Present:
Mr.
Justice Abdul Rasool Memon
Mr.
Justice Irshad Ali Shah
1. Crl. Appeal No.D-36 of 2011.
2. Crl. Appeal No.D-132 of 2017.
3. Cr. Appeal No.D-133 of 2017.
For orders on MA 2214/13
For orders on MA 5505/15
For hearing of main
case
Date of hearing: 02.05.2018 Date of Judgment 06.2018
M/s Qurban Ali Malano & Ghulam Shabbir Dayo Advocates for
appellants.
Mr. Habib Rehman Shaikh Advocate for
complainant.
Mr. Sardar Ali Shah Rizvi DPG.
JUDGMENT
IRSHAD ALI SHAH, J.-The appellants, on having been found guilty, were
convicted and sentenced by learned Judge ATA Court Khairpur
as under;
“U/s 302 R/W
Section 34 PPC they are convicted and sentenced to suffer rigorous imprisonment
for life for two times. Both the present accused and proclaimed offender are
also liable to pay compensation
of Rs.200,000/-each
to be paid to the
legal
heirs of deceased Chiraguddin and Bashir Ahmed u/s
544-A Cr.PC and in case of default they all shall
suffer further R.I for a period of six months more.
u/s 324 R/W Section 34 PPC
they are convicted and sentenced to suffer R.I for a period of seven years and
also to pay fine of Rs.10,000/-each and in
default
thereof they shall
undergo
SI for two months more.
u/s 7 of ATA, 1997 they are
convicted and sentenced to suffer rigorous imprisonment for life for two times
and to pay fine of Rs.200,000/-each and in
default
thereof they shall
undergo
RI for one year.
u/s 13(e) Arms Ordinance
accused Munir Ahmed convicted and sentenced to suffer
RI for a period of seven years and also to pay fine of Rs.5000/-and in case of
default thereof he shall undergo SI for one month.
u/s 13(e) Arms Ordinance
accused Nadeem Ahmed convicted and sentenced to suffer
RI for a period of seven years and also to pay fine of Rs.5000/-and in case of
default thereof he shall undergo SI for one month.
2. The
case against the appellants is outcome of FIR Crime No.35/2007, u/s 302, 324, 34
PPC of PS Mehrabpur, which was lodged by complainant Shabbir Ahmed, which reads as under;
“Complaint is that I am driver of Tractor. Yesterday at night time
there arose exchange of some harsh words between us
and Muhammad Amin Malik and others over the issue of children, on that Muhammad
Amin Malik and others said that they will see us. Today at morning time I and
my deceased father Bashir Ahmed, brother
Munir Ahmed and cousin Khalil Rehman, after
completing the work at land, were going back, when we reached at bus stop Behlani, there at about 2.15 hours of noon, my deceased
cousin Chiraghuddin son of Ghulam
Muhammad also joined us. There we found accused. They were Muhammad Amin son of
Muhammad Ashraf Malik, who was having MP-5 rifle in his hand, (2) Munir Ahmed son of Muhammad Ashraf Malik who was having kalashnikov in his hand, (3) Nadeem
son of Muhammad Ashraf Malik who was having T.T pistol in his hand, (4) Bashir Ahmed
son of Muhammad Ashraf who was having T.T pistol in his hand. Soon after their
arrival accused Muhammad Amin Malik said that today we will not be spared. After
saying so, accused Muhammad Amin Malik made direct fires with his rifle upon Chiraguddin with intention to commit his murder, those
fires hit him at his chest, on that he raised cries and fell down on the ground.
