PLJ 2002 Cr.C. (
Present: tassaduq hussain jilani and asif saeed khan khosa, JJ. MUHAMMAD AKHTAR and another-Appellants
versus STATE-Respondent
Crl. Appeal Nos. 2013 of 2000, 165-J of 2001 and M.R. No. 1/T of 2001, herd on 16.4.2002.
—-S. 302(b)/34/449 read with S. 10(4) of
Offence of Zina (Enforcement ;ofHudood) Ordinance, 1979--S. 7
Anti-Terrorism Act, 1997--Murder, rape
etc. by 3 persons-Conviction and
sentence-Appeal against-Complainantparty
knew appellant since before occurrence complainant and victim
who was raped was a natural witness-Both witnesses had absolutely noback-ground of animosity with appellant to falsely
implicate -him—
Wintesses statements had received
ample support from medical evidence--Incident
commenced at 2.30 A.M. during a night but to have continued
till morning-Presence of lantern
inside room where occurrence hadtaken
place and duration of incident left no doubt that complainant andvictim girl had ample opportunity to identify one
of the perpetrator-Twoother appellant
nominated in supplementary statement four days after
occurrence without any valid basis-Waj Takkar evidence provided
by andwitness has been found utterly
unreliable as he had seen- three personsrunning away and he had not
disclosed as to how he had identified thosethree
persons to be appellants especially when occurrence had takenplace during a night and this witness had never
claimed to be carryingany light with
him-There are serious doubts regarding two appellant'sidentification and implication as co-culprits of
main appellant-Deathsentence of main
appellant confirmed whereas conviction and sentence oftwo co-culprits set aside and they are acquitted
of charge by extending
benefit of doubt.[Pp. 574 to 576] A, B & C
Mrs. Eram Sajjad Gul, Advocate (Defence Counsel) for Appellants at the State expense.
Mr. Sadaqat Mehmood Butt, Advocate for State. Date of hearing: 16.4.2002.
order
Asif Saeed Khan Khosa, J.-Muhammad Akhtar alias Hussaina, Muhammad Yaseen and Sarfaraz alias Shabbu appellants were convicted by the learned Judge, Anti-Terrorism Court, Faisalabad for an offence under Section 449/34, PPG vide judgment dated 19.12.2000 and were sentenced to rigorous imprisonment for ten years each and to pay a fine of Rs. 1,00,000/-each or in default of payment thereof to undergo rigorous imprisonment for
two and a half years each. All the appellants were also convicted for an offence under Section 302(b)/34, PPC and were sentenced to death each by way of Ta'zir and to pay a sum of Rs. 1,00,000/- each to the heirs of Manzoor Ahmad deceased byway of compensation under Section 544-A, Cr.P.C. or in default of payment thereof to undergo rigorous imprisonment for seven years each. The appellants were further convicted for an offence under Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and were sentenced to death each by way of Ta'zir. All the appellants were also convicted for an offence under Section 7 of the Anti-Terrorism Act, 1997 and were sentenced to death each and a fine of Rs. 1,00,000/- each or in default of payment thereof to undergo rigorous imprisonment for seven years each. The sentences of imprisonment passed against the appellants were ordered to run concurrently and the benefit under Section 382-B, Cr.P.C. was extended to the appellants. Muhammad Akhtar alias Hussaina and Muhammad Yaseen appellants have challenged their convictions and sentences before this Court through Criminal Appeal No. 2013/2000. The said appellants as well as their co-appellant namely Sarfaraz alias Shabbu have also filed Criminal Appeal No. 165-J/2001 before this Court against their convictions and sentences recorded by the learned trial Court. We have heard both these appeals alongwith Murder Reference No. l-T/2001 seeking confirmation of the sentences of death passed against the appellants and we propose to decide all these matters "together through the present consolidated judgment.2. The prosecution's case unfolded in the FIR was that Muhammad Iqbal complainant was a labourer by profession and his brother namely Manzoor Ahmad used to live in a Dhari in Chak No. 659/G.B. situated within the area of Police Station Dajkot, District Faisalabad. During the night between 11/12.10.1999 Muhammad Iqbal complainant had come to his brother Manzoor Ahmad's Dhari and had stayed there over-night. During that night he