Kh. Muhammad Sharif, C.J.--Masood Ahmad, Aamir Hussain and Zahoor Ahmad along with 5 others (acquitted accused) involved in case Bearing FIR No,.63-04 dated 24.04.2004 under Sections 302, 34 PPC, Registered at Police Station Chountra District Rawalpindi anct were tried by the learned Addl. Sessions Judge, Rawalpindi who vide judgment dated 30.11.2006 convicted and sentenced the appellants as under:- Zahoor Ahmad Convicted under Section 302(b) PPC and sentenced to death. He was also directed to pay compensation of Rs, 50,000/- to the legal heirs of deceased under Section 544-A Cr.P.C. or in default of payment of fine to undergo six months S.I.
Masood Ahmad & Aamir Hussain Convicted under Section 302(b) PPC and each sentenced to imprisonment for life. Both were also directed to pay compensation of Rs, 50,000/- each to the legal heirs of deceased under Section 544-A Cr.P.C. or in default of payment of fine to undergo six months S.I. Benefit of Section 382-B Cr.P.C. was also given to them.
2. This judgment will dispose of Crl. Appeal No, 474 of 2006 titled Masood Ahmad etc. Vs. The State"
(Appeal against conviction), Crl. A. No, 486 of 2006 titled Mst.Kaneez Fatima Vs. Muhammad Nisar etc" (Appeal against acquittal), Crl. Revision No, 299 of 2006 titled Mst. Kaneez Fatima Vs. Zahoor Ahmad" (for enhancement of compensation and sentence) and Murder Reference No, 387 of 2006 for confirmation or otherwise of death sentence of the appellant Zahoor Ahmad, sent by the learned trial Court.
3. Brief facts of the case as disclosed in the complainant Ex.PE are that the complainant is resident of Kolian Gohru. She further stated that she along with another younger widow sister Mehmooda Akhtar and brother reside jointly. On 24.4.2004 she along with Mehmooda Akhtar, brother Abdul Sattar Niazi were going in the street to go to their house situated outside the village. When they.reached in front of the house of Aamir Hussain son of Mustafa at about 7.15 p.m. and Abdul Sattar was a bit ahead of both sisters, from, the Courtyard of the house of Aamir Hussain, Noor Jehan widow of Mustafa raised lalkara that Abdul Sattar Niazi not be allowed to go alive, whereupon from the house of Aamir Hussain, Zahoor Ahmad, Aamir Hussain armed vith pistols, Masood, Nisar, Jabbar son of Noor Elahi armed with pistols, Babar, Noor Jehan and Qamar, son, widow and daughter respectively of Mustafa, armed with dandas and three other unknown empty handed persons who could be identified if are confronted, came in the street raising lalkara. Zahoor made straight fire upon Abdul Sattar Niazi hitting on his left temple and Abdul Sattar fell down.
Then Aamir, Masood,, Jabbar, Nisar made straight fires with their respective pistols hitting on the various parts of the body of Abdul Sattar. Noor Jehan, Qamar and Babar caused injuries on the legs and other parts of body with their dandas while the empty handed persons kept on raising lalkara.
The complainant and her sister Mehmooda Akhtar did not go ahead due to fear and made noise standing rear side and they witnessed the occurrence. On hearing the noise people of the village gathered and accused persons fled away from the site. Abdul Sattar succumbed to the injuries at the spot. Hence the FIR Ex.PE/1.
The motive mentioned is that about one year back Zahoor caused bullet injury to his maternal nephew namely Babar had got registered case against Abdul Sattar Niazi which was patched up subsequently but the accused persons had concealed grudge.
4. The investigation of this case was taken over by PW-.11 Mushtaq Ahmad S.I, who was posted at Police Post Chak Beli Khan as Incharge. On 24.04.2004 on receipt of information about the murder reached at the place of occurrence along with police officials and found the dead body of Abdul Sattar Niazi deceased. He recorded the statement Ex.PE and sent the same to Police Station for registration of case. He prepared injury statement Ex.PJ, inquest report Ex.PK and sent the dead body to mortuary for post-mortem under the escort of Muhammad Akram. He prepared site-plan Ex.PL, took into possession blood-stained earth vide memo. Ex.PA. He took into possession 6 empty cartridges P. 1/1-6 and a bullet led and took the same into possession vide memo. Ex.PB. He took into possession a magazine and 7 live cartridges vide memo. Ex.PC. He also took into possession last worn clothes of the deceased vide memo. Ex.PM, prepared injury statement Ex.PN, got prepared site-plan Ex.PD and Ex.PD/1. He arrested Aamir Hussain on 5.5.2004. He arrested Masood and Zahoor Ahmad on 24.5.2004. Masood accused while in police custody lead to the recovery of pistol .30 bore which was taken into possession vide memo. Ex.PG, and prepared its rough site-plan Ex.PG/1.
