1994 P Cr (PLP)

JUSTICE RAJA AFRASIAB KHAN (MEMBER)

Aftab Masih (20) and Ghulam Mustafa (30) were convicted under different offences by Mr. Justice (Retd.) Gulbaz Khan, learned Judge, Special Court for Speedy Trials No.II, Lahore on 13-4-1993. Both were sentenced to death as Tazir under section 302(b)/34, P.P.C. on three counts for committing the murders of Mst. Sabiha Aqeel (36), Amir Ahmad (8) and Aatir Ahmad (3). They were ordered to pay Rs.10,000 (ten thousand) each as compensation to the legal heirs of three deceased. They were further sentenced under section 449/34, P.P.C. to R.I. for ten years and a fine of Rs.5,000 (five thousand) each or in default thereof to undergo R.I. for two years each. Likewise, they were sentenced under section 394/34, P.P.C. to imprisonment for life plus a fine of Rs.5,000 (five thousand) each or in default thereof to suffer R.I. for two years. They were also sentenced to ten years' R.I. plus a fine of Rs.5,000 (five thousand) each or in default to suffer R.I. for two years each for making a murderous assault on the life of Mst. Musfeera (?). It was directed that articles P.1 to P.7 and P.7/1, shall be returned to Aqeel Ahmad, complainant. The convicts have challenged their convictions and sentences by filing separate appeals (Criminal Appeal No.44/SAC/L of 1993 and Criminal Appeal No.46/SAC/L of 1993) before this Court, which shall be disposed of together by this judgment.

2. The facts, in brief, are that Aqeel Ahmad Bari (39) resides in House No.297/298, Umer Block, Allama Iqbal Town, Lahore. He runs his cloth business at 47-Anarkali, Lahore, in the name of Bari Centre. He used to go to attend his business at about 9-00 a.m. daily. On 5-9-1992 at about 9-15 p.m., he came back from his shop and pressed the bell of his house. No one came out to open the gate. One Asghar, a servant in the adjoining house 299, Umer Block came and opened the small gate of his house. He parked his car in the garage and entered the house only to find that his wife Mst. Sabiha Aqeel was lying in a pool of blood on the carpet. She had marks of strangulation on her neck. His sons Aamer Ahmad and Aatir Ahmad were also lying dead in the store-room of the house. Their necks were found to have been cut Musfeera, a suckling baby was lying there with a cloth wrapped around her neck. Fortunately, she was still alive. He checked his articles and found a VCR National No.10-G missing. However, he stated that he would give a detailed list of his missing articles. He complained that his wife and children had been done to death by some unknown accused. On his statement (Exh.P.E.), formal F.I.R. (Exh.P.E./1) was registered by Muhammad Ishaque (P.W.6) at 10-15 p.m. On 5-9-1992, a supplementary statement of Aqeel Ahmad Bari was recorded by Muhammad Azam, S.H.O. (P.W.14) disclosing that Muhammad Azam, S.H.O. and Muhammad Yaqub, A.S.I. reached the spot and found that Baba Fateh Muhammad (P.W.6), a servant of the family was lying unconscious in a nearby park. He was lifted and brought in an unconscious condition in the house of Muhammad Ayub Bari, father of the complainant. Baba Fateh Muhammad was given water whereupon he regained his conscience. Baba Fateh Muhammad disclosed that at about 3-00 p.m., he was present in the house of Aqeel Ahmad Bari where Ghulam Mustafa and Aftab Masih came. They had been coming to do sanitary work in the house of the complainant and, therefore, he knew them very well from their names and faces. The accused stated that they had been sent by the complainant to do some sanitary work in the house. Mst. Sabiha Aqeel was also informed about the arrival of accused. They were, thus, permitted to enter the house by wife of the complainant. At that time, Mst. Sabiha Aqeel and her children were going out to bring some medicine. The lady instructed Baba Fateh Muhammad to get the necessary work done in the bathroom. After some time, Mst. Sabiha Aqeel returned with her children. Baba Fateh Muhammad went to the house of Muhammad Ayub Bari, father of the complainant. After some time, he again came back to the house of the complainant. The house was lying closed. A small gate of the house was open. He entered the house through that gate and straightaway went to the passage of the street. He heard the cries of the lady and the children coming from inside. He rushed to the backside of the house and saw inside through a window. He was shocked to see Aftab Masih while strangulating Mst. Sabiha Aqeel with a wire. He also saw Ghulam Mustafa while holding a blood-stained Chhuri in his hand with which he cut the necks of the children and dragged them to the store-room. The lady died on account of strangulation. Baba Fateh Muhammad was very much terrified on seeing these gruesome murders. He left the place hurriedly and fell down in a nearby park and became unconscious. The complainant also gave the detail of the goods which were taken away by the accused from his house while committing robbery.

