Mushtaq Ahmed, Muhammad Afzal, Muhammad Yamin alias Imran and Khuda Bakhash were tried by a learned Additional Sessions Judge, at Taunsa Sharif for several charges, who upon culmination of their trial resolved to convict them by virtue of his judgment dated 19-6-1997 for the same and dealt with them in the matter of sentence as under:--
(i) Under section 394/34, P.P.C. Sentenced Mushtaq Ahmed, Muhammad Afzal and Muhammad Yamin alias Imran to 7 years' R.I. And to pay a fine of Rs,20,000 each and in case of default of payment of fine the accused were ordered to undergo S.I. For 2 years.
(ii) Under section 324, P.P.C. Sentenced Mushtaq Ahmed to 7 years R.I. Alongwith a fine of Rs,20,000 and in case of default of payment of fine, the accused was ordered to undergo S.I. For 2 years.
(iii) Under section 302, P.P.C. Awarded death sentence to Mushtaq Ahmed and also imposed a fine of Rs,50,000. In case of default of payment of fine, the accused was ordered to undergo S.I. For 2 years. Half of amount of fine on each count, if realized was ordered to be paid to the legal heirs of the deceased.
(iv) Under section 109, P.P.C. Sentenced Khuda Bakhash to 4 years and also to pay a fine of Rs,10,000 and in default of payment thereof to undergo S.I. For six months Benefit of section 382-B, Cr.P.C. Was also extended to the convicts except Mushtaq Ahmed.
2. Murder Reference No,143 of 1997 seeks confirmation of the sentence of death, while Mushtaq Ahmed by filing Criminal Appeal No,195 of 1997 has challenged conviction and sentence passed against him. Mushtaq Ahmed also filed his appeal through Jail for the same purpose bearing Criminal Appeal No,206 of 1997. Other convicts have not filed their appeals to assail this judgment.
We propose to dispose of these matters through this single judgment.
3. Relevant facts are that on 6-6-1994 Malik Liaqat Ali, Inspector/S.H.O., Police Station Taunsa Sharif on receipt of information about the occurrence in question hurriedly reached at Chowk Astana Imam Shah, at about 8-25 a.m. Mehboob Ahmed, P.W.8 established contact with him and by dictating him his statement Exh.P.A. Set the police machinery into motion against the offences.
Mushtaq Ahmed, appellant alongwith Pistol .30 bore P.6 and two empty magazines P.7 and 8 were produced before him at that moment. Complaint Exh.P.A. Was straightaway despatched to the police station for registration of formal First Information Report. Consequent upon receipt of Exh.P.A., formal F.I.R. Exh.P.A./1 was reduced into writing by Fida Hussain, M.H.C./P.W.1 since Mehboob Ahmed and Mushtaq both were in injured condition, so P.W.12 prepared injury statement of Mushtaq, Exh.P.L.
And that of Mehboob Ahmed Exh.P.M. Pistol P.6 alongwith empty magazines P.7 and 8 was seized by him through recovery memo. Exh.P.E. Theory put forth by Mehboob Ahmed, complainant P.W.8 in his statement Exh.P.A. Is that he runs a Cloth Shop in Suleman Bazar. His father died 20/25 days earlier.
On 6-6-1994 at about 7-00 a.m. Somebody knocked at the door. As he was available, so he came out to know as to who he was, and found Imran son Qamer Din, refugee, resident of Layyah, an employee of Rashid Ahmed, Proprietor Yasar Iron Pipe Works, Taunsa, Mushtaq Ahmed son of Muhammad Nawaz, Caste Chishti residents of Mohalla Baghwala, Jhang Saddar and Muhammad Afzal son of unknown, resident of Jhang Saddar, whose names he came to know afterwards.
