused Muhammad Aslam, Muhammad Ashraf and
Muhammad Safdar in identification parade held at District Jail, Multan. He stated that
Muhammad Aslam was the person who caught hold of him and subsequently brought
Falak Sher holding his right arm and made a fire at Falak Sher, Muhammad
Ashraf, who inflicted injury with butt of his pistol to Mst. Budhai resulting
in fracture of her right arm and he had also caught Falak Sher from his right
arm and Shafqat accused was the person who was wearing white colour clothes at
the time of occurrence. He also identified accused Dilbar in another
identification parade who put pistol on his temporal region. He also identified
gold ornaments; a gold bangle, pair of Kantey, Nath, two silver bangles, one
gold ring and a sum of Rs. 8,450/-.
(v) PW.5 Mst. Budhai, injured witness, gave
details of the occurrence and supported the prosecution version.
(vi) PW.6 Muhammad Aslam stated that he
alongwith Muhammad Nawaz PW reached at the place of occurrence and saw the
occurrence. He identified accused Aslam, Ashraf and Shafqat with their
respective roles in the identification parade while in second identification
parade he identified accused Dilber with his specific role. He alongwith
Muhammad Nawaz had also identified dead body of Falak Sher deceased at the time
of autopsy. He attested recovery memos. Ex.PE through Ex.PT and his statements
were recorded by the police under Section 161 of the Code of Criminal Procedure
regarding recoveries.
(vii) PW.7 Muhammad Ramzan constable had
escorted the dead body of Falak Sher to R.H.C. Hospital, Qadirpur Rawan for
post-mortem examination. The Medical Officer directed him to take the dead body
to Nishtar Hospital, Multan. After post-mortem examination the
doctor handed over to him bunian P-3, shalwar P-4, which he produced before the
Investigating Officer who took the same into possession through recovery memo.
Ex.PE and he alongwith, Muhammad Nawaz and Aslam attested the said recovery
memo. and the Investigating Officer recorded his
statement under Section 161 of the Code of Criminal Procedure.
(viii) PW.8 Haq Nawaz Chohan, Judicial Magistrate
1st Class had conducted identification parade of accused Dilber on 25.03.2004
at District Jail, Multan
wherein complainant Ghulam Hussain as well as PWs Muhammad Nawaz and Muhammad
Aslam had identified accused Dilber.
(ix) PW.9 Irfan Hayat draftsman had prepared
scaled site-plan in triplicate Ex.PB, Ex.PB/1 and Ex.PB/2 and handed over to
the Thanedar who recorded his statement under Section 161 of the Code of
Criminal Procedure.
(x) PW. 10 Doctor Muhammad Akram had
conducted post-mortem examination on the dead body of Haji Falak Sher on
15.10.2003 and observed as follows:--
"Eyes and mouth were closed,
lying supine mortuary table. Rigor mortus and post mortem staining were
present, wearing white Bunian and light brown shalwar (blood stained). I found
the following injuries on his person:--
1. A circular lacerated wounds of entry
3/4 x 3/4 cm on the left lateral side of abdomen, burn skin surrounding area 3
cm in circle, 23 cm blow left nipple and 22 cm from the umbilicus.
2. A lacerated wound of exit, 1 x 2/4 cm
star shape on the back side of the right chest 16 cm from the mid line and 6 cm
blow the interior boarder of right scapula. Burning and tear corresponding cut
also present on the Bunian which was marked, signed and handed over to the
police.
Cranium and
spinal Cord, was found healthy.
Thorax. There was fracture
of 8th rib of right side of chest exit wound present full of blood. Rest of the
organs Were healthy except blood vessels which were ruptured.
Abdomen. In walls there
was penetration of bullets. Left side was full of blood and it was entry wound.
Stomach, Lever and spleen and left kidney were found ruptured from upper side
and right kidney was normal. Bladder was full of urine and rest
of the organs were found normal.
