2016 PLP 188 (YLRN)

SHAHID HAMEED DAR, J.

This Criminal Appeal (No.461 of 2007) and Criminal Revision No.275 of 2007 arise from judgment dated 27.2.2007, whereby learned Additional Sessions Judge, Kharian (Gujrat) convicted Zulfiqar Ahmad and Abdul Razzaq (appellants) under sections 302(b), 324, 337-F(iii), 148, P.P.C. and sentenced them as under:- i) Under section 302(b), P.P.C.: to imprisonment for life each with the direction to pay a sum of Rs.50,000/- each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., in default whereof to further undergo simple imprisonment for six months each. ii) Under section 324, P.P.C.: to rigorous imprisonment for ten years each with fine of Rs.20,000/- each for launching murderous assault each on Abdul Munaf injured (P.W.10) and Jameel Ahmad injured (P.W.11), in default whereof to further undergo simple imprisonment for two months each. iii) Under section 337-D P.P.C.: to rigorous imprisonment for two years each as Ta'zir with the direction to pay Arsh each, i.e. 1/3rd of the Diyat to Abdul Munaf injured (P.W.10). iv) Under section 337-F(iii), P.P.C.: to rigorous imprisonment for six months each as Ta'zir to the extent of causing injuries to Jameel Ahmad (P.W.11) with the direction to pay Daman of Rs.5000/- each to the said injured. v) Under section 148, P.P.C.: to rigorous imprisonment for one year each. They were, however extended the benefit of section 382-B, Cr.P.C. with the observation that their sentences would run concurrently.

2. The occurrence took place, at 7.45 a.m. on 26.10.2004, in the area of village Tooray, situated at a distance of five miles towards east from Police Station Sarai Alamgir. It was reported by Rasheed Arshad (complainant/P.W.9) to Muhammad Akram SI (P.W.12) at village Fareed Jaggo, at 8.20 a.m., who reduced into writing complaint (Exh.PZ) and despatched it to Police Station through Muhammad Afzaal 485/C for registration of case, on the basis whereof Muhammad Sadiq ASI/DO drew up formal FIR (Exh.PZ/1), at 8.45 a.m., the same day.

3. The prosecution case as alleged by the complainant (P.W.9) is that he along with Raja Muhammad Hanif, Jameel Ahmad and Abdul Munaf alias Sajid rode vehicle No.MRAA-882, which was driven by him, on 26.10.2004; Raja Muhammad Hanif (deceased) occupied the front seat, whereas Jameel Ahmad and Abdul Munaf alias Sajid occupied the rear seat; they had hardly left their village for the police station when two unknown motorcyclists started chasing them and made dubious phone-calls to someone; it was at about 7.45 a.m., when they reached canal Upper Jhelum-embankment, within the area of Toor, where Abid Mehmood (since PO), Ijaz Hussain (since PO), Zulfiqar Ahmad (appellant), Abdul Razzaq (appellant), Amjad (since PO) and Sudheer (since PO), all armed with Kalashnikovs, suddenly came in front of their vehicle; they opened firing due to which tyres of their vehicle were burst and it slowed down; Abid accused made a fire shot, which hit left lumber area of Raja Muhammad Hanif; Amjad's fire shot landed at left deltoid of Raja Muhammad Hanif; the fire shot of Ijaz Hussain hit left elbow of Jameel Ahmad; the bullets fired by Zulfiqar Ahmad (appellant), Abdul Razzaq (appellant) and Sudheer (since PO) landed at the left side of chest, right side of back and below right axilla of Abdul Munaf; he (complainant) luckily escaped any injury on his person; the vehicle was riddled by the firing of the accused and its panes were smashed; the occurrence was witnessed by Muhammad Inayat and Khalil Ahmad (PWs not produced); after satisfying themselves that all the riders had been murdered, the accused and the motorcyclists fled the spot while firing and raising Lalkaras; Muhammad Nazir and Master Ghulam Murtaza accused abetted the crime; he (complainant) was informed early in the morning by Jamshed Ahmad and Iftikhar Ahmad that all the accused gathered at the poultry farm of Muhammad Nazeer, where Master Ghulam Murtaza and Muhammad Nazeer provoked them by saying that Rashid Arshad and Raja Muhammad Hanif would keep degrading them till they lived so they be killed; they undertook to bear all the expenses of the litigation, whereon all the accused agreed to act, as commanded; he and his companions were moving towards Police Station Sarai Alamgir to report the incident of conspiracy of the accused, when they were ambushed and done the damage by them. The motive behind the occurrence was that Zulfiqar Ali, Behnoi of Abid accused had got lodged case FIR No.281/04, dated 15.4.2004, under sections 324, 337-F, P.P.C. at Police Station Sarai Alamgir against them (complainant party) wherein Raja Muhammad Hanif used to help them, due to which, accused committed the crime.