Accused Munir Ahmed Malik
fired burst of kalashnikov upon my father Bashir
Ahmed who also raised cries and fell down on the ground. Accused Nadeem, Muhammad Amin, Munir Ahmed and Bashir Ahmed fired with their respective weapons
upon my brother Munir Ahmed and cousin Khalil Rehman with
intention to commit their murder. They by raising cries fell down on the
ground. Then I and above said injured raised cries, on our cries and fire shot reports
Umerddin Shaikh, Abdul Sattar Shaikh, Nawab Shaikh, Ashiq
Ali Shaikh and other co-villagers came from hotel and shops. They also saw the
accused persons making fires. Then all the four accused making fires went away to
their houses by raising slogans. We and all the witnesses found that my father
Bashir Ahmed and cousin Chiraguddin had died after sustaining
fire shot injuries. My brother Munir Ahmed and cousin
Khalil Rehman were found lying in injured condition. We brought the injured at Behlani Hospital for immediate treatment. I left the
witnesses over the dead bodies of both the deceased for security purpose and then
myself proceeded there from. Now I have appeared and
state that above named accused on account of their annoyance over issue of
children in furtherance of their common intention have committed murder of my
father Bashir Ahmed and cousin Chiraguddin and have caused
injuries to my brother Munir Ahmed and cousin Khalil
Rehman. I am complainant investigation be made.”
3. On investigation, both the appellants
were arrested; from them were secured by police unlicensed klashnikov
and pistol and they, after usual investigation, were challaned before learned
trial court to face trial for above said offence, while names of accused Muhammad
Amin and Bashir Ahmed were placed in charge sheet as absconders.
4. At one moment, on application of the appellants,
learned trial court forwarded the case to court of ordinary jurisdiction for
its trial, such order was impugned by the complainant before this court. It was
set aside. The order passed by this court, on challenge, was set aside by Hon’ble Supreme Court of Pakistan with direction to this
court to pass a fresh order. At the time of hearing of fresh arguments on point
of jurisdiction both the parties consented for trial of their case by learned Judge, ATA Court Khairpur,
which was ordered accordingly by this Court.
5. At trial, appellants denied the charge
and prosecution to prove it, examined PW-1 complainant Shabbir
Ahmed, produced through him FIR of the present case. PW-2 Munir Ahmed. PW-3 Khalil Rehman, PW-4 Umerddin Shaikh, PW-5 Nawab Ali Shaikh, PW-6 mashir Liaqat Ali, produced through him mashirnama of place of
incident, mashirnama of injuries,
inquest reports of dead bodies of deceased and recovery of crime weapons, PW-7
ASI Ali Hassan, PW-8 Dr. Ashiq Ali, produced through
him provisional and final medical certificates in respect of injuries sustained
by injured, post mortem reports of dead bodies of said deceased, letter of
police and receipt, PW-9 Tapedar Allah Jurio, PW-10 SIO/SIP Nazar Hussain Shah, PW-11 mashir SIP Lal Dino Shar, produced through
him mashirnama of arrest of the appellants and then closed the side.
6. The appellants in their statements recorded
u/s 342 Cr.P.C. denied the prosecution allegation by pleading innocence by stating
that they have been involved in this case falsely by the complainant party due to
enmity. They did not examine anyone in defense or themselves on oath in
disproof of the prosecution allegation against them.
7. Appellant Munir
Ahmed during course of his examination under section 342 Cr.P.C.,
produced certified copy of an application u/s 156(3) Cr.P.C. which allegedly was
made before learned 2nd Civil Judge/Judicial Magistrate Kandiaro by one Muhammad Saleem.
8. On the basis of evidence, so produced
before it and on hearing learned counsel for the parties, learned trial court
convicted and sentenced the appellants by way of impugned judgment, as stated
above.
9. It would be pertinent to mention here
that no separate appeals were filed by the appellants to challenge conviction
and sentence recorded against them for offence punishable u/s 13(e) A.O.
timely. The appellants in order to cover up such deficiency filed their
separate appeals subsequently.
10. At the time of recording conviction and
sentence against the appellants, learned trial court acquitted absconding
accused Muhammad Amin Malik by believing his plea of alibi. His acquittal was
challenged by the complainant by way of filing an Acquittal appeal. By doing so,
he also filed a Revision application for enhancement of the conviction and sentence
which were awarded to the appellants.
11. The acquittal appeal and revision applications
were withdrawn by the complainant perhaps on account of amicable settlement
with the accused party.