In my opinion
the cause of death was due to excessive hemorrhage and shock. Injury No. 1 was
caused by fire-arm which damage the vital organ and
was sufficient to cause the death in ordinary course of nature, and the same
was anti mortem. The probable time between injury and death was within one hour
and between death and post-mortem was about 16 hours. After post-mortem
examination I handed over dead body of deceased, post-mortem examination report
and police papers and last worn clothes of the deceased to the police. Ex.PD is
the correct carbon copy of my post-mortem Report No. 5-A/2003, which is in my hand bears my signatures and seals. Ex.PD/1 is the visual
diagram showing the seat of injury. Ex.PD/2 is inquest report, Ex.PD/3 is the
injury statement/police application, Ex.PD/1 to
Ex.PD/3 also bears my signatures."
The doctor also
medically examined Mst. Budhai, injured PW, on 6.6.2004 and observed as
follows:
"She was
old woman, weak built, average height. She was fully conscious, well oriented
time and space. Having B.P 130/80 MMHG, pulse 80 per minute, resp: 22 p/m. The examinee presented earlier also on 21.10.2003
with severe pain and swelling of distal third of right fore-arm near wrist
joint with a history of blunt weapon injury inflicted six days prior than. She
was treated and X-rayed accordingly vide this RHC Reg. No. 17293 dated
21.10.2003, but before receiving further treatment, she left on her own,
against medical advice. On the said date, she was brought by the police (with
police docket dated 5.6.2004 in case FIR No. 212/03 dated 15.10.2003 of Police
Station Qadirpur Rawan) for examination and certification of the fractured
right fore-arm inflicted as per her statement as a result of the old injury
mentioned in the para supra.
Injury
No. 1.
Examinee complaints of dull pain of distal third of right fore-arm near wrist
joint which aggravates even on grabing the effected area with a firm hand grip,
by lifting/pulling some weight or by using the right hand for routing daily
manual house hold activities. Advised X-ray right fore-arm
(AP and lateral views).
Injury No. 1 was
kept under observation for X-ray and clinical assessment. According to X-ray
Ex.PW dated 21.10.2003 there was fracture in Ulna bone and according to second
X-ray Ex.PW/1 dated 7.6.2004 Ulna bone fracture was healed, and also the shadow
of the fracture was present in both these X-ray. The injuries were caused with
blunt weapon. Ex.PX is the correct carbon copy of M.L.R of Mst. Budhai Mai
which is also in my hand and bears my signature."
(xi) PW. 11 Abdul Qadir Head Constable had
drafted FIR Ex.PA/1 on receipt of complaint Ex.PA sent to him by Muhammad
Ashraf Sub-Inspector through Ejaz Hussain constable.
(xii) PW.12 Ghulam Rasool Assistant
Sub-Inspector stated that on 04.12.2003 he alongwith Irshad-ul-Hassan
Sub-Inspector and Abdul Sattar Constable was present at 18-Kassi Budhla Road in connection with
investigation of case FIR No. 303/03 registered at Police Station Makhdoom
Rasheed, Multan.
At about 5.00 a.m. one man
armed with .12 bore single barrel gun came there and
on seeing police party he tried to returned back but he was apprehended at the
spot. Later on his name was transpired as Shafqat alias Shaki. The police took
into possession the said gun P-1 alongwith a live cartridge P-2 through
recovery memo. Ex.PC. The witness and Abdul Sattar constable attested this
recovery memo. Ex.PC.
(xiii) PW.13 Zaheer Ahmed constable had deposited
one scaled parcel in the office of the Chemical Examiner on 08.03.2004 which
was handed over to him by the Moharrir/Head Constable on 07.03.2004.
(xiv) Saeed Ahmed Reader appeared to testify the
signatures and handwriting of Rana Saleem Ahmed Khan, Special Judicial
Magistrate who had gone abroad. He had seen application for holding
identification parade Ex.PY and order thereon Ex.PY/1 which was signed by, Rana
Saleem, Ahmed Khan, Special Judicial Magistrate. He
also identified his hand writing and signatures on proceedings of
Identification Parade Ex.PY/2.
(xv) PW.15 Muhammad Hanif Goldsmith had
identified gold ornaments Kantey (ear ring) P-14/1-2, one Nath (gold) P-20, one
bangle (Churi) P-8, one finger ring P-18 and two silver bangles P-21/1-2 which
were prepared by him.
