RAJA FAYYAZ AHMED (MEMBER).---This Criminal Appeal lids been directed against the judgment of the learned Federal Shariat Court at Lahore dated 15-6-1999 passed in Criminal Appeal No,156-L of 1998 and the Murder Reference No,9-L of 1998, whereby the appeal filed by the private respondents against their convictions and sentences awarded vide judgment dated 18-4-1998, was accepted; accordingly they were acquitted of charges, consequently the Murder Reference No,8-L of 1998 was answered in negative.
The respondents No,1, 2 and 3 were sentenced by the learned Additional Sessions Judge, Gujrat as under:-- Sl.
No,Name of accused conviction sentence
1. (i) Muhammad Ashraf
(ii) Haji AkhtarUnder Sections 149/302 (b), PPCEach sentenced to death
2. Qadar Dad Under section 149/302(b) Imprisonment for life
3. (i) Muhammad Ashraf
(ii) Haji Akhtar
(iii) Qadar DadUnder section 148 P.P.C. Each sentenced RI for three years and each to pay a sum of Rs, 1,00,000 as compensation to the legal heirs of the deceased in default whereof to further suffer R.I. for six months each.
Respondent, Muhammad Ashraf was acquitted of the charge under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, whereas, the remaining six accused persons were acquitted of all the charges by the learned additional Sessions Judge, Gujrat, hereinafter referred to as 'the trial Court'. Accused Tariq Mehmood, Sajjad and Imran including the other co-accused persons absconded during pendency of the trial and were declared as proclaimed offenders after completion of the required legal formalities.
2. The brief facts of the case are that case crime No,43 of 1995 was registered with police station Dinga, District Gujrat on 10-2-1995 with reference to Roznamcha Rappat No, 13/14 entered at 2-35 p.m. On the report of Mst. Kaneez Begum widow of Amanat Ali under sections 148/149/302, P.P.C.
Read with section 14 of Offences against Property (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as 'the Ordinance stating therein that she was married to deceased Amanat Ali about 13 years back with whom she was residing along with her six daughters at the given address. Four days back, sister's son of her husband namely Shahbaz s/o Nawaz and the son of one Faisal had a row between them and on the same day, there was exchange of abuses between her husband and Faisal's party, in respect of the above mentioned incident, which was patched up but said Faisal kept the same in his mind. On the above mentioned date at 1-30 p.m. Her husband left the house to offer Jumma prayers and she was also going behind her husband for some work.
It was alleged that no sooner her husband reached at a distance of 10 Karams, ahead of the house of one cobbler and reached near to the graveyard, all of a sudden Tariq armed with 7 MM rifle, Imran armed with a rifle, Sajjad armed with .222 bore rifle, Muhammad Ashraf armed with .12 bore gun, Akhtar alias Haji and Faisal both armed with 7 MM rifle, Qaiser, Afzal and Qadar Dad armed with rifles, Raham Dad, Nasurullah and Fateh Ali equipped with sotas, already present in the house of Bahawal Bakhsh emerged in the chowk in front of her husband and raised lalkara to kill Amanat Ali today, on which Tariq fired with his rifle at her husband, which hit on his chest and he fell down.
After that, Imran fired with his rifle, which also hit on the left side of the chest of her husband, whereas; Sajjad fired with his rifle which hit on the abdomen of her husband and thereafter Muhammad Ashraf fired with his .12 bore gun, which too hit on the left side of the abdomen of her husband while shot fired by Akhtar with his rifle hit on the left flank of her husband, Faisal fired with his rifle which hit below the left axila of her husband and; the shot fired by the accused Qaiser with his rifle also hit on the right flank of her husband. Afzal accused also fired with his rifle, which hit on the back of the chest of her husband, while the shot fired by Karamdad with his rifle, hit on the fingers of his right hand. Muhammad Ashraf again fired, which hit on the head of her husband and after that Raham Dad, Fateh Ali and Nasrullah repeatedly inflicted sota blows on the person of her husband, which hit his back. On her alarm, her daughter came to the spot with 12 bore licensed gun of the complainant's brother namely Muhammad Iqbal, which was snatched by accused Muhammad Ashraf. The complainant further disclosed in the report that the incident was also witnessed by Muhammad Bashir, Muhammad Aslam, Muhammad Nawaz and on their alarm, the accused by raising lalkara left towards their houses. Herhusband, while being taken to civil Hospital, Dinga, succumbed to injuries.
