PLJ 2009 Cr.C. (Lahore) 993 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Kazim Ali Malik & Mazhar Hussain Minhas, JJ.
MUHAMMAD NASEER and 4 others--Appellants
Crl. Appeal No. 389 of 2000 and M.R. No. 38 of 2001, heard on 26.1.2009.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b), 324, 148 & 149--Sentence to death on three counts by trial Court--Assailed--Father and his four sons, charged with tripple murder--Prosecution examined 19 PWs in all--Prosecution and the other witnesses had no ill will or malice against the appellants--Both sides belong to the same tribe and area--Excepting the arrested motive there was no background of previous enmity between the parties--It was a day time occurrence which was promptly reported to the police station located seven miles away from the spot--On the day of occurrence the investigator secured blood stained earth from the spot where the deceased persons suffered death, which on chemical analysis was found stained with human blood from the spot conclusively established that the deceased persons suffered death at the spot as deposed by the PWs.--Occurrence took place in hilly area--Empties ejected from the guns and pistol might have gone down through sloping sides of hills--Held: Recovery would have been an additional piece of evidence in support of charge.
[Pp. 998 & 999] A, B & C
----Deceased was badly injured--His jaw was fractured as a result of fire-arm injury on his face--Doctor opined that he was in senses and capable to make a statement--Few worded statement itself indicates that its maker was not in a position to furnish details of the incident--He simply stated that accused committed the crime--Had the investigator chosen to fabricate a dying declaration in his name, the same would have been drawn up in detail in line with the story given in the F.I.R. [P. 1000] D
----Mitigation--Sentence is distinguishable from that of his co-accused--Accused was still in his teens when he accompanied his elder brothers and father and committed the crime obviously under their command and influence--Treating that aspect as a mitigating circumstance in his favour, High Court commute death sentence into life imprisonment on three Counts--Order accordingly. [P. 1001] E
Mr. Mukhtar Ahmad Gondal, Advocate for Appellants.
Ch. Muhammad Tariq, Addl. P.G. for State.
Date of hearing: 26.1.2009.
Kazim Ali Malik, J.--Mir Dad (60) and his four sons; namely, Muhammad Zameer (19), Muhammad Munir (25), Muhammad Naseer (27) and Muhammad Khurshid (31), all Abbasi by caste, residents of village Kari, Distt. Abotabad (N.W.F.P.) were challaned to the Court of Session, Rawalpindi in a case FIR. No. 251 dated 30 7.1997 to stand trial on the charge of rioting, attempted murder and murder on three counts. Gul Zaman (45), Pervaiz (30) and Muhammad Naseer son of afore-mentioned Gul Zaman suffered death in this happening. Muhammad Imran son of Gul Zaman. deceased suffered fire-arm injury but he survived and deposed at trial as an injured witness. At conclusion of trial before a learned Addl. Sessions Judge, Rawalpindi the above-mentioned accused persons were convicted and sentenced on the charge of rioting, attempted murder and murder on three counts vide judgment dated 26.9.2000, as under:- -
U/Section 148 P.P.C.: Each to suffer imprisonment for three years.
U/Section 302/149 P.P.C. for Qatl-i-Amd of Gul Zaman, Muhammad Naseer and Muhammad Pervaiz: Each sentenced to death on three counts and also each to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased Gul Zaman, Muhammad Naseer and Pervaiz under Section 544-A Cr.P.C. and in default of payment each to undergo simple imprisonment for six months.
U/Section 324/149 P.P.C. for attempt to commit Qatal-i-Amd of Muhammad Imran: Each to suffer imprisonment for 10 years and fine of Rs.20,000/-, in default thereof each to further undergo simple imprisonment for six months.