was sleeping in the same room with his brother Manzoor Ahmad, their nephew Muhammad Ali and the said Muhammad Ali's wife namely Mst. Tassawar and a lantern was alight in the room. At about 2/2.30 a.m. the complainant, his brother and their nephew woke up upon hearing the voice of Mst. Tassawar and saw Muhammad Akhtar alias Hussaina appellant and two unknown persons trying to take Mst. Tassawar forcibly out of the said room. Manzoor Ahmad tried to take Mst. Tassawar out of the clutches of the culprits whereupon Muhammad Akhtar alias Hussaina appellant gave a Chhurri blow hitting Manzoor Ahmad in his left arm-pit. Another Churri blow was then given by the said appellant again hitting Manzoor Ahmad in his left arm-pit. Thereafter .the two unknown culprits also gave Churri belows to Manzoor Ahmad on his left upper arm and left wrist. Upon receipt of those injuries Manzoor Ahmad fell down and the complainant and Muhammad Ali tried to handle him and during this while all the three culprits took Mst. Tassawar out of that room and bolted the door from outside whereafter they put Mst. Tassawar on a cot in front of that door and started committing rape with her. The culprits had threatened the complainant, etc. not to raise any noise lest they may be killed. After some time the culprits opened the door of the room and pushed Mst. Tassawar inside the room, locked the said door from outside and started guarding the place. In the meanwhile Manzoor Ahmad succumbed to his injuries at the spot. During this period the culprits had been issuing threats that the complainant, etc. would be done to death if they raised any noise. In the morning Muhammad Yaqoob and Slier Muhammad PWs came to the said Dhari and upon seeing them approaching the culprits decamped from the spot. The said witnesses then broke the door open and brought the complainant party out of the room. The complainant then proceeded to report the matter to the police and met Inayatullah, S.I. (PW-12) at the • Hospital Road, Dajkot whereat he made a statement in respect of the said incident. On the basis of the said statement FIR No. 293 was registered at Police Station Dajkot, District Faisalabad at 6.30 p.m. on 12.10.1999 at the instance of Muhammad Iqbal complainant for offences under Section 302/34, PPC and Section 10 of the Offence ofZina (Enforcement of Hudood) Ordinance, 1979.
After recording the
statement of the complainant Lnayatullah, S.I.(PW-12) took up the investigation of
this case -and went to the place of
occurrence whereat he
inspected the dead-body of Manzoor Ahmad and alsoinspected the place of occurrence. He prepared an injury statement and
aninquest report in respect of the deceased and dispatched the dead-body
to themortuary for autopsy. He then secured
the blood-stained earth, the blood
stained bedding, a lantern, prepared
a rough site-plan of the place ofoccurrence, recorded
the statements of witnesses
and then sent Mst,
Tassawar to the hospital for her
medical examination.Dr. Liaqat Ali
(PW-5) conducted post-mortem examination of the
dead-body of Manzoor Ahmad deceased
on 12.10.1999 at 4.00 p.m. and foundfive
injuries on the dead-body which were all ante-mortem and had been
caused by a sharp and pointed weapon.
The cause of death was shock andhaemorrhage
and probable duration between the injuries and death was
opined to be within one hour while
that between the death and post-mortemexamination
was within 12 to 18 hours. On the same day, i.e. 12.10.1999
Mst. Tassawar was medically examined by Dr. Munazza Khurshid
(PW-10).After post-mortem examination of
the dead-body Inayatullah, S.I.(PW-12)
received the last-worn clothes of the deceased and secured theShalwar of Mst. Tassawar. On 16.10.1999 he recorded the supplementarystatements
of Muhammad Iqbal complainant and Mst. Tassawar PWwherein they nominated
Sarfaraz alias Shabbu and Muhammad Yaseenappellants as the two hitherto unknown culprits accompanying MuhammadAkhtar alias Hussaina appellant. On
23.10.1999 all the three appellantswere
arrested. Thereafter a formal site-plan of the place of occurrence wasgot prepared by him through a Patwari. On
7.11.1999 he got all the threeappellants
medically examined by Dr. Saeed Akbar Tariq (PW-1) for their 574
potency. Thereafter, after completion of the other formalities, he completed his investigation and submitted a challan.