(xvi) PW.16 Ghulam Hussain Assistant
Sub-Inspector stated that on 18.12.2003 he got conducted identification parade
of Ashraf alias Pappu, Aslam alias Acha and Shafqat alias Shaki accused through
Rana Saleem Magistrate. On his application the Magistrate delivered copy of
identification parade to him. He also got conducted identification parade of
Dilber accused through the Magistrate on 25.03.2004. On his application the
Magistrate delivered copy of identification parade to him.
(xvii) PW.17 Liaquat Ali Sub-Inspector had taken
custody of accused Muhammad Ashraf alias Pappu, Muhammad Aslam alias Acha and
Shafqat alias Shaka accused from the police of Police Station Makhdoom Rashid
where they were confined in some other case. On 08.12.2003 he submitted an
application Ex.PY to the Illaqa Magistrate for holding identification parade.
(xviii) PW.18 Muhammad Ashraf Sub-Inspector had
undertaken the investigation whose detail has already been mentioned in
Paragraph 3 of this judgment.
6. The prosecution tendered in evidence report
of the Chemical Examiner regarding blood-stained earth Ex.P.AA, report of
Serologist regarding blood-stained earth Ex.P.BB and report of Forensic Science
Laboratory Ex.P.CC and closed its evidence on 21.07.2005. Thereafter the
learned trial Court recorded statements of the accused under Section 342 of the
Code of Criminal Procedure on 25.07.2005. The accused denied the allegations
levelled against them and claimed their innocence. Muhammad Aslam accused
stated in reply to question "Why this case against you and why the PWs
have deposed against you?" as under:
"The case
against me is false and is the result of police Karwai. The police in order to
show its efficiency assured the complainant party, that I was the real culprit,
therefore, the PWs have deposed falsely against me. Infact it was a blind
murder. The culprits were not identified by the PWs. The alleged looted
ornaments were not proved by the prosecution, allegedly recovered from me and
my co-accused. It is on the file that the ornaments which were alleged
recovered from me and my co-accused were identified by a gold smith PW after
2/3 months of the preparation of the gold ornaments by the gold smith. The recovery of ornaments were shown to be recovered from the
accused persons after about 6/7 months. The PWs are interested witnesses and
related to each other, therefore, they have deposed falsely against me and my
co-accused."
Accused Shafqat alias
Shaqi, in reply to the above-mentioned question, relied upon the answer of his
co-accused Muhammad Aslam while accused Dilber stated as under:
"The police
has malafidely involved me in the present case on the asking of Aslam etc., my
co-accused. I am innocent. The case against me is to show the police Karwai
only. I offer the PWs to decide the case on oath of Holy Quran, as I am
innocent."
7. Accused Dilber recorded his statement on oath
under Section 340(2) of the Code of Criminal Procedure on 27.07.2005. He stated
that he was arrested by the police of Police Station Budhla Sant. Ghulam
Hussain, Aslam, Nawaz and Ashraf Sub-Inspector came there and met the Station
House Officer. They inquired from him about the occurrence upon which he stated
that he had not committed the offence and he offered them special oath
regarding innocence. The police tortured him at Police Station where he
detained for one month without producing him before any Magistrate. Then his
identification parade was held wherein Ghulam Hussain, Aslam and Haq Nawaz PWs
identified him. He remained on physical remand for eleven days and nothing was
recovered from his possession or on his pointation and the recoveries were
falsely implicated upon him. Muhammad Hanif and Ghulam Hussain came to him at
Police Station and they offered him to become approver but he refused to become
the same. The witness further stated that during the days of occurrence, he was
at Islamabad
and when he came to his village, the police of Police Station Budhla Sant
arrested him when he was going to Islamabad
for labour. The police recovered an iron hook from him which was used for
lifting the luggage.
8. The accused produced Muhammad Afzal
Mohrrir/Head Constable as DW. 1 who gave details of police proceedings and stated
that the recovered articles which were handed over to the Moharrir but the same
were not mentioned in the relevant register.
9. We have gone through the file. Evidence of
the prosecution witnesses as well as statements of the accused have been perused. The relevant portions of the impugned
judgments have been scanned.
10. During the course of arguments, learned
counsel for the appellants in support of their contention raised following
points:--
(i) That appellant Muhammad Ashraf is not
nominated in the FIR.
(ii) That it is a dark night occurrence.
(iii) That the occurrence lasted about 7/8
minutes.