4. Dr. Syed Islam Zafar (P.W.2) medically examined Abdul Munaf and Jameel Ahmad injured PWs, at 8.55 a.m. on 26.10.2004. He vide medico-legal reports Exh.PA and Exh.PB, found following injuries on their persons:- ABDUL MUNAF:

1. A firearm wound 1/8 cm x 1/8 cm on front of left chest 3 cm above nipple. No burning but bleeding was perfused/Corresponding mark of injury was present on Qameez.

2. A firearm wound 1/8 x 1/8 cm under right armpit, burning was positive. Bleeding perfused. Mark of injury was positive on Qameez.

3. A firearm wound 1/2 cm x 1/2 cm on inferior border of right scapula at back, burning was positive. Mark of injury present on the Qameez.

4. A firearm wound 1/2 cm x 1/2 cm on left scapula region and back at inferior border of the scapula, bleeding perfusely. Corresponding mark of injury was present on Qameez. JAMEEL AHMAD:

1. A lacerated (crushing) wound 6 cm x 4 cm in front of left forearm from elbow joint to middle of forearm, burning was positive, bleeding perfusely. Corresponding mark of injury was present on the Qameez.

5. Dr. Tahir Bashir (P.W.5) performed autopsy on the dead body of Raja Muhammad Hanif, at 1.15 p.m. on 26.10.2004. He observed, vide postmortem examination report (Exh.PD), following injuries thereon:-

1. A firearm entry wound 1cm x 1 cm on the right arm laterally. No blackening was present.

2. A firearm exit wound 1cm x 1 cm on the right upper arm medially.

3. A firearm entry wound 1 cm x 1 cm right chest in the middle axillary line.

4. A firearm exit wound 3cm x 2 cm on the left chest in mid axillary

5. A firearm entry wound 1 cm x 1 cm on the left upper arm.

6. A firearm exit wound 3 cm x 3 cm on the left upper arm laterally. The medical officer opined that death in this case was due to injury No.3, which had caused excessive haemorrhage and shock. The probable time that elapsed between injuries and death was "less than 15 minutes" and that elapsed between death and postmortem examination was less than eight hours.

6. Initially, Muhammad Akram SI (P.W.12) carried out the investigation of this case. He took into possession blood of the deceased by means of cotton from the front seat of the vehicle vide seizure memo Exh.PBB; secured thirty crime empties, eighteen of Kalashnikov and twelve of .222-bore, from the place of occurrence through memo of recovery Exh.PCC and vehicle (P6) with broken window-panes and burst tyres vide recovery memo Exh.PAA. On his retirement, investigation was entrusted to Gulzar Ahmad SI (C.W.1), who arrested the appellants, Zulfiqar Ahmad and Abdul Razzaq as well as their acquitted co-accused Sufi Nazeer and Ghulam Murtaza on 4.2.2005. On completion of investigation, he prepared report under section 173, Cr.P.C. and submitted it before the learned trial court for trial of the accused in accordance with the law.