2. Prosecution case set up in the F.I.R. Ex.PB lodged at the instance of Nazir Ahmad, complainant. P.W. 7. in brief, is that on 30.7.1997 he alongwith Pervaiz Ahmad (deceased), Muhammad Naseer (deceased), Gul Zaman (deceased) and Muhammad Imran (injured P.W.) was on his way to Murree from their native village Kiari when at about 8.00 a.m. Mir Dad, Khurshid, Munir and Zameer (appellants) armed with 12 bore guns and Naseer (appellant) having pistol emerged and confronted them. Mir Dad, appellant threw challenge and fired with 12 bore gun hitting Gul Zaman, deceased on his face. Muhammad Khurshid, appellant fired with gun 12 bore striking Muhammad Naseer, deceased in his abdomen followed by two successive fire shots by Zameer and Munir, appellants which respectively hit Muhammad Naseer, deceased on the chest and abdomen. Muhammad Naseer, appellant fired pistol shot which landed on right upper arm of Muhammad Naseer, deceased. Thereafter, Muhammad Khurshid and Muhammad Naseer, appellants fired with gun and pistol respectively hitting Pervaiz, deceased on his face. Mir Dad, appellant again fired with gun striking Muhammad Imran, injured on his left arm. Pervaiz and Muhammad Naseer succumbed to their injuries at the spot. Gul Zaman and Muhammad Imran were removed to the hospital in an injured condition. Former mentioned also passed away in the hospital and in this way it became a case of triple murder.
3. Motive for the occurrence as set up in the F.I.R., was that Muhammad Khurshid, appellant doubted illicit intimacy of Naseer, deceased with his wife but he could not substantiate his allegation or suspicion with evidence when the same was laid before a Jirga of Elders.
4. On 30.7.1997, Gul Zaman, deceased while being alive was taken to the Tehsil Headquarter Hospital, Murree in a precarious condition where Dr. Wasiq Mumtaz, P.W. 10 medically examined him at 9.40 a.m. and found the following injuries:--
(i) Fire-arm wound below left eye.
(ii) Exit wound on right side of neck.
(iii) Lacerated wound on right upper chest.
(iv) Lacerated wound on right chest below wound No. 3.
The patient was bleeding profusely. Air was coming out of Wound No. 1. He was serious and in a critical condition. He uttered a few words about his injuries and the name of assailants. His dying declaration was recorded by Constable Ishtiaq Ahmad attested by the doctor. Because of serious and critical condition he was immediately shifted to the D.H.Q. Hospital, Rawalpindi where he died of his injuries on 31.7.1997 and it was certified by the post mortem examiner (P.W. 11) vide report Ex. PM that he suffered death by violence.
5. On the same day, at 1.30 p.m. this very doctor conducted post mortem examination on the dead body of Pervaiz and found the following injuries:--
(i) Fire-arm entry wound below left eye.
(ii) Fire-arm entry wound on left side of face, outer to lip.
(iii) Fire-arm exit wound on left side of his face,
(iv) There was fracture of survical vertebera. A piece of bullet (foreign body) was found in muscle and deep tissue of neck.
(v) There was massive laceration of tissues under lying the wound on left side of face. Jaw bone was fractured and broken into many pieces.
The bullet entered from left side of face causing fracture of jaw bone on left side and injury to parapharyngal tissues. It damaged the upper cervical vertebra and upper portion of spinal cord. The doctor noted massive bleeding from the wounds. The injury to spinal cord and loss of blood proved fatal to life and were sufficient to cause death in ordinary course of nature. The injuries were ante mortem and caused by fire-arm. Probable time which elapsed between injuries and death was 5 to 10 minutes and between death and post mortem was 5 to 6 hours. The doctor confirmed vide report Ex.PK that the deceased died of above said fire-arm injuries.
6. On 30.7.1997 the doctor also conducted post mortem examination on the dead body of Muhammad Naseer and found the following injuries:--
(i) Fire-arm entry wound on right side of chest below right nipple.
(ii) Fire-arm entry wound right lower abdomen.
(iii) Fire-arm entry wound left side of abdomen.
(iv) Fire-arm exit wound on back of trunk near mid line.
On dissection, ribs on right side of chest were found fractured. Large amount of blood filled plural and abdominal cavities. Right lung and intercostals vessels were found damaged. Liver had massive lacerations and broken into many pieces.
7. In the opinion of the doctor the cause of death was massive blood loss. The injuries were ante mortem, caused by fire-arm and sufficient to cause death in the ordinary course of nature. Time between injuries and death was 5 to 10 minutes and between death and post mortem was 8 hours.