(iv) That at the time of occurrence, the faces
of the accused were muffled and the murder of Haji Falak Sher cannot be
attributed to a specific accused as specific role of firing has not been
attributed to any particular accused.
(v) That when the faces of the accused were
unmuffled they were fleeing and it was not possible to capture the glimpses of
the accused. Therefore, their identification becomes highly doubtful.
(vi) That the identification parade was
conducted after 02 months of the occurrence and even after one month of the
arrest of the accused Muhammad Aslam and one and a half months after arrest of
the other accused.
(vi) That exposure of the accused was made
to the complainant as well as PWs during their detention at the Police Station.
(vii) That the I.O. has not followed the Police
rules during investigation.
(viii) That the dummies were not all alike.
(ix) That the accused had raised objection
during the identification parade before the learned Judicial Magistrate that
they were kept in wrongful confinement in the Police Station, they were exposed
to the witnesses, their photographs were also taken before they were taken out
of the Jail in Police vehicle for identification parade and the complainant
party was also in the same vehicle.
(x) That learned Judicial Magistrate, Rana
Saleem Ahmed Khan was not appeared in the Court as a witness but instead his
Reader Saeed Ahmed appeared as PW.14 to identify his signature and handwriting.
(xi) That Mst. Budhai Mai (PW-5) did not
participate in the identification parade to identify the accused.
(xii) That no role was assignee by the witnesses
particularly by PW-5 Mst. Budhai. She admitted that the accused were shown to
her by the Police before identification parade.
(xiii) That MLR was not issued immediately after
the alleged injuries to PW-5 Mst. Budhai. It was after 08 months when her MLR
was produced and even Docket for the MLR was not issued immediately after the
occurrence. The report also does not connect to the injuries.
(xiv) That the recovered empty was not marked.
(xv) That requirements of Section 103 Cr.P.C.
were not fulfilled.
(xvi) That the empty collected from the spot was
not sent to the Forensic Science Laboratory, immediately.
(xvii) That the empty was sent to FSL on 22.11.2003
after the accused were arrested.
(xviii) That the accused were acquitted by the
learned trial Court under Section 17 (4) of the Offences Against Property
(Enforcement of Hudood) Ordinance, VI of 1979.
(xx) That the entire case is silent as to how
the accused were arrested and linked with the case.
Learned counsel
for the appellant relied upon 2007 SCMR 525.
11. Learned counsel for the Complainant and
learned D.P.G for the State raised the following points:--
(i) That the FIR is promptly lodged.
(ii) That the accused were identified at the
time of occurrence in the light of bulb and their faces were unmuffled during
the course of occurrence, and their structures were also reported in the FIR.
(iii) It was not a case of simple dacoity under
Section 392 PPC but it is a case of Qatl-e-Amd as the accused especially asked
about Haji Falk Sher and dragged him from the room and murdered him out of the
room in presence of other inmates of the house.
(iv) That the structural features,
alongwith the role of holding pistol and firing by accused Muhammad Aslam, who
fired on the deceased Haji Falak Sher and murdered him, reported in the FIR,
match with him.
(v) That there was no enmity between the
parties and there is no mala fide in lodging the FIR as the FIR is against
unknown accused. If there was any mala fide on the part of the complainant
party, they would have specifically nominated the accused in the FIR.
(vi) That all the weapons of offence i.e
pistols and crime empty were sent to Forensic Science Laboratory which have been vetted; particularly the pistol used by accused
Muhammad Aslam has been matched with the empty.
(vii) That the accused were rightly identified
by the witnesses.
(viii) That the accused are hardened criminals and
previously history sheeters of various Police Stations particularly Police
Station Qadirpur Rawan and Police Station Makhdoom Rasheed.
On query, learned counsel for the
appellants produced copies of some judgments whereby the appellants have been
acquitted in the cases, referred to by the learned counsel for the Complainant,
above.
(ix) That the ocular account is corroborated
by the medical evidence.
(x) That the doctor did not conduct the MLR
of Mst. Budhai with the advice that there was no Police docket regarding
conducting her medical examination, which was not issued by the Police to the
injured victim, which in fact shows Police leanings towards the accused.
(xi) That the accused in their statements
under Section 342 Cr.P.C. have taken a sterio-typed stance and they have not
given any reason of their false implication.