He also got recovered pistol .30 bore from Zahoor which was taken into possession vide memo.
Ex.PH and prepared its site-plan as PH/i. He completed all the formalities and prepared the challan under Section 173 Cr.P.C.
5. At the trial, the prosecution in order to prove its case produced 11 witnesses in all, thereafter, learned APP after tendering in evidence report of Chemical Examiner Ex.PO, and closed the prosecution case, then, the statement of the accused was recorded u/S. 342 Cr.P.C. in which he pleaded false implication. However, after conclusion of trial, the appellants were convicted and sentenced as mentioned above.
6. Learned counsel for the appellants in support of this appeal submits that on the same evidence 5 accused have been acquitted by the learned trial Court; that infact it was the complainant party who was the aggressor; that the injury of Aamir Hussain has been suppressed; that it is a case of two versions and if both the versions are put in juxta position, the version of appellant Aamir Hussain given by him in reply to Question No, 2 in his statement under Section 342 Cr.P.C. seems to be more plausible and convincing one; that the appellant party had filed a private complement against the complainant party, though, it ended in acquittal; that neither the crime empties nor weapons were sent to the Fire Arms Expert for the reasons that those crime empties were fired by the complainant party; that on the same evidence Muhammad Nisar, Abdul Jabbar, Babar Hussain, Mst. Noor Jehan and Mst.Qamar-un-Nisa have been acquitted by the learned trial Court but the appellants have been convicted; that it is not a case of death sentence against Zahoor Ahmad; that there is a document on the file of this case, which is injury statement regarding Aamir Hussain appellant and the doctor who conducted the medical examination was not produced by the prosecution with mala fide intention. Lastly, the learned counsel for the appellants prayed for their acquittal.
7. Learned DPG assisted by the learned counsel for complainant submits that the version given by the appellant Aamir Hussain is not believable, which is fabricated one and after-thought; that the appellant party has admitted the time of occurrence; that no empty was recovered from the house of appellants; that there is no sign of bullet or pellet in front of house and gate of appellant Aamir Hussain. A question has been put by this Court to the learned counsel for complainant whether Aamir Hussain was injured in this case or not? The answer is in negative; that according to PW-6 Mst.Kaneez F.tima and PW-7 Mst.Mehmooda Akhtar, Aamir Hussain was not injured at the spot; that collection of blood-stained earth and crime empties from the spot has been supported by the Investigating Officer; that there was no need on the part of the deceased to go to the house of accused; that infact it was the appellant party who were armed with fire-arms and fully prepared that in case the deceased and complainant party passes through the house, they will attack them; that Injury No, 9 on the person of deceased bears blackening and in the site-plan the distance between deceased and appellant is 5 feet; that the appellants' side has not narrated the nature of injury allegedly received by Aamir Hussain apellant; that it is a day time occurrence, both parties are known to each other, so, there is no question of mistaken identity; that it is a case of promptly lodged FIR; that the prosecution has proved its case against the appellants; that the pistols recovered from Zahoor Ahmad and Masood Ahmad were sent to the Fire Arms Expert but the report was negative; that the dead body was still lying in the street when the police came at the spot and recorded statement of the complainant; that 6 empties were recovered from the spot; that report of Forensic Science Laboratory is negative but the ocular account is trust worthy. Reliance is placed upon 2006 SCMR 1392 and 2004 SCMR 872; that the appellant party failed to discharge the onus on them as Aamir Hussain had taken specific and special plea in this case; that the appellants have not produced single witness from the locality. Lastly, it is prayed that c6nviction and sentence awarded to the appellants be maintained and those who were acquitted be also convicted and sentenced in accordance with law.
8. We have heard the learned counsel for the parties at great length and gone through the record with their able assistance.