3. Muhammad Azam, S.H.O. (P.W.14) was on patrol duty in Karim Block on 5-9-1992. He received an information about the incident and immediately went to the spot. Inquest reports (Exh.P.O. to Exh.P.Q.) of Aatir Ahmed, Aamer Ahmad and Mst. Sabiha Aqil, were prepared by the Police Officer. Allah Ditta and Waris Ali, Constables took the dead bodies to mortuary for conducting post-mortem examination upon them. He inspected the spot and prepared rough plan (Exh.P.R.). Blood from the place of murder of Aamer Ahmed was collected vide memo. Exh.P.F. Blood from the place of murder of Aatir Ahmad was collected vide memo. Exh.P.G. The Police Officer summoned the Finger Prints Expert from the Office of Finger Print Bureau for taking the photographs of the finger prints having been found inside the house. The Police Officer was informed about the presence of Fateh Muhammad who was lying unconscious. On 6-9-1992, the Police Officer recorded the statement of Fateh Muhammad. Blood-stained shirt P.8, Nikkar P.9, of Aatir Ahmad were taken into possession vide memo. Exh.P.I. Blood-stained Shalwar P.10 and shirt P.11 of Aamer Ahmad were produced before the investigator which were taken into possession vide memo. Exh.P.J. Blood-stained shirt P.12, Shalwar P.13, Dopatta P.14, Brassier P.15, Cotton Shirt P.16, were produced and taken into possession vide memo. Exh.P.K. Imran Bokhari (P.W.8) prepared site plans vide Exhs.P.H. and P.H./i on instructions of investigator. On 6-9-1992, Aslam Niazi, Inspector produced Ghulam Mustafa accused before the Police Officer. Physical remand of Ghulam Mustafa was obtained on 7-9-1992. The accused was found to be injured and as such was got medically examined. On 12-9-1992, while in police custody, Ghulam Mustafa disclosed that he could lead to the recovery of weapon of offence. Accordingly, he led police to the recovery of Chhuri P.17 from his house which was taken into custody vide memo. Exh.P.G. VCR P.1, Time Piece P.3, Attache-case P.2, Two Gents Suits P.4 and P.5 were taken into possession vide memo. Exh.P.U. An application Exh.P.M. was moved by the Police Officer for permission for preparation of sample papers of finger prints. The application was allowed vide order Exh.P.M./1. The sample papers of finger prints Exh.P.M./2 were prepared in presence of Magistrate. Head Proficient of District Courts prepared the fingerprints. Aftab Masih was not traceable. He, in fact, had absconded. The Police Officer obtained the warrants of his arrest. He, however, could not be arrested. On 4-10-1992, the investigation of the case was entrusted to Muhammad Aslam, S.H.O. Police Station Nawan Kot. He prepared the report under section 173, Cr.P.C. and submitted challan for trial of the accused. Muhammad Aslam, S.H.O. (P.W.15) moved an application for taking up proceedings under section 87/88, Cr.P.C. against Aftab Masih accused. Under orders of the Magistrate, a proclamation was issued. The Police Officer arrested Aftab Masih on 19-10-1992. On 1-11-1992, while in police custody, Aftab Masih led the police party to the recovery of clutch cable (P.18) which was taken into possession vide memo. Exh.P.V. He got recovered golden ring P.6 and two prize bonds P 7 and P.7/l which were taken into possession vide memo. Exh.P.W. The Police Officer moved an application (Exh.P.J.) before the Magistrate for obtaining finger prints of Aftab Masih. The application was allowed and as such the Head Proficient prepared sample papers P.1/2 and P.1/3 of Aftab Masih in presence of Magistrate which were handed over to the investigator for their onwards transmission to the Finger Prints Bureau for comparison purposes. Muhammad Iqbal, S.I. (P.W.13) was summoned on 5-9-1992 by Muhammad Azam, S.H.O. at the police station for preparing the photographs of finger prints. He went there alongwith Rana Muhammad Idris, Sub-Inspector, Finger Prints Expert. He took photograph (Exh.P.N.) of the blood-stained finger-print impression from a wall of the house. Muhammad Idrees lifted impression from the left door of wooden Almirah. Muhammad Iqbal, S.I. (P.W.13) took a photograph of that impression vide Exh.P.N./1. He detected some blood over a piece of paper and also took photograph of that blood vide Exh.P.N./2. The photographs were enlarged. Mrs. Afshan Kiran Imtiaz, Magistrate 1st Class (P.W.11) deposed that Muhammad Aslam, S.H.O. moved an application (Exh.P.L.) before her for permission to prepare sample papers of finger prints of Aftab Masih. She allowed the application vide her order Exh.P.L./1. The sample papers of fingers prints of Aftab Masih vide Exhs.P.L./2 and P.L./3 were prepared in her presence. She also attested them. Similarly, Javed Iqbal, M.I.C. (P.W.12) received application Exh.P.M. from Muhammad Azam, S.H.O. which was allowed on 14-9-1992 vide his order Exh.P.M./1. He endorsed that the sample paper Exh.P.M./2 was prepared in his presence.

