P L D 2006 Lahore 392 (PLP)

ALI NAWAZ CHOWHAN, J.

This judgment will dispose of Criminal Appeal No.365/2000 as well as Murder Reference No.598/2000, as these arises out of the same judgment dated 5-9-2000 handed down by Mr. Abdul Karim Langah, the learned Additional Sessions Judge, Jhelum, whereby the appellant Khalid Mehmood alias Saddro was convicted under section 302(b) read with section 34 P.P.C. for the Qatl-e-Amd of Atiq Ahmad and sentenced to Death as Ta'zir. He was further directed to pay a sum of Rs.50,000 as compensation to the legal heirs of the deceased, or in lieu thereof to suffer simple imprisonment for 6 months. He was further convicted under section 324/34 P.P.C. for launching a murderous assault on Muhammad Shafaat and sentenced to 5 years' R.I. along with a fine of Rs.5000, or in lieu thereof to further suffer simple imprisonment for 6 months.

2. The matter relates to case F.I.R. No.317 dated 3-9-1999 registered under sections 302, 324, 34 P.P.C. at Police Station Dina, Jhelum.

3. The occurrence relates to 7-9-1999. Malik Muhammad Shafaat (P.W.10) is an eye-witness as well as the complainant in this case, on A whose statement Exh.PF, the F.I.K. under reference, was registered. He remained steadfast to his statement as given in the F.I.R. while deposing before the trial Court on 29-6-2000.

4. Narrating the factual position of the case, he stated:-- "On 7-9-99 at about evening time of 7:00 P.M. after closing the workshop of my son Atiq, we both proceeded to our house. The said shop is situated in Wagon Stand in Dina. While we were proceeding to our home, on the turning of street, my son Atiq was carrying the pedestal fan on his shoulder. As we have taken the turn of the street, a burst was effected on us which hit Atiq completely. I also received some injury on my arm. On my turning the face backward, I saw Qazzafi, Latif and one third person who was not familiar to me, however, I had seen him at some occasion and was liable to identification. The burst hit my son on the back, whereas, some pellets hit me on my right arm. This occurrence was also witnessed by Muhammad Aslam and Muhammad Irfan. Muhammad Atiq, my son, succumbed to the injuries at the spot after few moments. We raised hue and cry. Police arrived at the spot. I gave my statement Exh.PF which was reduced into writing and read over to me and I signed the same in token of its correctness. The dead-body was shifted by the police to the hospital, I and Muhammad Aslam, P.W. also accompanied with the dead-body."

5. He had also witnessed the test identification parade in jail and according to him, he duly identified the appellant. The following excerpts from his testimony being relevant are re-produced below in extenso: -- "Identification parade was also held in the District Jail, Jhelum and I also attended the said identification parade. During the proceedings, I duly identified Khalid Mehmood alias Saddro in the said parade. The accused in now present in the Court." "It is correct that no recovery of any kind relating to this case, was effected in my presence. The accused did not get recovered anything in my presence." "The place of occurrence is situated at a distance of about 9 kilometres from the village. Akram, my first cousin was murdered by father of Qazzafi. 1 was an eye-witness in the said murder case. The father of Qazzafi was sentenced to death in the said case. Thereafter, our relatives, including my nephews and cousins and brother, were murdered at different occasions by Qazzafi and F.I.Rs relating to said cases were registered. Qazzafi and his co-accused in the said case have not been so far arrested." As soon as the burst was fired, the accused had run taking their heels towards backside. After the receipt of injuries I turned my face and saw the accused. At that time, two of the accused were running together and the third was following them. I had given the description of the unknown assailants to the Investigating Officer. The description which I given was that the accused was having big eyes, beard and thin body." "The accused has no enmity with me prior to the occurrence. It is correct that the present case got publication through newspapers in an extensive manner. It is correct that the District Administration as well as Chief Minister was pressurizing the local police to arrest the accused. Police was not able to arrest . Qazzafi and Latif."