The motive of the crime was disclosed to be that about four days back a row had taken place between the nephew of her husband and son of Faisal, which led ,to the exchange of abuses between Muttali and her husband but was patched up, yet, on account of such reasons Faisal along with 12 armed persons by mutual consultation and conspiracy have killed her husband by means of firing and she came to the police station to lodge report along with her brother Muhammad Bashir after leaving the dead body of her husband in the hospital with Mian Khan and Muhammad Arshad.
The note written below the F.I.R. Shows that after registration of the F.I.R., the police officer/S.H.O.
Police station Dinga namely Farooq Hussain (P.W.10) commenced with investigation of the case.
3. After registration of the F.I.R., Exh.PE, P.W. Farooq Hussain S.H.O. (P. W.10) proceeded to Dinga Hospital, where he prepared injury statement Exh-PD of the deceased and submitted application Exh-PC for post-mortem examination. Inquest report Exh-PB of deceased Amanat Ali was prepared by the P.W., who dispatched the dead body to the mortuary of Tehsil Headquarter Hospital Kharian, through Muhammad Tufail and Zahid Hussain constables. Thereafter, he proceeded to the place of occurrence and recorded statements of the P.Ws and also inspected the site. He had secured blood stained earth from the place of occurrence vide memo Exh-PM and sealed it into a parcel.
Subsequent to the post mortem examination, Muhammad Tufail constable produced to him last worn blood stained clothes of the deceased on 11-2-1993, comprising of shirt, shalwar and bunian of the deceased, which were taken into possession by the said P.W. Vide Exh-PF and on 1-3-1995 he arrested all the accused persons nominated in the F.I.R. Accused Fateh Ali got recovered sota P-6 from his dera, which was taken into possession vide memo Exh P.H, the site plan of recovery of sota has been produced Exh-PH/l. Accused Qadar Dad also recovered sota P-5 from his residential room and was taken into possession by the said P.W. Vide memo. Exh-PK and the site plan of the recovery was produced as Exh-PK/1. On the same date accused Ashraf at his instance got recovered gun P-7 belonging to P.W. Muhammad Iqbal and was taken into possession vide Exh-PJ.
In respect whereof site plan of the place of recovery was also prepared. Accused Imran recovered rifle P-9 from his house taken into possession vide memo Exh-PN and the site plan ExhPN/1 in respect of the place of recovery was also prepared by the S.H.O. Accused Sajjad Ahmed on his pointation got recovered rifle P-10 from his house, taken into possession vide memo. Exh-PO and the site plan Exh-PO/1 was produced in respect of place of recovery of rifle. On 15-2-1995, Muhammad Iqbal P.W. Produced photo copy of the arms licence of his .12 bore gun, which was taken into possession by the said P.W. Vide Exh-PQ/1. The site plan of place of occurrence prepared by the draftsman was produced as Exh-PL. He also recorded statements of the above P.Ws. Under section 161, Cr.P.C. And after completion of investigation handed over the record and papers for submission of the challan in Court.
4. The learned Sr. ASC for the appellant and Sardar Muhammad Lateef Khan Khosa, ASC for the private respondents, whereas; Mr. Muhammad Zaman Bhatti, ASC for the State have been heard at length. The evidence available on record has been gone through minutely and carefully with the assistance of the learned Senior Advocate Supreme Court for the appellant, Mian Aftab Farrukh.