8. On 30.7.1997 Dr. Azhar Mahmood, P.W. 18 medically examined Muhammad Imran, P.W. and found a small hole of .5 cm x .5 cm x 15 cm below the shoulder joint on the left side of his left arm, in between the shoulder and elbow joints. On x-ray, a pellet just attached to humarious (left side) was also found.
9. Haji Ghazanfer Ali, Sub Inspector, P.W. 19 was present at Sanni Chowk on 30.7.1997 when he received an information about the occurrence and he reached at the spot. Nazir Ahmad, complainant, P.W.7 appeared before him and got recorded his statement, Ex.PB which was sent to the police station for registration of formal F.I.R. Dead bodies of Pervaiz and Naseer were lying at the spot. The investigator prepared injury statements Ex.PU and Ex.PW and inquest reports Ex.PV and Ex.PX respectively of the dead bodies of Pervaiz and Naseer, deceased and dispatched the same to the mortuary for autopsy. He inspected the spot and secured blood stained earth from the places where dead bodies of Pervaiz and Naseer were lying vide two separate sealed parcels vide recovery memo Ex.PF. He also took into possession an empty of 12 bore gun vide recovery memo Ex.PG. On the same day he prepared injury statements of Gul Zaman and Muhammad Imran and got them medically examined from the Civil Hospital, Murree. On the same day dying declaration Ex.PH/1 of Gul Zaman was produced before him by Ishtiaq Ahmad, Constable. On 16.8.1997 Naseer Ahmad, Munir and Zameer, appellants were arrested by Police Station Bhara Kahu, Distt. Islamabad. They were formally arrested in this case on 17.8.1997. The investigator also arrested Mir Dad and Khurshid, accused. Zamir, appellant led to the recovery of shot gun 12 bore (P. 13) which was seized vide memo Ex.PE. On 30.8.1997 Mir Dad appellant got recovered 12 bore gun (P. 17) which was taken into possession vide memo Ex.PQ. Khurshid, appellant also led to the recovery of gun (P. 18) which was seized vide memo Ex.PR. He also took into possession the weapons already recovered from Naseer and Munir, appellants by Police Station Bara Kahu. After completion of investigation the appellants were challaned to Court to face trial.
10. At the inception of trial, the accused persons were charged under Section 148 P.P.C. for having formed an unlawful assembly, which resulted in violence; under Section 302 read with 149 P.P.C. on three counts for having committed Qatl-i-Amd of (i) Gul Zaman, (ii) Pervaiz and (iii) Naseer in prosecution of common object of the unlawful assembly and under Section 324/149 P.P.C. for having made murderous assault on Imran P.W. in prosecution of common object of the unlawful assembly. The accused denied the charge and claimed trial.
11. The prosecution examined 19 P.Ws. in all out of whom Nazir Ahmad Abbasi, complainant, P.W. 7 and Muhammad Imran injured. P.W 8 provided ocular account of the occurrence. The former-mentioned also deposed about the motive. Dr. Waqas Mumtaz, P.W. 10, Dr. Shabbir Hassan, P.W.11 and Dr. Azhar Mahmood, P.W. 18 proved the medical evidence. Saif Ullah, draftsman, P.W. 16 prepared the scaled site-plan of the place of occurrence. Ishtiaq Ahmad, Constable, PW.17 proved dying declaration made by Gul Zaman, (deceased) while being alive and Haji Ghazanfer Ali P.W. 19 proved his investigation. Statements of rest of the P.Ws. are formal in nature.
12. When examined under Section 342 Cr.P.C. all the appellants denied and dismissed each piece of prosecution evidence. In an answer to a question, Mir Dad, accused put forward his counter version as under:
"I need not as the prosecution failed to advance any reliable evidence against me. The complainant party professionally activates in theft of forest area and for that they often enter into the forests located in the out skirts of Murree. The occurrence had taken place in mysterious circumstances inside the forest area at night time. The complainant party suspected us as informer of Forest Department. We have been falsely implicated and the original culprits for known reasons were not traced."