6. Muhammad Aslam (P.W.11) another eye-witness to the occurrence and the cousin of the deceased, supported the prosecution case. The following excerpts from his testimony being relevant are re-produced below: "At the same time, we saw Qazzafi son of Muhammad Sharif armed with Kalashnikov, Muhammad Latif also armed with Kalashnikov, whereas Khalid Mehmood alias Saddro (now present in the court) was carrying ,7-MM were coming while following Muhammad Shafaat and Muhammad Atiq. We saw that Qazzafi and Latif fired at Muhammad Atiq with their respective weapons which hit on the backside of Muhammad Atiq. Khalid Mehmood accused now present in Court fired with his weapon which hit Muhammad Shafaat on his right arm. Muhammad Atiq died at the spot due to the fire-arm injuries and Muhammad Shafaat received injuries." "I joined the police investigation of this case and in my presence police took into possession empties, four in number of Kalashnikov from the place of occurrence and were' sealed into parcel. These empties were taken into possession vide memo Exh.PG and empties are Exh.P 3/1-4." On 18-11-1999, he witnessed the recovery of 7 m.m. rifle from Khalid Mehmood which the appellant had kept in a hilly track in that vicinity. This was taken into possession vide memo Exh.PJ. Along with the rifle, five live cartridges were also recovered. The following excerpts from his cross-examination being relevant are re-reproduced below:-- "It is correct that enmity between us is extending over a period of last 11 years. The same is with Qazzafi. We had no previous enmity with Khalid Mehmood or his family members. His village is situated at a distance of 12/14 miles from our village. The accused is residing in the area of Police Station Domeli." "The evening prayer call was made after about 15 minutes of the occurrence. Police had come to the spot after about 5 minutes of the prayer call (Maghrib)." "I named Qazzafi, Muhammad Shafique, Qaiser and Faisal accused only along with their respective weapons and 1 also assigned the role of firing by these four accused at my son. It is correct that the present accused has been challaned in this case as well. It is incorrect to suggest that the accused was not present along with Qazzafi and Latif at the time of commission of offence. It is further incorrect to suggest that the accused has been falsely involved in the present case as well as Case No.305 dated 26-8-99. Qazzafi and his near relations have not so far been arrested by the accused."

7. Bahli Khan, A.S.-I. (P.W.13) was the Investigating Officer, who conducted the investigation on 6-11-1999. He took the warrant of arrest against Muhammad Qazzafi and Latif, both absconding accused. He also recorded the statements of the witnesses under section 161 of the Cr.P.C. He is an attesting witness of the recovery of rifle from Khalid Mehmood, taken into possession vide Memo Ex. PJ, and a recovery of sum of Rs.4,50,000 which was got recovered from Khalid Mehmood concealed them in a field situated close to his house. The following excerpt from his testimony being relevant is re-produced below:-- "It is correct that Aslam and Arfan P.Ws. are real brother interne and they are eye-witnesses of this case."

8. Mazhar Hussain, Sub-Inspector/S.H.O (P.W.14) was then posted at Police Station Dina. Having heard about the occurrence, he went to the place of occurrence, accompanied by Muhammad Younas, Sub-Inspector and other police officials. At the spot, he recorded the - statement of Shafaat P.W. and on the basis of which the F.I.R. was later lodged. He inspected the spot, prepared the injury statement and the inquest report of the deceased and dispatched the dead-body for purposes of autopsy. He also recovered from the spot empty cartridges of Kalashnikov (P-3/1-4) vide memo Exh.PB. He then prepared the rough site plan. On 8-9-1999 he received the last worn clothes of the deceased vide memo Exh.PD. Later, on 12-9-1999 he took the Draftsman to the place of occurrence, who prepared the site plan Exh.PE and its duplicate Exh.PE/I. He arrested the appellant on 17-10-1999 who was sent to the judicial lock-up and after obtaining the orders of the Magistrate, got the test identification parade conducted on 23-10-1999. The following except is relevant from his cross-examination:-- "It is correct that the present murder case was a sensational case. It had got the publicity through media. It is correct that the accused named in the F.I.R. namely Qazzafi was a bitter enemy of the complainant party and allegations against him that he had committed the murder of 12/13 persons of the complainant party."