12. All these three appeals have borne out of
single judgment of learned trial Court; therefore, same are being disposed of
through the single judgment.
13. It is contended by learned counsel for
the appellants that they, being innocents are involved in this case falsely by
the complainant party to satisfy their grudge with them over kids’ fight, otherwise
they have nothing to do with the incident. By contending so an impression was
given that the appellants have been substituted with real culprits of the
incident. It is further contended by them that there were material inconsistencies
and contradictions in between the evidence of complainant and his witnesses,
those were not considered by learned trial court in its true perspective. It
was further contended that the weapons have been foisted upon the appellants by
the police at the instance of the complainant party; as such the appellants
could not be connected with the recovery of the weapons. It was further
contended by them that 161 Cr.P.C. statement of P.W. Munir Ahmed was not read over to him by the police and he
was not able to distinguish between appellants Munir
Ahmed and accused Bashir Ahmed at the time of his examination. It is further
contended by them that the case was not to have been tried by ATA Court, even
with the consent of the parties, as the Courts could not accord jurisdiction
with the consent of the parties. By contending so, they sought for acquittal of
the appellants as, according to them; they have also compounded the offence
with the complainant party outside of the Court at the intervention of their Nek
Mards. In support of their contention, they relied
upon cases of Muhammad Tufail and others vs. Settlement
and Rehabilitation Commissioner Hyderabad and others (PLD 1967 Karachi
258), (2) Molvi Noor
Muhammad and others vs. The State (2000 PCr.LJ 1583), (3) Shaikh
Muhammad Amjad vs. The State (2002 PCr.LJ 1317),
(4) Amanullah and others vs. The State (PLD
2003 Quetta 11), (5) Rashid
Ahmed vs. The State (PLD 1972 SC 271), (6) Pir
Sabir Shah vs. Shah Muhammad Khan and others (PLD
1995 SC 66), (7) Karachi Dock
Labour Board vs. M/s Quality Builders and others (PLD
2016 SC 121), (8) Pervaiz Iqbal vs.
Special Judge Anti Terrorism Court No.3 and others (2013 YLR 92), (9) Dr. Zahoor
Mehdi vs. Election Commissioner of Pakistan (PLD
2009 SC-1), (10) Muhabat Ali and others vs. The State (2007
SCMR 142), (11) Syed Saeed Muhammad
Shah vs. The State (1993 SCMR 550), (12) Muhammad Hussain @ Hussaini vs. The State (PLD 1995 Lahore 229), (13) Rahat
Ali vs. The State (2010 SCMR 584), (14) Tariq Pervaiz vs. The State
(1995 SCMR 1345) and
(15) Shafiq Shah and others vs. The State
(2010 PCr.LJ 1156).
14. Learned DPG has supported the impugned
judgment by contending that offence punishable u/s 7 ATA of 1997 is not
compoundable one.
15. Learned counsel for the complainant did
not raise any objection to acquittal of the appellants by stating that both the
parties have compounded the offence outside the court at the intervention of
the Nek Mards of their communities.
16. We
have considered the above arguments and perused the record.
17. Unnatural
death of deceased Bashir
Ahmed and Chiraguddin and injuries sustained by
injured / P.Ws. Munir Ahmed and Khalil
Rehman are proved by the evidence of Dr. Ashiq Ali,
such fact even otherwise, is not disputed by the appellants, hence what remains
to be examined is the liability of the appellants towards the present incident.
18. It is stated by complainant Shabbir Ahmed during course of his examination before
learned trial court that they were having dispute with the accused party over
kids’ fight. On 17.5.2007 he, his father Bashir Ahmed (deceased), his brother Munir Ahmed and cousin Khalil Rehman were going back after visiting
their land, when reached at Behlani bus stop there at
about 2.15 pm they were joined by cousin Chiraguddin
(deceased). In the meanwhile there came accused Muhammad Amin armed with MP-5
rifle, Munir Ahmed armed with kalashnikov,
Nadeem Ahmed with TT pistol and Bashir Ahmed with TT pistol.