13. Learned counsel for the appellants took exception to the testimony of Muhammad Imran, injured witness with the plea that he with the active support and connivance of the investigator and the doctor got fabricated an injury on his person whereas he was neither present at the spot at relevant time nor did he witness the occurrence. We have carefully examined the medico legal report, Ex., PT/2 prepared by Dr. Azhar Mahmood, P.W. 18 coupled with statement of the medical examiner at trial and would say that the contention of the learned counsel is misconceived. On the day of occurrence, the doctor (P.W 18) medically examined Muhammad Imran, P.W. as per police request and found a small hole .5 cm x .5cm x 15 cm below the shoulder joint on the left side of left arm in between the shoulder and elbow joints. The injury was x-rayed and a pellet embedded inside the injury had been located. It is true that the x-ray report and x-ray film had not been collected by the investigator nor brought on record but this omission on the part of the investigator does not adversely affect the prosecution case because the Medical Examiner stated on oath in a sure footed manner that he formed his opinion on the basis of x-ray report. We are not in agreement with the learned counsel for the appellants that the medical examiner based his report on non-existent x-ray film and report.
14. Learned counsel for the appellants further argued that the learned trial Court did not examine the case by placing the prosecution version and the defence version in juxta position. Learned counsel was of the view that as a matter of fact the deceased persons while cutting and removing trees from the jungle were gunned downed by forest guards and that the appellants were blamed for the killings on account of previous enmity. This contention is not receiving support from the record and attending circumstances of the case. The complainant and the other witnesses had no illwill or malice against the appellants. Both sides belong to the same tribe and area. Excepting the asserted motive there was no back ground of previous enmity between the parties. It was a day time occurrence which was promptly reported to the police station located seven miles away from the spot. Three persons suffered death while one sustained injury at 8.00 a.m. on 30.7.1997 in the incident which was promptly reported to the police the same day at 10.30 a.m. As the complainant lodged the F.l.R. about these killings without wasting a single moment, therefore, it can be said that his version had been laid before the police in an adulterated manner after consultation and declaration.
15. The learned counsel next contended that the deceased persons suffered death inside the jungle and not at the spot as narrated by the complainant and depicted by the draftsman in the scaled site-plan Ex.PS. The contention is devoid of force because the prosecution successfully proved with cogent evidence that the occurrence took place at the spot as claimed by the eye-witnesses and not inside the jungle. On the day of occurrence, the investigator secured blood stained earth from the spot where the deceased persons suffered death, which on chemical analysis was found stained with human blood. Seizure of earth stained with human blood from the spot conclusively established that the deceased persons suffered death at the spot as deposed by the P.Ws.
16. Learned counsel for the appellants also criticized the prosecution case with the plea that only one crime empty had been found and seized by the investigator, which also did not match with the test empties. It was further argued that if five accused persons had fired successive shots in the alleged manner, a sizeable number of crime empties would have been found at the spot. For two reasons we do not attach much importance to this contention. Firstly, the occurrence took place in hilly area. The empties ejected from the guns and pistol might have gone down through sloping side of hills. It was not possible for the complainant to preserve empties at the spot surrounded by sloping-side-ways and mounds. Secondly, the prosecution case was not adversely affected from the very fact that the accused persons did not get recovered the weapons with which they fired. Had the appellants got recovered weapons of offence, the recovery would have been an additional piece of evidence in support of the charge. Negative report of fire-arm expert is of no avail to the defence because the prosecution is possessed with testimony of an injured witness who deposed in a sure footed manner that within his view the appellants fired successive shots striking the three deceased persons besides him. The witnesses including the injured stood the test of cross-examination. They furnished minor details of the incident on cross-examination in truth inspiring manner.
17. Learned counsel lastly argued that the P.Ws. were residents of Distt. Abbottabad (N.W.F.P.) and their presence at the spot at relevant time being per chance should have been given due weight. It is true that the P.Ws. are/were residents of Distt. Abbottabad. It is also not in dispute that the occurrence took place within the area of Police Station Murree, Distt. Rawalpindi. The presence of three deceased persons and one injured P.W. at the spot at relevant time is not disputable because they sustained fire-arm injuries. Presence of three deceased persons and one injured P.W. belonging to Distt. Abbottabad at the spot at relevant time is/was not disputed and therefore, presence of their co-villagers (P.Ws) at the spot should not be doubted. In the circumstances, it was not necessary for the prosecution to get examined residents of Murree particularly when the prosecution was having an injured witness who suffered fire-arm injury in this happening.