9. Muhammad Mohsin, Executive Magistrate (P.W.5) conducted the test identification parade. The following excerpts from his examination-in-chief and cross-examination are re-produced below in extenso: -- "Eight other persons, from the jail, of the same age and height and posture, were mixed with the accused Khalid Mehmood alias Saddro and he was asked if he had any objection for the arrangement but fie did not raise any objection and thereafter, Muhammad Shaffat P.W. was called in and he correctly, identified the accused among those prisoners." "I do not remember if the accused had made an Objection before me that he had already been made to identify by the P.W. at Police Station Dina? Jhelum. It is correct that the P.W. had stated before me that he already knew the accused, wherefore, he? had identified him." The underlined portion has been done by this Court.

10. Dr. Shahid Maroof (P.W.1) had conducted the autopsy on the dead-body of the deceased, who appeared to be young man with average built. He found the following injuries on his person:-- (1) Lacerated wound on the back of the left side about 4 c.m. away from lower thoracis region of vertebrae column measuring 1 c.m. x 1 c.m. with inverted margin, with metallic dust around the wound in about 12 c.m. x 12 c.m. This was mode of entry. (2) It was present in front of the chest. Approximately in the middle of sternum. It had averted margins measuring 1 c.m. x 1 c.m. The metallic particles had damaged the heart. This wound of exit to injury No.1. (3) Lacerated wound 1 c.m. x 1 c.m. on the back of the body and on left side in the left lumber region and about 10 c.m. away from the vertical colunm. This wound had inverted margins and fire-arm dust particle were present in an area of about 12 c.m. around this wound. This was wound of entry; (4) Lacerated wound 1 c.m. x 1-1/2 c.m. on the front of chest, in the lower part of the sternum. It was averted margin and it was directed up-route. This wound was about 8 c.m. below the exit wound of injury No.2 and was slightly on the left side of the midline. This metallic particle have damaged the left kidney, spleen, lever, diaphragm, mesentery and structure in anterior mediastinum and come from the chest at the side mentioned in the exit wound. (5) Lacerated wound 1 c.m. x 1 c.m. on the back of the left shoulder with inverted margin. Thus: was wound of entry. Wound of Exit: It was present on the upper part and anterior surface of left arm 1-? c.m. x 1-? c.m. it had everted margins. (6) Lacerated wound 1 c.m. x 1 c.m. inverted margins on the posterior surface of left arm (wound of entry). Wound of Exit: Lacerated wound 2 c.m. x 2 c.m. on the enterior surface of left arm. Slightly below the mid of upper arm. (7) (wound of Entry): 1 c.m. x 1 c.m. on the posterior surface of left elbow. (Wound of Exit) on the upper part of the anterior surface of left fore-arm 3 c.m. x 3 c.m. (8) Wound of Entry: 1 c.m. x 1 c.m. on the back of forearm below - the elbow. (Wound of Exit) On the anterior surface of left forearm in The lower part of the fore-arm 3 cm. x 3 c.m. After coming out, it has made a gutter shaped injury, then it fractured left little finger. (9) Clinical fracture of left humerus bone. The following was his opinion: After performing internal and external P.M. of the deceased, I am of the opinion that cause of death was injury No. 1 which had damaged the heart, contributed by injury No.2 which had damaged abdomen viscera leading to immediate shock and death. These injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature. The probable times lapse between injury and death was immediate. Time between death and post mortem was within ten hours." Ex. PA is the carbon copy of the post mortem report and Exh.PA/1 is the pictorial representation.

11. Muhammad Shafaat also received injuries during the occurrence c and his Medico-Legal Report was prepared by Dr. Atiq-ur-Rehman (P.W.6) who found the following injuries on his person:-- (1) Small incised wound 1 x 1/2 c.m. x ? c.m. on the back of right elbow. (2) Abrasion 2 c.m. x ? c.m. on the back of right elbow about 2 c.m. superior to injury No.l. Blackening was present on the ends of the wound. Injury No.1 was declared as 337-E(2) and injury No.2 was declared as 337-Eli. Injury No.1 was caused by sharp-edged weapon, and injury No.1 was caused by fire-arm weapon. Probable duration of injury was more than 24 hours." Exh.PD is his Medico-Legal Report.