It was further stated by the complainant that on their arrival it was stated by
accused Muhammad Amin that the complainant party may not be spared and then he
made straight fires with his rifle upon Chiraguddin
with intention to commit his murder, those fires hit to Chiraguddin
at chest and he fell down on the ground by raising cries. Accused Munir Ahmed fired burst of kalashnikov
at Bashir Ahmed, he fell down on the ground. Accused Nadeem, Muhammad Amin, Munir Ahmed and Bashir Ahmed then fired with their
respective weapons upon PWs Munir Ahmed and Khalil Rehman with intention to commit their murder and they
fell down on the ground by raising cries. It was further stated by the
complainant that he and injured persons raised cries and on their cries and
fire shot reports PWs Umerddin Shaikh,
Nawab Ali Shaikh, Abdul Sattar Shaikh and Ashiq Ali Shaikh came running from shops and hotels. They
also saw the accused persons, they went away by making
aerial firing. It was further stated by the complainant that Bashir Ahmed and Chiraguddin were
found dead while Munir Ahmed and Khalil
Rehman were found sustaining fire shot injuries. It was further stated by the complainant
that the injured were then taken to Ranipur hospital and
he then went to PS Mehrabpur to lodge report of the
incident, leaving behind the above named witnesses over the dead bodies of the above
said deceased. The complainant was supported in his version by PWs Munir Ahmed, Khalil Rehman, Umerddin and Nawab Ali, on all material points with regard to the manner
whereby the death of the deceased was committed and injuries to the injured
were caused as well as time and place of incident. In the instant matter, the father
and cousin of the complainant
undeniably lost their
lives while the witnesses received
fire-arm injuries on their persons with intention of committing their murder
too. In such eventuality, the possibility of false involvement by substituting
innocent with real culprits
is a rare phenomenon. To make out an exception, the accused persons would always
be under legal obligation
to bring such a
material on record which
could establish least show
possibility of existence
of a motive
of such a grave nature that same motivated the complainant
to substitute real culprits with innocent persons. It is however matter of record that defense
has not brought any such serious animosity
between the parties. A quarrel between the
children, in our view, is not such a serious motive which could have promoted
the complainant party to falsely involve the appellants at the cost of the real
culprits. Reference in this respect is made upon the case of Zahoor Ahmed v. The State (2007 SCMR 1519) wherein it is observed
that;
“6. … The petitioner
is a maternal-cousin of the deceased, so also the first cousin of the deceased
through paternal line of relationship and thus, in the light of the entire
evidence it has correctly been concluded by the learned High Court that the
blood relation would not spare the real culprit and instead would involve an
innocent person in the case. Further it has rightly been observed that it was
not essential for the prosecution to produce each of the cited witnesses at the
trial.”
19. Further, the evidence could not be
disbelieved merely on the basis of immaterial and inconsequential
contradictions unless the inconsistencies and contradictions are shown to
effect material parts of prosecution case. Reference in that respect may well
be made upon the case of Ravi Kapur v. State of Rajhistan (2013 SCMR 480) wherein it is held as under:-
“It is a settled principle that the variations in the statements of
witnesses which are neither material nor serious enough to affect the case of
the prosecution adversely are to be ignored by the court…
It is also a settled principle that statements of the witnesses have to
be read as a whole and the court should not pick up a sentence in isolation
from the entire statement and ignoring its proper reference, use the same
against or in favour of a party. The contradictions have to be material and
substantial so as to adversely affect the case of the prosecution. Reference in this regard can be made to ….”
20. The injuries on the persons of the
injured and death of deceased at a particular spot is also indicative of the
fact that presence of such witnesses and deceased was / is natural one. The complainant
and his witnesses are appearing to be natural witnesses to the incident. Their
evidence is corroborated in shape of recovery of blood stained earth, empty bullets
of MP-5 rifle, Klashnikov and
TT pistols from the place of incident, which were effected by SIO/SIP Syed Nazar Hussain
in presence of PW/mashir Liaqat
Ali. On arrest from both the appellants were recovered by SIO/SIP Nazar Hussain Shah, unlicensed
Kalashnikov and TT pistols which were used by them in commission of the incident.
