Father and his four sons, charged with tripple murder
PLJ 2009 Cr.C. (Lahore) 993 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Kazim Ali Malik & Mazhar Hussain Minhas, JJ.
MUHAMMAD NASEER and 4 others--Appellants
versus
STATE--Respondent
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
Dying declaration--
----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
Tender age--
----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.
Judgment
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.
No comments:
Post a Comment