9. Before we give the reasoning of our judgment in this case we want to make it clear that Courts are sitting to deliver justice to people. We cannot close our eyes if some negligent or inefficient counsel does not bring on record actual facts of the case but those are available with us, - we take judicial notice of it in order to reach at just conclusion of the case.
10.The occurrence in this case has taken place on 24.4.2004 at 7.15 a.m. Matter was reported to the police at the spot at 9.00 a.m. Formal FIR was recorded at 9.45 a.m. The complainant in this case is Mst. Kaneez Fatima PW-6, sister of the deceased Abdul Sattar Niazi while PW-7 Mst.
Mehmooda Akhtar is real sister of Mst. Kaneez Fatima. In all 8 accused were named, three were shown unknown, five have been acquitted by the learned trial Court namely Muhammad Nisar, Abdul Jabbar, Babar Hussain, Mst. Noor Jehan and Mst.Qamar-un-Nisa. Appeal against their acquittal bearing Crl. A. No, 483 of 2006 is also pending and it was also ordered to be heard along with this appeal. Crl. Rev. No, 299 of 2006 has also been filed by the complainant for enhancement of compensation and sentence and it shall also be disposed of through this judgment.
11.From the place of occurrence blood-stained earth through Ex.PA was taken into possession. Then 6 empties of .30 bore pistol were taken into possession vide memo. Ex.PB. A magazine along with lead bullet and 7 live bullets was also taken into possession vide memo. Ex.PC. The arrest of the appellant has been shown by the police at 5.5.2004. No recovery was affected from him while Masood Ahmad and Zahoor Ahmad, according to police were arrested on 24.5.2004. Both appellants Masood Ahmad and Zahoor Ahmad got recovered pistols on 28.5.2004 vide memo.
Ex.PG and Ex.PH respectively.
12.Dr. Manzoor Ahmad Sahi PW-9, conducted post-mortem examination on the dead body of deceased Abdul Sattar Niazi on 24.4.2004 at 3.00 p.m. There were four fire-arm injuries on his person while the Injuries No, 5 & 6 were with blunt weapon. Time between injury and death was immediate and death and post-mortem was 8 hours.
13.On the one hand there is version of prosecution furnished by two lady witnesses namely Mst.
Kaneez Fatima and Mst. Mehmooda Akhtar. On the other hand there is version of Aamir Hussain appellant in his statement recorded under Section 342 Cr.P.C. which he has taken in reply to Question No, 2, which is reproduced below:-- "It is incorrect. In fact on 24.4.2004 at about 7.15 a.m. I along with my mother Mst. Noor Jehan and my sister Qamar was present in our parental house meanwhile Abdul Sattar Niazi deceased armed with pistol, Ijaz Hussain armed with pistol and Yasir Mehmood armed with pistol came in the street in front of our house abusing us whereupon Ijaz seen them over the wall. Abdul Sattar abused me and asked me to come out as they 'have come to settle the accounts with me. I restrained them to abusing but the above said persons continued to abuse me whereupon I was forced to open the gate of my house so that they might be stopped. As soon as the gate was opened by me Abdul Sattar and his companions forcibly entered and trespassed into my house and Abdul Sattar deceased fired at me with his pistol hitting on my left knee. Abdul Sattar took me by the neck whereupon Yasir fired at me which hit the deceased instead of me and he fell on the ground and succumbed to the injuries at the spot. Ijaz and Yasir made indiscriminate firing and I save my life whereas the indiscriminate firing made by Ijaz hit the deceased and on the hue and cry made by me people attracted to the place of occurrence whereupon the assailants fled away from there."
14.The first version of the accused is of great importance. In the instant case this Aamir Hussain was taken into custody by the police on the same day. He was sent for medical examination through injury statement Ex.PN available at Page 199 of the paper book. According to said injury statement there was an injury having blood at the knee of said Aamir Hussain. The date on this injury statement is 24.4.2004 i,e, date of occurrence. A note has been given by the Medical Officer RHC Chauntra which is to the effect "MLR No, 46-2004 dated 24.4.2004". The present appellants had also filed complaint' against the complainant party. Trial had been held but the complainant party was acquitted by the learned trial Court. It has been stated by the learned counsel for the appellants that PSLA was filed but it is not available with us neither any proof has been shown to us.