The learned counsel for the appellant contended that one of the important and substantial circumstances appearing in the prosecution evidence regarding recovery of licence .12 bore gun of Muhammad Iqbal (brother of the complainant) snatched by accused Muhammad Ashraf from the daughter of the deceased was not appreciated in its true perspective by the learned Federal Shariat Court nor due importance attached to such proved fact was considered by the learned Federal Shariat Court, which also fell in error in view of the given facts of the case by giving undue importance to the version of P.W. Muhammad Yousaf constable, who made obliging concession in favour of the accused persons, as regards the time of occurrence, and the post-mortem examination, while in fact; the dead body of the deceased was taken by P.Ws Muhammad Tufail and Zahid Hussain for autopsy and similarly on account of the minor inconsistencies between the medical evidence and the ocular account, unwarranted benefit was extended in favour of the accused persons although; the learned trial Court extended due benefit of the same to the acquitted accused persons namely Fateh Ali, Muttali Khan, Naseer Ahmed, Qaiser Muhammad, Afzal and Rahman Dad keeping in view of the nature of injuries suffered by the deceased on his person. According to the learned counsel, it was wrongly concluded by the learned Federal Shariat Court that the incident had taken place much before the given time and the F.I.R. Was lodged after deliberations and consultations in order to involve all the adult male members of accused family except living abroad has not been borne on record because admittedly the complainant Mst.
Kaneez Begum was an illiterate village woman having no other male member of her family available, without loss of any time and having no other option but to immediately report the matter to the police which she did. He further submitted that the place of occurrence was at a distance of four miles from the police station and the hospital at a distance of sixty miles, therefore, it could not be considered in the given facts and circumstances of the case that the report was lodged after consultation by the complainant lady. The learned counsel strenuously argued that the ocular account was fully corroborated from the medical evidence, as disclosed in the F.I.R. And was also proved but the learned Federal Shariat Court on wrong conclusions resulted due to misappraisal of evidence, acquitted the private respondents on the charge. Hence, the impugned judgment is liable to be reversed by upholding the judgment passed by the trial Court. The learned counsel at this stage submitted that it was a day light occurrence and the F.I.R. Was also promptly lodged in which specific roles were attributed to each of the nominated accused person, inasmuch as; no specific plea was taken by the accused persons in their statements recorded under section 342, Cr.P.0 about their alleged false involvement in the case, as well as; the plea of self-defence even did not emerge from the case. Also, the private respondents did not dispute the occurrence, therefore, it could not be said that they were falsely involved in the case. The learned counsel submitted that the learned Federal Shariat Court was required to have taken due notice of all the reasons found favour with the learned trial Court finding the private respondents guilty on the charge, but was not done so. He in support of his arguments placed reliance on the judgments of this Court reported in (1) PLD 1967 SC 167 (2) 1981 SCMR 182 (3) PLD 1981 SC 265 (4) 1985 PCr.LJ 349;
(5) PLD 1991 SC 575, (6) PLD 1992 Lah. 314, (7) 1994 SCMR 1, (8) 1996 SCMR 3, (9) PLD 1997 SC 408, (10)
2002 SCMR 1578, (11) 2003 SCMR 1391 and (12) 2005 SCMR 1568.
5. On the other hand, the learned ASC for the private respondents by controverting the contentions put forth on behalf of the appellant by her learned counsel, contended that all the available male adult family members of the private respondents after deliberations and consultations were implicated in the case by the complainant, which is apparent from the prosecution evidence and the data available on record that the complainant did not spare even the old aged persons of the family of the accused party, such as; Feteh Ali and Muttali Khan aged 88 and 90 years respectively and even a young boy of the family of the accused persons namely Qaiser Mahmood aged about 16 years was involved falsely in the case. To supplement his view point as argued before us, the learned counsel for the private respondents submitted that inquest report and the injury statement prepared by P.W.10 clearly indicate that in the report, the accused persons were nominated in the sequence in which their names were mentioned in these documents, which by no stretch can be taken as a matter of co-incidence and only those male members of the family of the accused persons living abroad in connection with their jobs, apparent from the record were left over, therefore, it cannot be said That the F.I.R. Was lodged without deliberations and consultations.