18. The prosecution is possessed with a valuable piece of evidence i.e. dying declaration (Ex.PH) by Gul Zaman (deceased) which he made before Ishtiaq Ahmad, Constable, P.W. 17 in the hospital while being alive in presence of Dr. Wasiq Mumtaz, P.W. 10. We find it advantageous to reproduce below the few worded dying declaration, which reads:
Learned counsel for the appellants criticized the dying declaration with the contention that the injured was not fit to make a statement as his jaw had been fractured and that the dying declaration even if believed would not advance the prosecution case successfully as its maker did not name the assailants excepting Mir Dad. We are not inclined to agree with this contention. Gul Zaman was badly injured. It is true that his jaw was fractured as a result of fire-arm injury on his face. The doctor opined that he was in senses and capable to make a statement. The few worded statement itself indicates that its maker was not in a position to furnish details of the incident. He simply stated that Mir Dad and his sons committed the crime. Had the investigator chosen to fabricate a dying declaration in his name, the same would have been drawn up in detail in line with the story given in the F.I.R. The brief dying declaration in fact has supported the prosecution case that Gul Zaman, injured could utter a few words only about the incident which were reduced into writing by P.W. 17 attested by the doctor without any addition. This dying declaration coupled with statement of Muhammad Imran, injured P.W. has conclusively established beyond any shadow of doubt that the appellants and none else committed the crime in which three persons were brutally murdered, while their companion Imran, (complainant) sustained an injury.
19. For what has been stated above, we are of the considered view that the prosecution successfully proved the charge of murder on three counts besides the charge of rioting and attempted murder. The learned trial Court rightly convicted the appellants for the said charge.
20. Four real brothers and their father stand convicted and sentenced to death on three counts. While determining the quantum of sentence, the case of Muhammad Naseer (27), Muhammad Khurshid (31), Muhammad Munir (25) and their father Mir Dad (60), appellants is not open to any legal or factual exception. They brutally murdered three persons of their tribe by hitting vital parts of their bodies i.e. face, chest and abdomen. The asserted motive is also of no help to these appellants because they did not own the same during investigation or at trial. Even otherwise, Khurshid, appellant doubted illicit intimacy of his wife with Naseer, deceased only. There was no occasion for these appellants to kill Gul Zaman and Pervaiz who had admittedly got no concern with the alleged unholy affair of Naseer, deceased with the wife of Khurshid, appellant. We therefore, uphold the convictions and sentences recorded by the learned trial Court against these appellants.
21. The case of Muhammad Zameer (19), appellant qua his sentence is distinguishable from that of his co-appellants. He is the youngest son of Mir Dad, appellant. He was still in his teens when he accompanied his elder brothers and father and committed the crime obviously under their command and influence. Treating this aspect as a mitigating circumstance in his favour, we commute death sentence of Muhammad Zameer, appellant into imprisonment for life on three counts. However, the order with regard to compensation and his conviction and sentence on the charge of rioting and attempted murder needs no interference by this Court.
22. The sentence of imprisonment of Muhammad Zameer, appellant on all counts shall run concurrently with the benefit of Section 382-B Cr.P.C.
23. With the above modification in the sentence of Muhammad Zameer, appellant, Crl. Appeal No. 389 of 2000 is dismissed.
24. Murder Reference No. 38 of 2001 is answered in negative to the extent of Muhammad Zameer, appellant, whereas it is answered in affirmative regarding Mir Dad, Muhammad Khurshid, Muhammad Munir and Muhammad Naseer, appellants.
25. Death, sentence imposed by the learned trial Court on Muhammad Zameer, appellant on three counts is not confirmed. However, death sentence recorded against Muhammad Munir, Muhammad Naseer, Muhammad Khurshid and Mir Dad, appellants on three counts is confirmed.
(M.S.A.) Order accordingly.