Mushtaq Ahmed, appellant apprised him of the purpose of his visit to his house. According to him, they had come to offer 'Fatihah' prayer of father of the complainant as he happened to be a friend of .Mushtaq's father. Complainant had shown them in, and while sitting in the drawing rooms they offered Fatihah. The complainant got up to make arrangement to serve them tea. Mushtaq Ahmed and his compatriots overpowered Mushtaq Ahmed. Mushtaq Ahmed and Afzal took out pistols from the folder of their Shalwars. Imran took out a Chhura. They all extended threats to the complainant asking him to deliver them his cash etc. Available in the house forthwith, or in the alternate they would kill him. The complainant offered resistance, whereupon Mushtaq Ahmed delivered a blow with butt of his pistol over left side of his head. Blood began to ooze out of the head. Mehboob Ahmed raised hue and cry, which attracted Ghulam Akber P.W.6 and Manzoor Hussain, not produced and Muhammad Munir (also produced). All the three took to their heals in a street on catching sight of abovementioned persons. A sufficient number of people were also attracted to the spot. Complainant and others started chasing them, who reached opposite to Somro Clinic, while running away. Two persons, namely, Gul ' Zaman and Ghulam Asghar sons of Allah Bakhsh were standing there. They also made an endeavour to apprehend them. Mushtaq Ahmed without further loss of time made a shot at Gul Zaman, which struck him on the left side of his chest. On receipt of injury he fell down. Imran and Afzal continued running, whereas Mushtaq Ahmed resorted to firing at others. In the meanwhile, Muhammad Javaid P.W.7, who was passing through another street was fired at by Mushtaq Ahmed, which hit him at his left thigh. Gul Zaman and Muhammad Javaid, injured P.Ws. Were shifted to the hospital for their treatment, by the people around, whereas people chasing Mushtaq Ahmed successfully apprehended him alongwith his fire-arm. Mushtaq Ahmed suffered injuries during scuffle at that moment. Muhammad Afzal and Imran, however, managed to make good their escape. The accused were harboured by Khuda Bukhash during the preceding night, and it was at his abetment or instance that the accused had committed the crime in question.
Complainant came to know as well that Gul Zaman had succumbed to his injuries in the hospital, whereas Javaid Iqbal stood admitted for his treatment. Accused alongwith the arm and ammunition was produced by the complainant at the time of recording of his statement Exh.P.A.
Duly signed by him.
4. During the process of investigation Mushtaq Ahmed was confined at the police station lock-up and the case property was delivered to the official concerned, who kept the same in tact in the Police Station Malkhana. The Investigating Officer then left for the hospital, where he drew up injury statement Exh.P.O. And inquest report Exh.P.N. Of Gul Zaman, deceased. The dead body was then delivered to Abdul Rasool, 335-Constable (P.W.3) and Allah Bachaia 702-Constable for escorting the same to the mortuary in order to have its autopsy conducted by the medical authorities. Abdul Razzaq (P.W.2) and another had identified the dead body of Gul Zaman. Injury statement regarding Muhammad Javaid Exh.P.P. Was also drawn up by him in the hospital. After doing this much, he left for the house of complainant where occurrence of the alleged incident had originally started. He carried out spot inspection and prepared site-plan Ex.h.P.Q. The witnesses and Mushtaq Ahmed was with the Investigating Officer at that time during these . Proceedings. On the pointation of Mushtaq Ahmed, the Investigating Officer visited the place, where Gul Zaman had received injury.
He took into possession blood-stained soil through memo. Exh.P.F., alongwith three empties P.9 to P.11 drew up site-plan Exh.P.R. The Investigating Officer was also pointed out that very place, where Muhammad Javaid (P.W.7) was wounded by him. Relevant site-plan Exh.P.S. Was prepared by him.
He also secured two empties of .30 bore pistol P.12-13 trough memo. Exh.P.G. Last worn clothes of the deceased, Shalwar P.2, Qameez P.3, Safa P.4 and a sealed Phial P.1 allegedly containing bullet head were produced by Abdul Rauf (P.W.3) before him, which was sealed through memo. Exh.P.B.