6. At the commencement of the trial the learned trial
Court frameda Charge with four heads
under Section 449, PPC, Section 10(4) of the
Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section
302/34,PPC and Section 7 of the
Anti-Terrorism Act, 1997 to which the appellants
pleaded not guilty and claimed a trial.7. During the
trial the prosecution produced as many as
13witnesses in support of its
case against the appellants. Muhammad Iqbalcomplainant (PW-7) and Mst.
Tassawar (PW-8) furnished the ocular accountof the incident. Sher Muhammad (PW-9) provided the Waj Takkar evidence.The medical evidence was provided by Dr. Saeed
Akbar Tariq (PW-1), Dr.Liaqat Ali
(PW-5) and Lady Dr. Munazza Khurshid (PW-10). Inayatullah,
S.I. (PW-12) stated about the various
steps taken by him during theinvestigation of this
case. The remaining
evidence produced by the
prosecution was merely formal in
nature.8. In
their statements recorded under Section 342, Cr.P.C. theappellants
denied and controverted all the allegations of fact levelled againstthem by
the prosecution and
professed their innocence.
They hadmaintained in unison that it was a blind murder and they had falsely beenimplicated in this case. The appellants, however,
opted not to make anystatement on
oath under Section 340(2), Cr.P.C. and they also did notproduce any
witness in their defence.9. At
the conclusion of the trial the learned trial Court found theprosecution's case against the appellants to have
been proved beyondreasonable doubt
and, thus, the appellants were convicted and sentenced asmentioned and
detailed above. Hence, the present appeals and the connectedMurder Reference
before this Court.10. We have heard the learned counsel for
the parties and have gonethrough the record
with their assistance. It has been argued by the learnedcounsel for the appellants that it was a case of a
night occurrence whereinthe culprits had not been properly identified;
the appellants had no motive toperpetrate
the alleged offences; nothing had been recovered from theappellants dring the investigation of this case;
and the prosecution had
failed to prove its case against the
appellants beyond reasonable doubt. Asagainst
that the learned counsel for the State has maintained that the guilt
of the appellants had been proved ,by
the prosecution to the hilt and,therefore,
the convictions and sentences of the appellants recorded by the
learned trial Court do not warrant any
interference by this Court.11.After hearing the learned counsel for the parties
and going
through the record it has
straightaway been noticed by us that it hadthroughout been the prosecution's case that the complainant party knew
Muhammad Akhtar alias Hussaina
appellant since before the occurrenceand
this aspect of the matter was fortified from the statement made by the said appellant under Section 342, Cr.P.C. which
confirmed the fact of such acquaintance
of the complainant party with Muhammad Akhtar alias Hussaina appellant.
Muhammad Iqbal complainant (PW-7) anrf Mst. Tassawar (PW-8) had straightaway named this
appellant in their first statements
made before the police. Mst. Tassawar (PW-8) was a resident of the Dhari
where the occurrence had taken place and, thus, she was a natural witness of the occurrence. During the said
occurrence she had herself been subjected
to rape and, thus, her presence at the spot at the relevant time could not be seriously questioned or doubted.
Muhammad Iqbal complainant used to live in his own Dhari which was
situated at a place not far away and his
explanation for spending the night with his brother namely Manzoor Ahmad deceased at the latter's Dhari has not been
found by us to be either unusual or
unnatural. Both the said witnesses had absolutely no background of animosity with Muhammad Akhtar alias Hussaina
appellant so as to falsely implicate
him in a case of this nature. The said witnesses had made consistent and straightforward statements before
the learned trial Court and their
statements had received ample support from the medical evidence. It may be true
that the incident in this case commenced at 2.30 a.m. during a night but the
said incident was said to have continued till morning. The presence of a lantern inside the room where the
occurrence had taken place and the duration of the incident have left us with
no doubt that Muhammad Iqbal complainant (PW-7) and Mst. Tassawar
(PW-8) had ample opportunity to identify
Muhammad Akhtar alias Hussaina appellant as one of the perpetrators of the offences involved in this
case. We have, thus, felt no hesitation
in concluding that the prosecution had indeed succeeded in proving its
case against Muhammad Akhtar alias Hussaina appellant beyond reasonable
doubt.