4. Dr. Muhammad Amjad Bhatti (P.W.1) conducted post-mortem examination on the dead body of Aamer Ahmad Aqeel and found the following injuries:-- (1) An incised wound 4.5 c.m. x 2 c.m. x muscle deep on the back and lower part of right forearm .5 c.m. above wrist joint and 17 c.m. below joint with cut muscle and tandons. (2) A stab ellipiticle wound 2.5 c.m. x 1.5 c.m. going deep on the front and upper part of left chest 5.5 c.m above nipple, 3.5 c.m. from midline. (3) An incised open wound 9 c.m. x 3 c.m. x muscle deep on the front and right side of neck 7 c.m. above suprasternal notch. 6 c.m. below chin. 5 c.m. from right ear and 7.5 c.m. below left ear. (4) An incised wound 2.5 c.m. x 1 c.m. x muscle deep on the front side neck 1 c.m. from midline. 6 c.m. above suprasternal notch and 1.5 c.m. below injury No.3. The injuries were ante-mortem. They were caused by a sharp-edged weapon. The death occurred due to shock and haemorrhage as a result of injuries Nos.2 and 3 which were sufficient to cause death in the ordinary course of nature. On the same day, at 1-00 p.m. the same doctor conducted post-mortem examination on the dead body of Aatir Ahmad. The following injuries were found on it:-- (1) An incised open wound 8 c.m. x 4.5 c.m. x muscle deep on the front and side of neck 6 c.m. below chin. 2.5 c.m. above suprasternal notch. 5 c.m. below right ear and 6 c.m. below left ear. (2) A bruise 7 c.m. x 3 c.m. on the right cheek and eye extending to upper eye-lid. 4.5 c.m. from right ear. The injuries were ante-mortem. Injury No.1 was caused by sharp-edged weapon while injury No.2 was inflicted with blunt weapon. In the opinion of the doctor, death occurred due to shock and haemorrhage as a result of injury No.1 which was sufficient to cause death in the ordinary course of nature. On the same day, the said doctor conducted the post-mortem examination upon the dead body of Mst. Sabiha Aqeel at 1-30 p.m. He found the following injuries:- (1) Multiple contusion marks in an area of 12 c.m. x 7 c.m. on the front of left shoulder. (2) Injury No.2 A hard brownish red ligature mark 34 c.m. x 0.5 c.m. around the neck sparing back of neck covered by hair, 6.5 c.m. above suprasternal notch 7.5 c.m. below chin, 8 c.m. below right ear and 6 c.m. below left ear showing double marks on the sides of neck. On dissection of neck, the under surface of ligature mark was bruised with sub-cutanuous tissue. The hyoid bone was intact." The injuries were ante-mortem. Injury No.1 was caused by a blunt weapon while injury No.2 was by ligature. The death occurred due to strangulation.

5. Dr. Saaqib Naeem, M.O. (P.W.2) medically examined the accused Ghulam Mustafa on 7-9-1992 at 12-55 p.m and observed the following injury on him:-- "Multiple stabed abrasions on area 8 c.m. x 1 c.m. back-upper left hand near the wrist joint." In the opinion of the doctor, the injury was caused by a blunt weapon within the duration of 24 to 48 hours.

6. The reports of Chemical Examiner vide Exh.PX and Exh.P.X/1-on the swabs, and blood were found to be positive. Similarly, report of Expert vide Exhs.P.Y. and P.Y./1 were positive.

7. Aqeel Ahmad Bari P.W.3 reiterated his earlier statement. Eye-witness account was furnished by Baba Fateh Muhammad, P.W.4, as already mentioned above.