7. To prove its case, the prosecution produced twelve witnesses. Dr.Syed Islam Zafar (P.W.2) proved the medico-legal reports (Exh.PA and Exh.PB) of Abdul Munaf injured and Jameel Ahmad injured. Dr.Tahir Bashir (P.W.5) proved contents of the postmortem examination report (Exh.PD) of the deceased. Rasheed Arshad complainant (P.W.9), Abdul Munaf injured (P.W.10) and Jameel Ahmad injured (P.W.11) furnished the ocular account. They claimed to have seen the appellants Zulfiqar Ahmad and Abdul Razzaq, joined by their co-accused firing at the said vehicle and killing Rana Muhammad Hanif, besides causing injuries to Abdul Munaf and Jameel Ahmad. The eye-witnesses also supported the motive as alleged by the prosecution. Muhammad Akram SI (P.W.12) and Gulzar Ahmad SI (C.W.1) are the investigating officers, who rendered details of the investigation conducted by them. Rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr.P.C., Zulfiqar Ahmad (appellant) denied all the incriminating circumstances, put to him and in reply to question No.11, "Why this case against you and why the PWs have deposed against you?" he stated as under:- "The case against me is totally false and baseless. 1 have been involved in this case simply for the reason that absconding accused are my close relatives. Neither 1 was present at the place of occurrence nor I made any firing on any P.W. On the alleged day of occurrence, I was in Rawalpindi in connection with my service with Mujahid Hussain and Walayat Hussain. To this effect, I made my first statement before the IO fully supported by evidence of other witnesses who deposed through affidavits confirming my version of plea of alibi. The present case is simply for the reason that the complainant party involved the maximum number of the family of accused Abid Hussain so that nobody should be left free to pursue the case. My involvement is result of wider net." Abdul Razzaq (appellant) also denied the charge against him and professed his complete innocence in this case, when he tendered almost identical reply to question No.11 like the co-appellant, except for the fact that he emphatically showed his presence at Lahore at the relevant time of the occurrence. In defence, Zulfiqar Ahmad appellant produced Mujahid Hussain (D.W.2), who stated in his testimony that Zulfiqar Ahmad visited his house at Rawalpindi at about 8.30 a.m. on 24.10.2004; he stayed with him till 28.10.2004; he was jobless and he visited him to get the one; further deposed that his brother Walayat Hussain accompanied him when he joined the investigation to support plea of alibi of Zulfiqar Ahmad accused (appellant); lastly contended that Zulfiqar Ahmad was innocent and he had no hand in the alleged occurrence. Iftikhar Ahmad (D.W.1) appeared on behalf of Abdul Razzaq (appellant) and contended that Abdul Razzaq worked along with him in a factory, which manufactured tractors spare-parts at Ismailpura Lahore; Abdul Razzaq worked with him in the factory from July 2004 to January 2005; he stayed along with him at the said work-place from morning of 26.10.2004 till evening, the same day; Abdul Razzaq came to know about his involvement in this case through a telephone-call, which he received on 27.10.2004; lastly said that Abdul Razzaq accused was innocent. Zulfiqar Ahmad (appellant) tendered certified copy of FIR No.244/2005, dated 13.5.2005, Police Station Sarai Alamgir (Exh.D1), certified copy of FIR No.498/2004, dated 31.7.2004, Police Station Sarai Alamgir (Exh.D2), a copy of report under section 173, Cr.P.C. qua FIR No.281/2004, dated 15.4.2004, Police Station Sarai Alamgir (Exh.D3) as well as copy of said FIR (Exh.D4), copy of FIR No.554/1998, dated 1.11.1998 (Exh.D5), copy of FIR No.57/2004, dated 14.5.2004, Police Station Civil Lines Jhelum (Exh.D6), copy of FIR No.374, dated 28.11.1992, Police Station Sarai Alamgir (Exh.D7) and certified copy of Rapat No.6, dated 13.6.2005, Police Station Sarai Alamgir (Exh.D8), all under objection of the other side, and closed the defence evidence. On culmination of trial, the learned trial court pronounced verdict of guilt against the appellants, in mentioned terms.

9. Learned counsel for the appellants contended that the prosecution badly failed to prove its case beyond reasonable shadow of doubt, inasmuch as there existed strong reasons to believe that the witnesses of ocular account had not seen the occurrence; their statements suffered from material contradictions/ discrepancies; the story of FIR, as narrated by Rasheed Arshad complainant (P.W.9) is unbelievable as it was he, who had direct enmity with the accused, but he did not receive even a scratch on his body; the appellants have no concern with the motive as Raja Muhammad Hanif (deceased) never came in their way during the course of investigation of case FIR No.281/2004 (supra); the appellants neither fired at the deceased, nor at Jameel Ahmad (P.W.11) and role attributed to them as to inflicting injuries on the person of Abdul Munaf injured (P.W.10) had not been substantiated by any incriminating material; the medical evidence is inconsistent with the eye-witness account as it suggested that the deceased and the injured PWs had been fired at through some soft bore weapons and not the rifled weapons, as alleged by the prosecution; they underwent maximum physical remand permissible under the law but nothing could be recovered at their instance; the appellants did not abscond in this case and evidence produced by the prosecution in this context is deficient by all means; lastly contended that the appellants did not participate in the occurrence and they had been falsely involved in this case under a conspiracy, therefore, they might be acquitted of the charge.

10. Conversely, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant supported the impugned judgment by submitting that the ocular account had been furnished by the natural witnesses, Abdul Munaf injured (P.W.10) and Jameel Ahmad injured (P.W.11); there existed no circumstance to infer that injuries of the injured witnesses were self suffered; the appellants absconded after the occurrence and they were duly proceeded against under section 87, Cr.P.C., before they were arrested by the police on 4.2.2005; mere fact that the appellants did not fire at the deceased or they caused injuries to only one person might not be sufficient to hold that they had some other object or design as regards their co-accused qua the occurrence, for they all murdered Raja Muhammad Hanif and almost killed two others with community of intention; the appellants were also connected with the motive; they failed to discharge the onus resting on their shoulders to prove their pleas of alibi during the trial.