12. We have considered the arguments by the
learned Counsel for the parties in the light of record available on the file.
13. The occurrence took place in the house of the
complainant and the inmates of the house are natural witnesses. All the
accused/appellants in furtherance of their common intention committed
Qatl-e-Amd of Falak Sher, caused injuries to Mst. Budhai Mai, mother of the
complainant, and took away Rs. 14,000/- and gold ornaments from the house of
the complainant.
14. Mst. Budhai Mai had duly identified the
accused during the course of Qatl-e-Amd and her statement corroborates with the
medical evidence as well as circumstantial evidence. She identified the
accused/appellants before the trial Court at the time of recording of her
statement. She was cross-examined at length but her statement was not
shattered. It was proved from the evidence that she was injured on the spot and
her MLR is available on the record. Although Mst. Budhai Mai was medically
examined by the doctor some time after the occurrence, as docket for the doctor
was not issued by the Police to her and the doctor showed inability to her to
conduct her medical examination, but the medical evidence corroborates the
version of the complainant party. Identification parade of appellants Muhammad
Aslam, Shafqat and Ashraf was conducted by Rana Muhammad Saleem, Judicial
Magistrate. Although the said Magistrate did not appear as prosecution witness
as he had gone abroad, his Reader namely Saeed Ahmed appeared as PW. 14 and
testified all necessary aspects in proof of the proceedings regarding
identification parade. Dilber, appellant was also identified by the complainant
and PWs during identification parade conducted by Haq Nawaz Chohan, Judicial
Magistrate PW.8. Although the accused were with muffled faces at the time of
occurrence, but when the accused were fleeing from the place of occurrence, the
cloth, covering the faces of the accused, fell down and they were identified by
the complainant and the witnesses in the light of bulb. The FIR was recorded
promptly within about two hours of the alleged occurrence without any
deliberation and consultation. The structural descriptions of the accused
persons have been mentioned in the FIR. The role of Aslam appellant/accused
regarding murder of Falak Sher deceased has been established from the record as
he got recovered .30-bore pistol, on his confession, pointation and recovery of
the same at his own instance from his premises. The said pistol was duly
matched with the crime empty, on five points of similarity, which was sent to
Forensic Science Laboratory vide report of Forensic Science Laboratory, Lahore
Ex.PCC. The recoveries of crime weapons as well as robbed articles from the
accused/appellants on their pointation also establish the offence.
15. The statements of the appellants were
recorded under Section 342 Cr.P.C. but they neither proved any enmity with the
complainant party nor pointed out any cogent reason due to which the
prosecution witnesses deposed against them and falsely implicated them in this
case. They only stated that the police had falsely implicated them in this case
just to show their efficiency. Appellants Muhammad Aslam, Muhammad Ashraf and
Shafqat did not record their statements under Section 340(2) Cr.P.C. But Dilber
appellant recorded his statement under Section 340(2) Cr.P.C. wherein he stated
that he had falsely been implicated in this case, however, he admitted in his
examination-in-chief that Ghulam Hussain, Aslam and Nawaz PWs identified him
during the identification parade. In his cross-examination he admitted that he
had also been falsely involved in twelve other cases of almost the same nature
and Aslam, Ashraf and Shafqat were also accused in the said cases. This shows
that the appellants/accused worked as a gang of hardened and desperate
criminals who were playing with the lives and properties of citizens.
16. Not nominating the accused each with minor
specific detail of role of each accused shows that the complainant party who
were awakened at about might night to suffer deadly attack, in which one of
their man was killed and a woman was injured, gave a natural account of the
occurrence as witnesses in the face of death and coercion, to the extent it
could be expected in those circumstances. In spite of being bewildered and
baffled they gave natural account of structural features of the accused and
with specific concentration on the accused who committed violence by firing and
killing the deceased and injuring the woman, and also the accused who directed
the assault on the spot. Although it was a night occurrence,
but it took place in the light of the bulb. Presence of electricity and
related details have not been denied or questioned. It is not surprising that
organized gang of four habitual offenders could accomplish their assault in
shortest possible time, as they already knew their victim by name from whose
house they cold loot their booty particularly overpowering that Specific
person, i.e., deceased Haji Falak Sher, who in fact died in their firing while
he was manhandled, as such criminals do to the inmates of their targeted
premises.