Such recovery could not be said to be foistation as it was found matched to large
extent with the recovery of empties from place of incident as per Expert report.
The investigating officer of the present case indeed was having no reason to have
foisted the unlicensed weapons upon the appellants. Legally, the conviction
could well be recorded on ocular account alone, if the same appears to be
convincing and natural. However, when it comes to the case of capital
punishment, the ocular account, if found supported with other corroborative
pieces of evidence, would always be safe to conclude that the prosecution has successfully
established its case and mere inconsistencies and minor contradictions would be
of no avail for defense. Reference in that respect if need be may well be made upon
the case of Ghulam Muhammad &
another v. State & another (2017
SCMR 2048), wherein it is observed as under;
“3. In
the FIR, Wazir Ali (appellant) and Muhammad Aslam (convict-appellant) have been
attributed hatchet blows on the person of Mukhtar Hussain (deceased). Ocular account was furnished by Ghulam
Muhammad complainant (PW.6) and Mehtab Hussain (PW.7) who while appearing before the learned trial
court stood by the contents of the FIR. The injuries caused by the said
convicts were observed by Dr. Irshad Hussain (PW.3) who conducted autopsy on the dead body of Mukhtar Hussain (deceased).
Prosecution case is further corroborated by the recovery of hatchets (Ex.PF/PG)
at the instance of both the convicts and positive reports of Chemical Examiner
and Serologist vis-a-vis
the said hatchets. Therefore, we hold
that the prosecution successfully brought home guilt against both the convict
to the hilt and Crl. M.A. No.452-L of 2015 is dismissed and his
conviction and sentence recorded / maintained by the learned courts below is
upheld.”
21. Needless to state that appellant Munir Ahmed is attributed specific role of causing fire
shot injuries to deceased Bashir Ahmed. It is true that the role attributed to appellant
Nadeem Ahmed in commission of incident is to the
extent that he with rest of the culprits caused unspecified fire shot injuries
to PWs Munir Ahmed and Khalil
Rehman but for this reason he could not be absolved of the liability by
extending him benefit of doubt as it was he, who with rest of the culprits being
armed with deadly weapon gone over to the complainant party, participated in
commission of the incident, thereby committed death of two innocent persons and
caused fire shot injuries to two more persons with intention to commit their
murder too. However, it is also a matter of record that the complainant and his
witnesses have categorically named the appellants as well co-accused to have
come at particular place, having armed themselves with deadly weapons. Thus,
manner in which the accused persons, came at a
particular place in such a fashion could lead to no other presumption but that
each of them knew the consequences of their such assembly. Reference in that respect if need be may well be made to
the case of Ramchandran and others v. State of Kerala (2012 SCMR 1156), wherein it is observed
as under;
“15. The
crucial question for determination in such a case is whether the assembly
consisted of five or more persons and whether the said persons entertained one
or more of the common objects specified by section 141. While determining this
question, it becomes relevant to consider whether the assembly consisted of
some persons which were merely passive witnesses and had joined the assembly as
a matter of idle curiosity without intending to entertain the common object of
the assembly. (vide Masalti
v. State of Uttar Pardesh, AIR 1965 SC 202)
12. Even if the offence committed is not in
direct prosecution of the common object of the assembly, it may yet fall under
second part of section 149 IPC if it can be held that the offence was such as
the members knew was likely to be committed. The expression ‘knew’ does not
mean a mere possibility, such as might or might not happen. For instance, it is a matter of common
knowledge that if a body of persons go armed to take forcible possession of the
land, it would be right to say that someone is likely to be killed and all the
members of the unlawful assembly must be award of that likelihood and would be
guilty under the second part of section 149 I.P.C.”