According to the learned counsel, the evidence available on record has been scrutinized and appraised in depth by the learned Federal Shariat Court in view of the well settled principles of criminal administration of justice to which no exception can be taken. Further, the learned counsel contended that the private respondents have earned acquittal in the light of the prosecution evidence after due appraisal by the learned Federal Shariat Court, which cannot be lightly interfered with in view of some minor inconsistencies or discrepancies highlighted, having no material bearing on the fate of case. The learned counsel maintained that Muhammad Iqbal P.W. i,e, the stated licence holder of the .12 bore gun P-7 allegedly recovered at the instance of accused Muhammad Ashraf (not living jointly with the complainant in her house) resident of a remote village was not produced at the trial by the prosecution nor the daughter of the complainant, who allegedly brought the gun to the place of was produced nor even cited as P.W. In the case to corroborate the version of the complainant, who did not mention the name and the age of her daughter stated to have brought the gun and allegedly snatched by accused Ashraf, hence; implicit reliance on the stated recovery of the gun was not placed by the learned Appellate Court in the overall facts and circumstances of the case, suffering from inherent doubts. According to the learned counsel, the F.I.R. Is a dishonest and stinking document, the prosecution evidence suffers from blatant contradictions, as well as; the ocular account is in conflict with the medical evidence.
Hence, the learned Federal Shariat Court for substantial and sound reasons based on evidence passed the impugned judgment to which no exception can be taken. He has placed reliance in support of his arguments on the reported judgments i,e, (1) PLD 1959 SC109, (2) PLD 1985 SC 11, (3)
1988 SCMR 940, (4) 1991 SCMR 2220, (5) 1992 SCMR 96, (6) PLD 1993 SC 251 (7) 1993 SCMR 585, (8)
1993 SCMR 828, (9) 1995 SCMR 535, (10) 1995 SCMR 599, (11) 1995 SCMR 1627, (12) 1998 SCMR 624,
(13) 1999 SCMR 223, (14) 2001 SCMR 308.
6. Mr. Muhammad Zaman Bhatti, the learned Advocate Supreme Court for the State submitted that a Court is always supposed to do justice to the parties before it after appraising the entire evidence keeping in view all the facts and circumstance of the case and the well settled principles of criminal justice. According to the learned counsel the conflict if any; appearing between ocular account and the medical evidence, the former can be preferred provided the same is confidence inspiring, convincing and worth credence. However, he submitted that merely because no appeal was preferred by the State or the complainant against the acquittal of some of the co-accused by trial Court, would not furnish any valid reason nor per se would result to acquit the other accused persons found guilty on the charge. The learned ASC placed reliance on the judgments of this Court reported in (1) PLD 1964 SC 26 (2) PLD 1966 W.P. Pesh. 255 (3) PLD 1969 SC 293, (4) PLD 1976 SC 452, (5) PL D1980 SC 225, (6) 1991 SCMR 1622, (7) PLD 1994 SC 178, (8) 1994 SCMR 1614 (9) PLD 1995 SC 46, (10) PLD 1996 SC 138, (11) PLD 1998 SC 1445, (12)1999 SCMR 2722 and (13) 2000 SCMR 1758. The learned counsel in the last submitted that the principle of sifting grain from the chaff applies in the instant case and the points not urged before the learned Federal Shariat Court could not be allowed to be raised for the first time before this Court. He, however, submitted that he supports to the judgment passed by the learned Federal Shariat Court.
7. The contentions put forth on behalf of the parties learned counsel have been considered in the light of the evidence available on record, gone through minutely as above stated, with the assistance of the learned counsel for the appellant including the impugned judgment. The case law cited by the parties learned counsel has also been perused and considered.
The prosecution case comprises of ocular account given by P.W. Mst. Kaneez Bibi complainant/ widow of the deceased Amanat Ali and Muhammad Aslam (P.W.4), medical evidence and the recoveries i,e, gun allegedly used during the incident by accused Ashraf and .12 bore shotgun alleged to have brought at the place of incident by Ifza Amanat d/o deceased from her house and allegedly snatched by accused Asliraf, which during the course of investigation of the case were statedly recovered at the instance of accused Ashraf from his house and the other pieces of circumstantial evidence, such as; blood stained earth, blood A stained clothes of the deceased taken into possession after autopsy of the dead body of the deceased conducted by Dr. Farooq Bhangush (P.W.2).