Since Khuda Bakhash was to be arrested, so the Investigating Officer made thorough search for him and during this course, he came across his father Jan Muhammad, who passed on a bundle allegedly containing clothes of the appellants, comprising of Shalwar P.14, Qameez P.15, Bunian P.16, pair of suit P.17/1-2, another pair of suit P.18, Shirt P.19 and Bunian P.20, which were taken into possession through recovery memo. Exh.P.H.
5. Muhammad Afzal was arrested on 17-6-1994 and on 30-6-1994 he led to the recovery of pistol .30 bore P.21 from the Baithak of Khuda Bakhsh, co-accused, which was taken into possession through recovery memo. Exh.P.J. Site-plan of the place of recovery Exh.P.T. Was also prepared by him. He also arrested Muhammad Yamin alias Imran on 2-7-1994 and it was on 6-7-1994, when he led to the recovery of Chhuri, P.5 from the roof of latrine, situated in Mohalla Baulian Wala adjacent to the house of Imam Bukhsh and took the same into possession vide recovery memo. Exh.P.C. Site- plan of the place of recovery Exh.P.U. Was also prepared by him. The Investigating Officer took lot of pains to conduct thorough and discrete investigation into the crime and ultimately came to the conclusion that the accused were by all means fully involved in the occurrence. In spite of his best efforts, Khuda Bukhsh could not be arrested by him, who was got declared a proclaimed offender.
6. On receipt of challan the trial Court took congnizance of the case and after completing necessary legal formalities framed charge against the accused persons. The accused pleaded not guilty to the same and claimed to be tried. Under these circumstances, the prosecution was called upon to adduce its evidence to prove the charges against the accused and in order to achieve this object the prosecution ventured to produce as many as 13 witnesses in all. The prosecutor, after tendering in evidence reports of the Chemical Examiner, reports of Serologist and that of Forensic Science Laboratories declared the prosecution case close. Allah Bachai Constable, Muhammad Riaz, Constable and Nohman Aabid P.Ws. Were given up as unnecessary whereas Ghulam Asghar, Manzoor Hussain,.Muhammad Zubair and Abdul Rehman were given up as having been won-over by the accused.
7. The most prominent witnesses of the prosecution are, Ghulam Akbar (P.W.6), Muhammad Javaid (P.W.7) and Mehboob Ahmed (P.W.8), Javaid and Mehboob are the injured witnesses. Mehboob Ahmed is maker of the F.I.R. And he alongwith the other witnesses has furnished all the material facts pertaining to the occurrence within their knowledge. Malik Liaqat Ali, P.W.12 made a detailed statement about all the steps taken by him during the course of investigation. His evidence has already been discussed in detail in the earlier paragraph of the judgment, so it needs not be reproduced here.
8. Since Khuda Bukhsh could not be arrested, Haji Waris Ali, \S.-I./S.H.O., who appeared as P.W.9 had taken over charge as Station House Officer on 31-8-1994. He got culminated proceedings under section 87, Cr.P.C.. It was he, who had submitted the challan and on that basis proceedings under section 512, Cr.P.C. Were finalized. Next important witness is Dr. Moosa Kalim (P.W.13), who conducted autopsy upon the dead body of Gul Zaman in order to ascertain the number, locale of injury, the probable weapon of offence used by the accused for causing injury upon the deceased and what led to the death of the deceased. He recorded his observations after extensive examination of the dead body and thereafter set at the most important task of conducting dissection of the same. He observed as under:--
(i) An oval wound of 3/4" x 1/2" with inverted margins on front of left side of chest 2" left to the midline in the second intercostal space, 2" below the clavicle bond. This was wound of entry. Bullet was recovered from the back of left side of chest on lateral aspect just below the scapula bone, which was present as a swelling under the skin and subcutaneous tissues.
Left side of the pleaura was perforated. Left lung was perforated and left chest cavity was full of blood. Right side of the heart contained blood while left side was almost empty. Large blood vessels emerging from the hilum was perforated. Stomach contained large quantity of undigested food. Small intestines contained little quantity of liquid food. Bladder contained about 50 c.c. Urine.