12. As regards Muhammad Yaseen and Sarfaraz alias Shabbu appellants it has been noticed by us that they had not been identified during the occurrence. Muhammad Iqbal complainant had maintained that he had made a supplementary statement before the Investigating Officer after about 2/3 days of the occurrence wherein he had nominated these appellants to be the co-culprits of Muhammad Akhtar alias Hussaina appellant. Mst. Tassawar (PW-8) had stated before the learned trial Court that the identity of these appellants had become known to her after four days of the occurrence and also that she did not know these appellants previously. Even Muhammad Iqbal complainant (PW-7) had stated before the learned trial Court that he had never seen these appellants prior to the occurrence. InayatuJlah, S.I. (PW-12), the Investigating Officer, had deposed that the supplementary statements of Muhammad Iqbal complainant (PW-7) and Mst. Tassawar (PW-8) had been recorded by him on 16.10,1999, i.e. four days after the occurrence and it was in those supplementary statements that these witnesses had nominated these two appellants for the first time. The record of this case shows that Muhammad Iqbal complainant (PW-7) and Mst. Tassawar (PW-8) had never disclosed before the Investigating Officer or even before the learned trial Court as to on what basis they had subsequently identified and nominated these two appellants to be the co-culprits of Muhammad Akhtar alias Hussaina appellant. The Waj Takkar evidence provided by Sher Muhammad (PW-9) has been found by us to be utterly unreliable as he had seen three persons running away and he had not disclosed as to how he had identified those three persons to be the present appellants especially when the occurrence had taken place during a night and this witness had never claimed to be carrying any light with him. Even otherwise had this witness correctly identified these two appellants to be the co-culprits of Muhammad Akhtar alias Hussaina appellant then he would have straightaway disclosed their identity to Muhammad Iqbal complainant (PW-7) and Mst. Tassawar (PW-8) and in such a case it would not have taken the said witnesses four days to make their supplementary statements before the Investigating Officer nominating these appellants. In these circumstances we have entertained serious doubts regarding Muhammad Yaseen and Sarfaraz alias Shabbu appellants' identification and implication as co-culprits of Muhammad Akhtar alias Hussaina appellant.
13. For
what has been discussed above these appeals are accepted to the extent of Muhammad Yaseen and Sarfaraz alias
Shabbu appellants,
their convictions and sentences
recorded by the learned trial Court are set aside and they are acquitted of the Charge by extending the benefit of
doubt
to them. They shall be released from the jail forthwith if not required in any other
case. These appeals
are, however, dismissed
to the extent
of
Muhammad Akhtar
alias Hussaina appellant
whose convictions and sentences
recorded by the learned trial Court are upheld and maintained
subject to the modifications that in
default of payment of compensation to the
heirs of Manzoor
Ahmad deceased he
shall undergo simple
imprisonment for six months instead
of rigorous imprisonment for seven years ordered by the learned trial Court and
his conviction under Section
10(4) of the Offence of Zina (Enforcement
of Hudood) Ordinance, 1979 is substituted with one under Section 10(3) of the
said Ordinance of 1979 and
for that offence he shall undergo
rigorous imprisonment for twenty-five years. In view of our findings recorded above Murder Reference
No. 1-T of 2001 is answered in the
negative as far as Muhammad Yaseen and Sarfaraz
alias Shabbu appellants are concerned
and the said Murder
Reference is answered in the affirmative to the extent of Muhammad
Akhtar a//as Hussaina
appellant whose two
sentences of death
are hereby
confirmed. Death sentences of Muhammad Yaseen and Sarfaraz alias
Shabbu appellants are not
confirmed. 16. Death sentences
of Muhammad Akhtar
alias Hussaina
appellant are confirmed.
(A.P.) Order accordingly.