11. We have heard the learned counsel for the parties and gone through the relevant record with their able assistance. On appreciating the evidence and the circumstances of the case, in line with the guiding principles as laid down by the superior courts from time to time in this context, I do not feel persuaded to agree with the learned counsel for the appellants, who did not ask for anything less than the acquittal of the appellants. It is found that the occurrence took place at 7.45 a.m. on 26.10.2004, when the day had dawned and the sun already arisen. Both the parties well knew each other, having been locked in criminal litigation for years, hence, there existed no probability of mistaken identity of the accused-appellants.

12. The occurrence took place at the embankment of canal Upper-Jhelum. The appellants, who are real brothers, inter-se, lived in village Dhoke Bengali and they travelled from the said village to the place of occurrence being armed with Kalashnikovs like their co-accused and ambushed vehicle of the deceased party, killing one at the spot and injuring two others. Their participation in the occurrence with a particular common object and community of intention can hardly be looked at inquisitively. The person, who received firearm injuries at their hands, namely, Abdul Munaf is the most important and crucial witness of the prosecution case, though Jameel Ahmad injured (P.W.11) is also important. The injured witnesses have successfully faced the test of cross-examination and their testimonies gained strength and sought corroboration from each other's respective depositions. There can hardly be found any inherent infirmity in their testimonies nor there can be found any material contradictions or discrepancies therein.

13. The complainant (P.W.9) showed himself a lucky person of unique kind in his statement, when he contended that the hot headed accused showered volleys of bullets from all sides of the vehicle, which he drove then, but he escaped unscratched. Another deposition in his testimony is of astounding nature, whereby he contended that the accused assured themselves of death of all the riders of the under-attack vehicle, before they whisked away. It was the complainant who had pitched enmity with the accused for years and it was he again, who was a nominated accused of the motive-attempted murder-case, FIR No.281/2004 (supra), got registered by Zulfiqar Ali (appellant), a brother-in-law (behnoi) of his co-accused Abid (since PO). Raja Muhammad Hanif (deceased) did not have any direct enmity with the accused. He had been murdered only for the reason that he helped Rashid Arshad (complainant/P.W.9) during investigation of the said criminal case. How did the accused let their dead enemy (complainant) go unharmed, especially after they checked everyone and satisfied themselves about the death of all, as deposed about by the complainant in his statement, before they fled the spot. The window-panes, on both the sides, including that on the side of the driver had been smashed to pieces by firing of the accused who drew close to the said vehicle still firing from all four sides, but complainant surprisingly remained uninjured in storm of bullets, which gives rise to a million-dollars question, if it was he, who drove the said vehicle at the crucial hour? This riddle is mind-boggling, which may reflect on his claim that he drove the said vehicle at the time of the alleged occurrence and survived the nightmare by a dint of luck. It cannot, however take us away from the testimonies of the injured witnesses, which are coherent inter-se and well-supported by the medical evidence besides the other incriminating circumstances of this case. Despite aforesaid observations, as to cloudy claims of the complainant, the FIR (Exh.PZ/1) has not altogether lost its efficacy, albeit it suffered from a lacuna or two in mentioned terms. It may still be taken into consideration, read with allied connecting material, for pronouncing a verdict of guilt against the accused. Reliance in this regard may be had on Mst. Rehmat Bibi v. Muhammad Najib and State 1997 PCr.LJ 331), Jawad Ali v. The State (1995 SCMR 1304) and Muhammad Riaz and 3 others v. The State (PLD 1994 Peshawar 102).

14. As noticed earlier, the back screen and the side-panes, all were smashed and body of the vehicle was perforated at many places due to firing of the accused, which fact can easily be verified from the contents of the seizure memo (Exh.PAA) pertaining thereto. The investigating officer Muhammad Akram SI (P.W.12) took into possession the dead body of Raja Muhammad Hanif from the bullet- ridden vehicle and he also recovered blood from the front seat of the vehicle through seizure memo (Exh.PBB), where ill-fated person had been fired at and killed. The eye-witness account, as tendered by the injured PWs, is directly corroborated by the medical evidence, adduced by Dr.Syed Islam Zafar (P.W.2) and Dr. Tahir Bashir (P.W.5). The argument of the learned counsel for the appellants that the deceased and the injured witnesses had received injuries off some soft bore weapons is without any substance as investigating officer collected eighteen crime empties of Kalashnikov and twelve crime empties of .222 bore from the place of occurrence through memo of recovery (Exh.PCC). Besides, the havoc wrought on the above said vehicle is of such a gravity, which rule out the probability of usage of soft bore weapon(s) in the occurrence.