22. Such participation on the part of
appellant Nadeem Ahmed, prima facie involves him in commission
of the incident on point of vicarious liability. Thus, it could well be
concluded safely that all the accused persons, including the appellants, acted
in furtherance of their common intention, hence could seek no exception to the
legal position. In these circumstances learned trial court was right to record
conviction and sentence against both of the appellants, as stated above.
23. No doubt at present learned counsel for the
complainant has raised no objection to acquittal of the appellants but there
could be made no denial to the fact that the raising of no objection to the
acquittal of the appellants in the Code has got no legal value at all. The law
is quite clear that question of guilt
or innocence shall always be
determined on basis of material, brought on record during trial. A wish and
will of the defense or prosecution shall never be a ground to make a departure
from such settled principle of law. The wish and will of the complainant party
could only matter, if the course, as is provided by Section 345 of the Code, is
adopted which too is subject to limitation (s), so imposed by the law itself.
Thus, the mere no-objection to acquittal by complainant party is of no
significance.
24. The legality of the impugned judgment is questioned
by learned counsel for the appellants, by contending that the learned trial court
acquired the jurisdiction with consent of the parties otherwise it was having no
jurisdiction to proceed with the instant case. In that respect, they relied
upon the cases of Muhammad Tufail and others, (2)
Shaikh Muhammad Amjad,
(3) Molvi Noor Muhammad
and others, (4) Amanullah and others,
(5) Rashid Ahmed, (6) Pir Sabir Shah, (7) Karachi Dock Labour
Board, (8) Muhabbat Ali and another and
(9) Dr. Zahoor Mehdi (Supra), but these cases hardly
support their contention. There can be no denial to the fact that on remand
from honourable Apex Court, the question of
jurisdiction of ATA Court was pending determination before this Court when both
the parties by extending consent withdrawn their objection to the jurisdiction
of learned trial court. Prima facie, it was such consenting arrangement which
had resulted in not determination of the question of jurisdiction, on merits
though in earlier round, this Court had found the case to be tried by the Court
of ATA. Therefore, the appellants at such stage are not legally justified to
raise such plea. Even otherwise, the appellants could have raised such
objection during trial thereby challenging the applicability of Section 6/7 of
the ATA. In addition, the learned Trial Court has also convicted the appellants
for offence under section 7 of the ATA which is also indicative of the fact
that such aspect was also considered by the trial Court. Such appreciation
resulted in convincing the learned trial Court to find the section of ATA
applicable to the case. Thus, such plea of the appellants is also of no legal
value particularly to seek an acquittal.
25. On merit, leaned counsel for the
appellants referred the cases of Shafiq Shah, Tariq Pervaiz, Rahat Ali, Muhammad Hussain, and
Syed Saeed Muhammad
Shah(Supra), but these cases too are of no help to the case of the
appellants, as the same are on distinguishable facts and circumstances. In case
of Shafiq Shah (Supra), no plausible explanation
was given by the complainant for not reporting the incident to police timely.
In the instant matter there is no such delay in reporting
the case to police. In case of Tariq Pervaiz (Supra)
it was held that single infirmity is sufficient to record acquittal of the
accused. It was narcotics case. In the instant matter no infirmity is appearing
to justify recording the acquittal of the appellants by extending them benefit
of doubt. In case of Rahat Ali (Supra)
there was inordinate delay of one month in reporting the incident to police. In
the instant matter there is no such delay in reporting the incident to police.
In case of Muhammad Hussain (Supra) the main reason for acquittal of the
accused was that there was no identification parade. In the instant matter there
was hardly a need for identification parade of the appellants as both the parties
were known to each other very well. In case of Syed
Saeed Muhammad Shah (Supra) the witnesses made
improvement which made their version not worthy of reliance. It was case of
Zina. In the instant matter no improvement is made by the witnesses on the
merit of the case which could have made their version to be not worthy of reliance.
26. In view
of the facts and reasons discussed above, it could be concluded safely that no case
for making interference with the impugned judgment is made out by this Court.
Consequently, all the three appeals stand dismissed.
J U D G E
J U D G E
Rafi