According to the abovementioned findings, in his opinion, the injury was ante-mortem and caused by fire-arm. It was fatal in nature, cause of death was injury to vital organs (lung) and severe haemorrhage and shock due to rupture of some blood vessels, which was sufficient to cause death in the ordinary course of nature. The probable duration between injury and death was about half an hour to one hour and duration between death and post-mortem was 1-1/4 hours. Dead body, post-mortem report, police papers and last worn clothes and one bottle sealed containing bullet, were handed over to the police. Exh.P.V. Is the correct carbon copy of the post-mortem report, which is in his hand and bears his signatures. Exh.P.V./1 is the diagram showing seat of injury. It is also in hand and bears his signatures. Injury statement Exh.P.Q. And inquest report Exh.P.N. Are also signed by him.
On 6-6-1994, he also medically examined Muhammad Javaid son of Amir Muhammad, resident of Taunsa Sharif and found the following injuries on his person:--
(i) Circular wound of about 1/3" x 1/3" with inverted margins on postromedial aspect of left thigh below the left buttock. There was oozing of blood from the wound. There was corresponding hole on the Chader. This was a wound of entry.
Injury was kept under observation. Weapon was fire-arm, and probable duration was half an hour.
Result of this injury was declared on 16-10-1994 vide X-Ray MLC Nos.108, 109, 110, 111 dated 7-6-1994 and according to expert opinion of Medical Superintendent, T.H.Q., Taunsa a metallic radio opaque shadow seen in these X-Rays and there was no bony injury seen in these X-Rays, so injury was declared as simple.
Exh.P.W. Is the correct carbon copy of his original MLC report which is in his hand and bears his signatures.
On the same day he medically examined Mahboob Ahmed son Manzoor Ahmed resident of Taunsa Sharif and found following injuries on his person:--
(i) A lacerated wound of 1-1/2" x 1/3" skin deep on left parietal region of the head, 4" above the left ear, placed obliquely. There was oozing of blood from the wound. Injury was declared simple.
Weapon was blunt. Duration was about two hours.
Exh.P.X. Is the correct carbon copy of my original MLC report which is in my hand and bears my signatures. Injuries statement of Muhammad Javed Exh.P.P. And that of Mehboob Ahmed Exh.P.M.
Also bears my seal and signatures.
On 6-6-1994 he also medically examined Mushtaq Ahmed son of Muhammad Nawaz resident of Jhang Saddar. He found the following injuries on his person:--
(1) Contused swelling of 2" x 2" on right cheek below the right eye lid in blackish colour.
(2) Contused swelling 2" x 1" on left side of cheek.
(3) Lacerated wound of 1 x 1/3" a skin deep on back of the head.
(4) Bruise of 3" x 1" with swelling around on back of the right shoulder.
(5) Contused swelling of 2" x 1" with abrasion in it on the right side of the forehead.
All injuries were simple and were caused by blunt weapon. Probable duration was four to six hours.
Exh.P.B. Was the correct carbon copy of his original M.L.C. Which bears his signatures and seal. He also signed underneath the injuries statement Exh.P.L. At the time of examination of the injured.
9. Fida Hussain (P.W.1) had correctly recorded formal F.I.R. Exh.P.A./1, received by him through Imam Shah, 466-Constable. He also received sealed parcel containing blood-stained soil and three other parcels allegedly containing .30 bore pistol, empties and a led bullet head from the Investigating Officer, which he kept in the Malkhana and then deputed Safdar Hussain (P.W.11) to transmit the same to the concerned quarters. Imam Bakhsh, (P.W.4) is a witness of recovery of Chhuri P.5 at the instance of Muhammad Yamin alias lmran, accused and attested the recovery memo.