15. The medical evidence has been called in question by the defence on the ground that a couple of injuries (Nos.2 and 3) as mentioned in the medico -legal report (Exh.PA) on the person of Abdul Munaf injured bore burning of the edges and the solitary firearm wound as mentioned in Exh.PB on the person of Jameel Ahmad (P.W.11) also bore the same characteristics, therefore, it could not be believed that they had been fired at from a distance of 30/40 feet, as deposed about by the said witnesses. This argument hardly carries any weight for two reasons, firstly, mere burning of edges of a firearm wound, without presence of blackening and smudging of hair around it, meant little to suggest that the firing had necessarily been made from close quarters and, secondly, the eye-witnesses (P. W.10 and P.W.11) categorically stated in their testimonies that the accused made firing on the moving vehicle from the front as well as from both the sides and they continued it till the targetted vehicle stopped at a little distance, after it passed along them. The firing so made by the accused was not only distant but also from close quarters.

16. As discussed above, the two eye-witnesses, namely Abdul Munaf (P.W.10) and Jameel Ahmad (P.W.11) are the injured witnesses. Their presence at the spot for the said reason stands more than established. I do not see any inherent infirmity in their statements. The number of injuries found on the person of the deceased and injured prosecution witnesses commensurate with the number of the assailants, having been specifically named by the eye-witnesses. The motive is yet another circumstance, which links the appellants with the commission of the offence. Zulfiqar Ahmad appellant was complainant of the motive-case (FIR No.281/2004) as mentioned in the FIR (Exh.PZ/1), which had been registered against Rasheed Arshad (complainant/P.W.9) and others. This FIR has been tendered by appellant Zulfiqar Ahmad in defence evidence as Exh.D

4. The previous enmity between the parties is an admitted fact which motivated the appellants to participate in this heinous crime.

17. The recovery of vehicle (P6), surf No.882-MRAA was taken into possession by the investigating officer Muhammad Akram SI (P.W.12) vide memo of recovery (Exh.PAA), the contents whereof revealed that its tyres were deflated and panes broken. The seizure memo had been attested by Rasheed Arshad (complainant/P.W.9) and Muhammad Inayat (PW not produced). The recovery of thirty crime empties, eight of Kalashnikov and twelve of .222-bore vide memo of recovery (Exh.PCC), attested by same set of witnesses is yet another corroboratory circumstance in this case. The appellants have provenly been connected with the commission of the crime, right from the stage of firing at the tyres of the vehicle, rendering it deflated, till the last bullet was fired by them. I do not see any reason to disbelieve visual-account of the occurrence as tendered by the eye-witnesses, especially P.W.10 and P.W.11. The medical evidence as tendered by Dr. Syed Islam Zafar (P.W.2) and Dr.Tahir Bashir (P.W.5) is in line with the ocular account and the motive, in the backdrop of admitted enmity between the parties, stood more than established.

18. Now, let us look at the defence evidence, it did not make any sense nor it impressed in any way, to say the least. Specific pleas of alibi had been raised by the appellants and they produced Mujahid Hussain (D.W.2) and Iftikhar Ahmad (D.W.1) in their defence but they failed to make any worthwhile deposition during their examination. Iftikhar Ahmad (D.W.1) who stated about presence of Abdul Razzaq (appellant) in his factory from morning till evening on 26.10.2004, frankly admitted that he did not maintain any documentary record qua running a factory by him. He did not maintain any accounts-record nor he had anything with him as to the names of his employees or their service record. Mujahid Hussain (D.W.2), who appeared on behalf of Zulfiqar Ahmad (appellant), admitted in his testimony that he was a jobless person and he could not help anyone in fetching a job. He gave no idea in his statement as to what sort of job Zulfiqar abroad accused was in search of. He admitted to have joined the investigation for the first time on 13.2.2005, around four months after the alleged occurrence. The documentary evidence tendered in defence increasingly established the factum of long standing enmity between the parties and nothing else. The defence evidence does not ring true at all, hence, brushed aside.

19. For all of the discussion made hereinabove, I am of the considered view that the learned trial court has rightly convicted the appellants Zulfiqar Ahmad and Abdul Razzaq and awarded them the above-said sentence. The impugned judgment does not suffer from any legal defect or infirmity. It is sustainable by all means and held as such. The instant appeal being devoid of merits is dismissed.

20. Insofar as Criminal Revision No.275 of 2007 filed by the complainant for enhancement of sentence of the appellants is concerned, it, being meritless, mainly for the reason that they (appellants) did not fire at or cause any injury to the deceased, stands dismissed. ZC/Z-15/L Appeal dismissed.