12. In his statement under section 342, Cr. P. C. the case of the appellant was one of denial. As to why this case was made against his reply was as follows:-- "As per allegations in the F.I.R, Qazzafi and others are involved in this case about two dozen murders had taken place 1 the parties. Since long Qazzafi and others are absconding up to the Chief Minister Punjab, S.P. and D.C. wen pressurizing for the arrest of the accused but till now been arrested and during the days, the pressure was on level, I was arrested on suspicions and police only math escape goat and showed the higher officer that one co-pat Qazzafi has been arrested. In fact I have nothing to do with Qazzafi and others. I am innocent. I belong to a very poor family and nobody was to save me from the clutches police, therefore, I am facing the present trial." And about the identification parade, he said as follows:-- "I was made to sit at the police station. Therefore, a fake encounter with the police was shown and a F.I.R. was executed in, this behalf and thereafter I was sent to judicial lock-up the intervening period. I was shown to the complainant at the police station and he was made to believe that I was involved in the offence, thereafter he identified me."

13. Two witnesses were also produced in defence. These were Muhammad Akhtar (D.W.1) and Lal Khan (D.W.2). According to Muhammad Akhtar, the appellant was arrested from his house knew about this, because he had directed the police party towards his house when they had come to arrest him. He denied the suggestion that the appellant had any friendship with a known terrorist in the area Qazzafi. He denied the suggestion that the appellant was arrested an encounter. Lal Khan (D.W.2) came to state that the amount Rs.4,50,000 recovered from the appellant was actually lying in a b box and the police after taking the keys of the said iron box, recovered the same. He denied the suggestion that the appellant was arrester encounter or he was a member of the Qazzafi Group. But he admit fact that he did not appear before any higher police officer in support of what he was saying about that day. That he did appear before the Sub Inspector but his statement was not taken down.

14. Actually, it is this unknown person mentioned by the complainant accompanying the absconding two accused Qazza and Latif, who was later nominated as Khalid Mehmood. No description of this person was given in the F.I.R. If we refer to the statement given of the Mgaistrate who conducted the test identification parade, it is stated by him that the complainant had stated before him that he knew the Appellant already. Learned counsel has laid a lot of emphasis on his statement to build his story that in case Shafaat had made such a statement, why will he miss the name of Khalid Mehmood earlier and it was said that he would have definitely mentioned him by name in the F.I.R.

15. During his testimony, Shafaat complainant stated that he did not mention the name of the appellant but gave his description only to the police.

16. We find that the Magistrate was not re-examined on this point for any further clarification.

17. The learned Assistant Advocate General appearing for the State pointed to an answer to question No.4 recorded under section 342 of the Cr. P.C. and stated that it was not the case of the appellant that he was already known to Shafaat. It is further stated that no question was asked from Shafaat whether he already knew the appellant or not.

18. The complainant Shafaat had himself suffered injuries and there is nothing to suggest that these were self-suffered injuries. That there is no enmity inter se him and Khalid Mehmood. The question would be, why should not his testimony be believed as far as the involvement of Khalid Mehmood is concerned.

19. It was argued that the mandate which law provides to a Magistrate conducting the test identification parade is just limited. He was only required to record the objections of the accused. But he cannot keep recording or registering what the complainant side may have told him.

20. After having heard the learned counsel for the appellant as well as the learned Assistant Advocate General, we are of the considered view that the said Khalid Mehmood has an active role, in this case along with his other co-accused who are now absconding. But there are certain extenuating circumstances in his favour and we are pointing the same. These are: (1) he did not fire any shot at the deceased rather injured the P. W . ; (2) he was not nominated in the F.I.R. but it was through a E supplementary statement that his name came about although he was identified later on; (3). There is no previous enmity interse the parties and the possibility is there that he under the command of Qazzafi may, have fired a shot; (4) there is no direct motive against the appellant.

21. Under the circumstances, we, while treading on a safe path of justice,. reduce the sentence .of the appellant from Death to Life, Imprisonment. Obviously, benefit of section 382-B, Cr.P.C, all now accrue to the appellant. The rest of the, judgment of the trial court remain intact.

22. Since the appellant has been convicted and sentenced under section 302-B, Cr.P.C, we feel the conviction and sentence under section 324 P.P.0 to be redundant and we modify the sentence accordingly. The death sentence is therefore NOT CONFIRMED.

23. The Murder Reference is thus answered in the negative. H.B.T./K-21/L???????????????????????????????????????????????????????????????????????????????????? Order accordingly.