Muhammad Asghar, (P.W.5) had prepared site-plan Exh.P G.11-3 of the place of occurrence on asking of the police and on pointation of the witnesses. Muhammad Akmal (P.W.10) got the proclamation regarding arrest of Khuda Bakhsh, accused issued and affixed the same at a conspicuous place at the outer door of the house of the accused and made his report Exh.P.K./1 on Exh.P.E. Safdar Hussain (P.W.111 made his statement with regard to the duties performed by him during the course of investigation, as already pointed out in the statement of Fid'a Hussain M.H.C.
P.W.2 had merely identified the dead body of Gul Zaman, deceased.
10. After doing this much, it was incumbent upon the learned trial Court to seek explanation regarding the imputed crime from the accused persons. Accordingly they were examined under section 342, Cr.P.C. And all the incriminating circumstances available on the surface of evidence were brought to their notice so as to enable them to offer handsome explanation regarding their guilt, if any, at their end. All the accused refuted the charge, being false. They denied correctness of the allegations levelled against them and proclaimed their innocence in the matter. They opted not to make statements on oath as envisaged by the relevant provisions of section 340(2), Cr.P.C.
But desired to adduce defence evidence. Accordingly Muhammad Sarfraz (D.W.1), Muhammad Ismaeel (D.W.2), Zafar Ullah (D.W.3), Abu Bakkar Siddique (D.W.4) and Jan Muhammad (D.W.5) were produced by them as their defence witnesses and after producing them, they closed their defence evidence.
11. The learned Trial Judge, on the basis of evidence available, found and adjudged them guilty of the said charge and punished them as aforementioned.
12. Learned counsel for the appellant has raised following points for consideration: ---
(i) That First Information Report was recorded after preliminary investigation at the spot and as such evidence of witnesses whose names figure in such a First Information Report cannot be relied.
(ii) That during the first occurrence, which took place in a residential room of the complainant only he and the accused were present and none had seen it because the other witnesses came afterwards. What led to the occurrence was not known to the witnesses.
(iii) That since the appellant was not previously known to the prosecution witnesses, so it was the bounded duty of the prosecution to have held identification test parade, non-holding of which made the prosecution version extremely doubtful and the same deserves to be discarded.
(iv) That the prosecution witnesses had made deliberate improvements in their statements recorded by the learned trial Judge and subsequent improved portions of the same could not be safely relied upon. The appellant had no apprehension of being captured by Muhammad Javaid P.W.7 and there was no need for him to make a shot at him.
Lastly, learned counsel argued that investigation of the case smacks of padding and the appellant was, as a matter of fact, arrested from the wagon stand. In addition to this, he argued that the prosecution had awfully failed to establish its case, therefore, conviction of the appellant was not sustainable in the eye of law.
13. Conversely, learned counsel for the State argued that there was evidence of quality and quantity both with the prosecution comprising of statements of the complainant and Muhammad Javed P.W., who sustained injuries at the hands of the appellant and, in any case, it was not a case of substitution of an innocent person with the guilty one. The witnesses had no motive to implicate falsely the accused in the case and their statements tally with the medical evidence. Report Exh.P.Z.
Of the Forensic Science Laboratory was positive and the appellant rightly stood convicted for gruesome murder of Gul Zaman.
14. We have consciously, and with full devotion heard. Respective arguments of both the sides and gone through the evidence with the able assistance of their learned counsel. Exhaustive analysis of the evidence would reveal that statement of the complainant was reduced into writing by the Investigating Officer at Chowk Astana Imam Shah and not at the spot. From there, it was despatched to the police station through a police official for registration of a formal F.I.R. On receipt thereof, Fida Hussain, M.H.C. Drew up formal F.I.R. (Exh.P.A./1) at the police station at 8-30 a.m.
Throughout the trial proceedings, the defence has not been able to prove that assertion of the complaint and that of the Investigating Officer was incorrect. There is nothing to infer that the F.I.R.