8. Ghulam Mustafa, accused in his statement under section 342, Cr.P.C. denied the allegations and pleaded his innocence. His plea was that he was taken to the spot where blood was found and that his hands were smeared with that blood and then his fingerprints were got fixed on the wall in the house of Aqeel Ahmad Bari by the police. In the same breath, he stated that he did not know the reason as to why he was implicated. He conceded that he had been working as a plumber from time to time in the house of the complainant- for the last 5/6 years. He stated that he had no other link with the complainant except that he worked as plumber in his house. He also produced a cutting of daily "Pakistan", dated 8-9-1992 in his defence. Almost to the same effect is the statement made by Aftab Masih under section 342, Cr.P.C.

9. It is argued by the learned counsel that the prosecution has failed to prove its case against the appellants beyond reasonable doubt inasmuch as it was a blind murder and that Fateh Muhammad P.W.4 was later on introduced to become an eye-witness. They, therefore, submit that by extending the benefit of doubt, the appellants may be acquitted of the charges. Learned State counsel, however, argues that the prosecution has succeeded in proving its case against the accused by producing most reliable and trustworthy evidence. The circumstantial evidence, namely, reports of the finger prints expert was also produced to show that the appellants committed the murders of innocent persons. It is argued that Baba Fateh Muhammad is a natural witness inasmuch as he has continuously been working in the house of father of the complainant. According to the learned counsel, it is in the evidence that one Atteeq a servant of the complainant left his house and due to this reason Baba Fateh Muhammad used to work in the house of the complainant as well. He further contends that the result of the finger print bureau shows that the finger prints of the appellants matched with their finger prints having been found on the wall, Almirah and a piece of paper which vas lying in the house of the complainant.

10. We have heard the learned counsel for the parties at considerable length and have also carefully read the entire record with their assistance. To begin with, we do believe that Baba Fateh Muhammad was present in the house of the complainant at the time of occurrence. It is proved that the complainant had no domestic servant at the relevant time inasmuch as his own servant, Ateeq had already left his house 2/3 days before the occurrence. In such a situation, he had hired the services of Baba Fateh Muhammad who had been working continuously in the house of his father. The complainant deposed that he used to leave his house in the morning to attend his business in Anarkali, daily and would return home at 9-00 p.m. It is, therefore, natural that to look after his minor children and wife, some dependable domestic servant was needed. It is established that Baba Fateh Muhammad was a tried and true servant of the family. For this reason, he was working in the house of the complainant as well apart from serving his father, Ayub Bari. Baba Fateh Muhammad deposed that on 5-9-1992, the appellants came in the house and disclosed that they had been sent by the complainant in order to do some repair work in the bath rooms of his house. It is also proved that the accused had been coming and working in the house of the complainant even before the occurrence. They were, therefore, well-known to the family and the witnesses: This is why they were allowed to come in the house of Mst. Sabiha Aqeel and in confidence, she alongwith her children went out to bring medicine. After some time, she returned home while both the accused were working in the house. In these circumstances, Fateh Muhammad P.W. could also go to attend complainant's father in the next block. On return, he heard the shrieks from inside the house and rushed to the passage of the house and saw from a window that the appellant Aftab Masih was strangulating Mst. Sabiha Begum with a cable wire and similarly, Ghulam Mustafa appellant was killing the minor sons of the complainant with his Chhuri. The scene was so terrifying and shocking that the old man left the spot hurriedly and fell down unconscious in a nearby park. After registration of the case and recovery of Baba Fateh Muhammad, it was nothing but natural to record the supplementary statement of Aqeel Ahmad Bari. The Police Officer wisely did so. As a result of said statement, Ghulam Mustafa was arrested so soon namely on 6-9-1992. It is also proved that Aftab Masih ran away from the house after commission of crime. He was declared absconder by taking proceedings against him under section 87/88, Cr.P.C. Fateh Muhammad P.W. was further corroborated by the opinion of Finger Prints Expert which demonstrated that the finger prints impressions having been found on the wall, Almirah, door and a piece of paper in the house of the complainant matched with the sample finger prints of the appellants which were taken and prepared according to law. In our view, this circumstance is the most important piece of evidence which connects both the accused with the commission of murders of Mst. Sabiha Aqeel, Aamir Ahmad and Aatir Ahmad. The witnesses may tell a lie but the circumstances will not the appellants failed to give any plausible explanation with regard to the report of the Finger Prints Expert. Their plea that they were brought by the police at the place of occurrence and were coerced to smear their hands with the blood having been found at the place of occurrence appears to be afterthought and as such false. Accordingly, we are convinced to hold that the appellants while armed committed the gruesome murders of three innocent persons and were rightly convicted. In view of the enormity of the crime they do not deserve any clemency in the matter of sentence. Their death sentences are confirmed. There is no substance in the appeals and the same are dismissed. N.H.Q./138/SAC Appeals dismissed,