The motive of the crime disclosed by the complainant in her report Exh-PE was that about four days prior to the incident, the sister's son of her deceased husband had a row with the son of Faisal over which Muttali and her deceased husband had exchanged abuses, which was patched up but for such reason, the accused persons have committed the crime and murdered her husband. It was alleged in the report that Bashir, Aslam and Nawaz had witnessed the occurrence but out of these cited witnesses only Aslam was produced by the prosecution as P.W.4 at the trial. As regards, motive the complainant in her testimony stated that 3/4 days prior to the instant murder, Shahbaz, a nephew of her deceased husband, had a quarrel with the son of accused Mutalli over which there was exchange of abuses between the deceased and Mutalli and the matter was patched up between the parties. She admitted in cross-examination that on account of settlement arrived at between the parties there was no ill will or grudge subsisting between the parties. P.W. Muhammad Aslam in cross-examination admitted that his father and the father of the deceased were inter se first cousins. As regards motive, the complainant contrary to her version as set up in the F.I.R. Stated in cross-examination part of her statement that Sajjad and Asjad had caught Qaiser Mahmood (accused) on the day of occurrence, which eventually led to the incident. Muhammad Aslam P.W.4 has stated nothing about the motive. The learned counsel for the appellant has not made any comments as regards evidence adduced at the trial in respect of the motive, which in our considered view, has properly been dealt with by the learned Federal Shariat Court. The complainant in her testimony has supported to the version as contained in the F.I.R. And also maintained the sequence of the order in which the accused were nominated in the F.I.R. And the roles assigned to them each, which in the ordinary course after lapse of more than one year can hardly be expected to be given in the same order and sequence including the weapons used by each accused and the seats of injuries by an illiterate village woman. In cross-examination, she has described the inter se relationship of the accused persons and has also mentioned about the minor family members of the accused party and the male adult members of the accused party living abroad in connection with their jobs. The learned Federal Shariat Court, on having taken into account the fact relating to the other adult male members of the accused party, has rightly come to the conclusion that all the male adult members of the family of the accused party were involved in the case by attributing specific roles to each of the accused persons except the minors and those living abroad, which even during the course of submission made on behalf of the appellant has not been disputed. Ifza Amanat daughter of the deceased, who stated to have brought the licensed .12 bore gun of the brother of the complainant namely Muhammad Iqbal to the place of occurrence has not been produced or cited as a witness by the prosecution nor as above noted Bashir and Nawaz were produced at the trial, as well as, no explanation or any reason has been advanced for non-production of these witnesses. During the arguments on query by the Court, the learned counsel for the appellant stated that the said daughter of the deceased was a girl of tender age. Be that as it may, the complainant particularly and Muhammad Aslam P.W.4 did not state about the age of said girl nor gave any reasons for her non production in the light of the prosecution case in which, the fact; regarding recovery of .12 bore licensed gun of Muhammad Iqbal was shown to have been made to connect the accused Ashraf with the commission of crime or at least of his presence at the spot, who allegedly snatched the gun from the girl which was subsequently during the course of investigation recovered at his instance from his house. The arms licence of the gun in the name of Muhammad Iqbal was, however, produced at the trial.
Muhammad Iqbal i,e, the licence holder of the gun was not produced at the trial to corroborate the version of the complainant as explained by her in cross-examination that 3/4 days prior to the occurrence, Muhammad Iqbal had brought his gun to her house. She admitted that her said brother resided in village Dhola at a distance of about 8/10 miles from the place of occurrence and her house is situated at a distance of 15/12 Karams from the place of incident. She has not given any reason as to what had prompted her brother to bring his licensed gun to her house for keeping it there, therefore, the bringing of the gun by her said daughter Ifza Amanat (not examined) to the place of occurrence and allegedly snatched by accused Muhammad Ashraf cast serious doubt on the veracity of her version on the point.