Was recorded after preliminary investigation at the spot. Even otherwise, recording of F.I.R. After' preliminary investigation is to be treated as an irregularity, which would not affect or diminish in any manner sanctity attached to the F.I.R. The complainant or other witnesses had full knowledge of the occurrence and there was no matter, over which they had to enter upon deliberations and consultations with each other. Since the appellant was nabbed, no question of his identity was ever involved. No defect or flaw is to be found with recording of F.I.R. Or investigation ensuing therefrom.
15. Occurrence started from a residential room of the complainant's house. This is a typical case of residential robbery, in which all the three culprits actually entered the house of the complainant on the pretext of offering Fatiah prayer of his father. Sad demise of father of the complainant had taken place and, as such, they availed chance to enter into the house on the pretext of offering Fatiah prayer. It was morning time and none else was available. The accused had done so after an elaborate planning. The complainant perhaps was not aware of a wise saying, "not attempt to reason, negotiate, argue, or resist a robber, instead robber should be given the case or other articles that they demand." The complainant offered resistance and made an endeavour to apprehend the appellant, when he was delivered a blow with the butt of his pistol landing straight on his head. His efforts to overcome an armed robber cannot be termed as heroic; it was definitely fool hardy. When driven to such a panicky situation, the complainant raised hue and cry, which attracted people, who out of good civic sense started chasing them. In order to surmount various obstacles, which could fall in the way of the criminals, they secured necessary material for the crime i.e. The fire-arm. They had made a careful assessment of the best time for the offence to maximize the score and minimize the obstacles. The appellant resorted to firing at all those, who stood in his way. In the hard pursuit of running, he made shots at Gul Zaman deceased and Muhammad Javaid P.W. Gul Zaman later succumbed to his injuries. One commonly used, type of material in the commission of crimes in our country these days is the fire-arms, which are being successfully put to use to facilitate such crimes as robbery, car lifting,. And Zina. There is enormous increase in the violent crime because of wide distribution of fire-arms amongst the people. After all, tremendous efforts made by the people brought a golden success to them, when they nabbed the appellant with arms and ammunition.
16. As regards presence of Mahmood Ahmad complainant and Muhammad Javed P.W., it is extremely natural and they received felonious injuries at the hands of the appellant. It was day time occurrence. These witnesses and others too had the maximum opportunity to observe. They acquired the first hand knowledge of the occurrence. If any witness truly has knowledge, his testimony would decide the case immediately. Undoubtedly, they had an opportunity to use their senses in personal observation of the matter to be testified, and such is the basic, sound, and time honoured requirement of law. Their evidence did not fall within the category of a hearsay. No particular number of witnesses shall in any case be required for the proof of any fact. The Court may accept or act on the testimony of one witness only. It is inherent quality and not quantity of evidence to be counted. Implicit reliance can be placed on a solitary eye-witness, if nothing inherently improbable or contradictory is found in ocular account of such witness and he had no ample motive, grudge, or grouse to give false evidence against the culprit.
17. When apprehended at the spot, three witnesses in an injured condition were available. The brutal and violent series of acts committed by the appellant had gravely stirred the feelings of the people, who had gathered there. Their emotions became volatile and they manhandled him, which was natural phenomenon. He was got medically examined and his injuries %peak about his involvement in high tones. The material deployed by him i.e. .30 bore pistol, which is a lethal weapon alongwith the ammunition, was also taken into possession by the people and produced before the Investigating Officer within a short span of time. It is by all means a sufficient ground, which would eliminate all chances of fabrication on the part of the investigator. Minor discrepancies here and there in such-like cases would not assume any significance. They can be easily ignored.
18. We find that the prosecution witnesses were the natural witnesses of occurrence. They received felonious injuries at the hands of the appellant during the course of occurrence and their testimony is reliable by all means. They are wholly reliable witnesses. Their statements are in consonance with the medical evidence and overwhelming corroboration is available on the surface of evidence. The appellant has been rightly convicted and adequately punished. No mitigating or extenuating circumstances are available on the file, so we have no alternative, but to confirm his death sentence. Accordingly, while maintaining his conviction and sentence, we dismiss this appeal.
Murder Reference is answered in the affirmative.