17. Although initially at the time of occurrence,
faces of the accused were muffled, but dragging of the accused and interference
or resistance by the victims, it is quite natural that they were unmuffled and
consequently they could be identified with some possible details of specific
roles. The structural features, alongwith the role of holding pistol and firing
by accused Muhammad Aslam, who fired at deceased Haji Falak Sher and murdered
him, reported in the FIR, match with him.
18. Technical objections that the I.O. has not
followed the Police Rules during investigation, that the dummies were not all
alike, that there was delay in arranging identification parade, do not
adversely affect the ocular account, with all related corroborations. Although
learned Judicial Magistrate was not produced in the Court as a witness, as he
had gone abroad, but his Reader Saeed Ahmed testified necessary details of the
identification parade.
19. Mst. Budhai Mai (PW-5) did not participate in
the identification parade, but she remained unshaken in her identification of the
accused before the trial Court.
20. Although learned counsel for the
accused/appellants stated that the recovered empty was not marked, but
statement of PW.18 Muhammad Ashraf, SI/IO, who prepared the parcel Ex.PG, and
the FSL Report shows the Mark-C.
21. The detailed requirements under Section 103 Cr.P.C, do not seem to be fatal to the point of prosecution,
as the recoveries were made on the confessions of accused, at their instance,
from their premises, and at their own pointation. In such cases private
witnesses could hardly be expected to come forward willingly, yet necessary
requirement of witness besides police has been complied with. In this regard
following is quite relevant:
Procedure
required to be followed in course of a search in pursuance of warrants issued,
was entirely different from recovery effected on the
pointation of the accused and that procedure of Ss. 101, 102 & 103, Cr.P.C.
was not at all applicable to such recoveries effected on pointation of accused
of which a disclosure was made in course of investigation. Recovery
under Art. 40 of Qanun-e-Shahadat, 1984, could never be termed as search
for the reason that it was never conducted under a warrant nor was it conducted
at one particular place as pin-pointed in the warrant. Place of recovery under
Art. 40 of Qanun-e-Shahadat, 1984, is always in the mind/knowledge of accused
and he, in course of investigation discloses that and agrees to lead and get
the same recovered and thereafter while in custody, leads, points the place and
gets recovered incriminatory objects as link to main offence. [1998 PCr.LJ 996]
22. Learned counsel for the accused/appellant
stated that the empty recovered from the spot was not sent to the Forensic
Science Laboratory, immediately. But there does not seem to unnecessary delay
after recovery of weapon of offence, i.e., the pistol on 22.02.2004, as
necessary steps were taken on 07.03.2004, and the same were delivered to FSL on
08.03.2004.
23. Although the accused were not convicted by
the learned trial Court under Section 17(4) Offences Against
Property (Enforcement of Hudood) Ordinance, VI of 1979, but have been convicted
and sentenced under Section 412 PPC. There was no enmity between the parties
and there is no mala fide in lodging the FIR as the FIR is against unknown
accused. If there was any mala fide on the part of the complainant party, they
would have specifically nominated the accused in the FIR.
24. The contention of the learned counsel for the
accused/appellant that the entire case is silent as to how the accused were
arrested and linked with the case, is not correct, as the I.O. has stated that
on basis of `information' in this regard, and through liaison with Police
Station Makhdoom Rashid, he got access and arranged interrogation of the
accused, who were already in custody there.
25. The upshot of the above discussion is that
the appellants have not been able to make out any case for interference with
the impugned judgment by this Court. Resultantly the impugned judgment dated
30.11.2006 delivered by the learned trial Court is upheld. The convictions and
sentences awarded to appellants Muhammad Aslam, Muhammad Ashraf, Shafqat alias
Shaki and Dilbar alias Kaka by the Additional Sessions Judge, Multan vide
judgment dated 30.11.2006 in Murder Case No. 10-S of 2004, Murder Trial No.
15-S of 2004 are maintained and the appeal (Cr. Appeal No. 2/L of 2007) is
dismissed.
The Murder
Reference No. 3/L/2008 is confirmed and answered in affirmative.
26. The above are the reasons for our short order
passed on 20.7.2011 in the open Court.
(A.S.) Appeal
dismissed