According to her version, as contained in the F.I.R. And the deposition at the trial, accused Tariq, Imran, Sajjad, Akhtar; Muttali, Qaiser, Afzal and Qadar Dad were armed with rifles and accused Muhammad. Ashraf armed with a .12 bore gun, who while standing in the same file and order, fired each with their weapons at the deceased and for the second time Ashraf, fired in the last with his 12 bore gun, which hit the deceased on his head and after that accused Nasrullah, Fateh Ali and Raham Dad inflicted sota blows, which hit on different parts of the body of the deceased. She stated, as also alleged in the F.I.R. That first fire was made by Tariq accused which hit on the chest of the deceased, who thereupon fell down on the ground. According to the complainant all the above mentioned accused persons armed with rifles and gun were standing in one line at a distance of one feet from each other and the accused Tariq, first in the line was present at a distance of 10/12 feet from the deceased. P.W. Muhammad Aslam (the other ocular witness) also deposed in line on the point, who stated that on receiving the first shot fired by accused Tariq, deceased fell down on the ground. The version of the ocular witnesses, if be believed that the deceased on receiving the first gunshot injury on his chest, had fallen on the ground, be his chest upwards or downwards to the ground, the other described gunshot injuries suffered by the deceased should have been in all probabilities landed on one side of his body on different parts throughout and not on various parts of his body as mentioned in the post-mortem report and deposed by Dr. Farooq Bhangush P.W.2 at the trial. No pellet was found as having penetrated deeply or superficially hit on the person of the deceased, by the medical officer and had the fire made from a distance of 10/12 feet by accused Ashraf with his .12 bore gun, it should in all probabilities to have hit and caused multiple wounds on the person of the deceased. No gunshot wound was found on the head of the deceased and conversely the medical evidence shows that the injury suffered by the deceased on his head was caused by blunt weapon. The learned Federal Shariat Court has dealt with the medical evidence in juxtaposition with the ocular account of the above mentioned witnesses and has rightly come to the conclusion that the ocular account was in conflict with the medical evidence, to which no exception can be taken and there is no reasons available on record to disbelieve the medical evidence, as against the evidence of P.Ws. i,e, the ocular witnesses not otherwise, capable to implicit reliance in absence of independent corroboration, lacking in the case.
As per medical evidence in all ten firearm injuries including an exit wound were found present on the person of the deceased, whereas; three wounds were found on the dead body of the deceased caused by blunt weapon and a firearm wound on the back of the deceased and the lumber region, which negates the version of the ocular witnesses that after the deceased had fell down on receiving shot fired by accused Tariq, the other accused persons one after the other fired a single shot at the deceased and lastly accused Ashraf fired second shot which too hit the deceased on his head. The autopsy report shows that the solitary injury suffered by the deceased on the back of head was caused by blunt weapon. The manner of the firing attributed to each of the accused stands falsified by medical evidence, which created serious doubt even about the presence of the ocular witnesses on the spot at the time of incident.
The complainant stated that on the day of occurrence at about 1-30 p.m. The deceased left the house for mosque to offer Jumma prayers and she was going behind her deceased husband for some work but has not offered any explanation nor gave any reason as to why she too left the house and was going behind her husband. Similarly, the other ocular witness, P.W. Muhammad Aslam has not given any reason of his presence in the house of one Bashir situated near to the place of occurrence. He did not state as to how he happened to come to the spot and witnessed the occurrence. He admitted in cross-examination that his house is situated at a distance of about six hundred meters from the place of occurrence and that he did not disclose the reason of his presence in the house of Bashir in his statement recorded under section 161, Cr.P.C. This witness also stated that the deceased was on his way to mosque for offering Jumma prayers whose wife was behind him at some distance, can hardly be believed to be true for the simple reason that at this juncture, according to his own showing he was present inside the harelip of Bashir. This witness even did not state as to why he had gone to the house of Bashir, therefore, in view of the foregoing discussion, his presence in the house of Bashir at the relevant time and having witnessed the crime also appears to be highly doubtful.
It is pertinent to note that no empty was secured from the place of wardat. Hence, the recovery of the rifles, .12 bore shotgun and the sotas not even blood stained were worth of any credence. The ocular account, recoveries, and the other circumstantial evidence has been correctly dealt with, scrutinized and reappraised by the Federal Shairat Court in its true perspective and no material part of the prosecution evidence appears to have been misread, misappraisal or misconstrued by the learned Federal Shariat Court.
8. The observations made by the learned Federal Shariat Court, as regards the delay in lodging the report and the incident having taken the place much earlier to the given time even if be treated as not exactly correct could not have resulted into varying the impugned judgment for want of any substantial bearing on the fate of the case.
9. The contentions raised by the learned Advocate Supreme Court for the appellant are devoid of any substance in the peculiar circumstances of the case discussed above. The entire evidence has been correctly appraised, scanned and dilated upon in depth by learned Federal Shariat Court, is not open to any interference.
10. In view of what has been stated above, this Criminal appeal being without any substance is dismissed.