15. As we have mentioned above that we are here to deliver justice to the people. We would like to reproduce the first version of Aamir Hussain appellant which he has stated at the very first day, when the occurrence had taken place, which is reproduced as under:-- {{URDU TEXT}} It has been held in PLD 1969 Lahore 548 DB titled 'Muhammad Yaqoob Vs. The State" as under:-- "Criminal trial--Evidence--Duty of prosecution--Prosecution must place all evidence before Court--Counter version of incident in statement of accused before police--Of greatest importance to accused to show that his version was put forward at earliest opportunity--Court not to deprive accused of right to make use of such statement."
Then we also rely upon PLD 1962 SC-502 titled "Syed Ali Bepari Vs. Nibaran Mollah and others". It was held by their lordships therein as under:-- "Parties do not come out with true story--Incompleteness of tale should not deter Court from drawing proper inferences from evidence and circumstances."
This is good luck of the appellants that we have been able to find out medico legal report of Aamir Hussain. We take judicial notice of it in order to do justice. This MLR is in the instant case, which is marked as Mark "A". Aamir Hussain was got medically examined by the police on the same day i,e, day of occurrence 24.4.2004 at 10.15 a.m. through Tanvir Abbas FC-2626 and found following injuries on his person:-- 1 A fire-arm wound of entrance lx1 cm on front of left knee joint (dorsal-spect) i,e, contused swelling 10 x 9 cm about 44 cm above left ankle joint, bleeding coming from the wound profusely.
2 A fire-arm wound of exit 2 x 1.75 cm on back of left leg 8 cm below back of left popliteal fossa and 36 cm above left back of ankle joint. Margins of would are everted and lacerated Referred to DHQ Hospital for X-ray and its management.
16.When we were going through the paper book we saw at Page 49 statement of Malik Safdar Javaid, APP, which is reproduced below:-- "I give up Dr. Shehzad Nadeem PW- being unnecessary."
This was the doctor who is from the X-Ray department of DHQ Hospital, Rawalpindi. The findings of said doctor, which is marked as Mark "B", who had been given up by the prosecution with mala fide intention is reproduced below:-- "Evidence of communicated fracture. Left Patella noted with few -----not readable------noted around left knee joint."
17.It means that the appellant Aamir Hussain was seriously injured in this case. His version was put at the earliest when the police came at the spot and recorded the same. This was the first version which he put before the learned trial Court in reply to Question No, 2 in his statement under Section 342 Cr.P.C.
18.We may also refer to the site-plan, which is at Page 203 Ex.PD. Now the occurrence had taken place just in front of house of Aamir Hussain. Then there is another important factor. We are thankful to the learned counsel for the complainant that he had submitted during his arguments that there is a report of Forensic Science Laboratory, though it was not, produced before the learned trial Court because it was negative. Only the empties which were recovered from the spot and two crime weapons recovered from Masood Ahmad and Zahoor Ahmad were sent to the Fire Arms Expert. None of the crime empty matched with the pistols recovered from these appellants and one of the appellant has been awarded death sentence. Man can tell a lie but documents not.
It was the prosecution paper i,e, report of Forensic Science Laboratory which is on the record but not exhibited.
19.Dr. Imtiaz-ur-Rehman, SMO RHC Chauntra, who had medically examined Aamir Hussain on the same day was cited in the calendar of witnesses but he was also given up by the APP being un- necessary on the request of learned counsel for complainant. This was done with mala fide intention so that actual facts could not come on the record for just decision of the case.
20.As far as Aamir Hussain is concerned, he was taken into custody by the police on the same day. Even then his formal arrest was shown by the police on 5.5.2004 and then obtained physical remand but nothing was recovered from him. It means that these three appellants are not connected with the crime empties and it is proved that, they had not fired at the spot. It is proved from the first version of Aamir Hussain appellant that it was a complainant party who had come armed at the spot, fired at the spot, injured Aamir Hussain and the firing of companions of said deceased also hit the deceased. So, we are of the view that in our considered opinion, the version of appellant is more plausible and convincing one.
21. In result, while granting benefit of doubt to the appellants, appeal filed by them is hereby accepted, conviction and sentence awarded to them by the learned Additional Sessions Judge, Rawalpindi is set aside. Death sentence is not confirmed. Murder Reference is answered in negative. All the appellants are behind the bars. They shall be released from the jail forthwith, if not required in any other case.
22.For the reasons stated above, Crl. A, No, 483-2006 filed by the complainant against acquittal of the accused is dismissed.
23.Criminal Rev. No, 299-2006 is also dismissed.