1993 P Cr (PLP)

6. After the registration of the case, Inspector/S.H.O. Muhammad Younas Butt (not produced at the trial on account of his having gone abroad) took up its investigation. He accompanied by S.I. Munawar Hussain (P.W.19) went to the place of occurrence and after completing on the spot formalities, including collection of four empties, sent the dead body of Muhammad Siddique to the mortuary for post-mortem examination. He was still present on the spot when S.I. Shah Nawaz, after arresting Muhammad Azim appellant from the nearby maize field, brought him there. He produced purse P.10 containing cash amount of Rs.242 P.9 and identity card of Muhammad Sharif complainant P.11, which were seized by the S.H.O. vide recovery memo. (Exh.P.J.) attested by Muhammad Sharif complainant and Muhammad Siddique P.W. Manawar Hussain S.I. under the direction of the S.H.O. prepared injury statement of Muhammad Azim appellant. Later on 12-9-1991 this appellant, while in police custody, got recovered from a bush near the place of occurrence revolver P.14 alongwith five live cartridges which were seized vide recovery memo. (Exh.P.M.). On 14-9-1991 A.S.I. Abdul Rashid and A.S.I. Muhammad Masood P.Ws. produced before S.I. Manawar Hussain (P.W.19) Rafique alias Pheeki and Khurshid appellants alongwith two pistols and cartridges allegedly found in their possession. The same were seized by him, vide recovery memo. (Exh.P.D.). He formally arrested them and sent them to the jail for identification parade after covering up their faces. Later, on 16-9-1991 the S.H.O. moved an application for the identification parade of Rafique alias Pheeki and Khurshid appellants and on 23-9-1991 Malik Altaf Hussain, Magistrate (P.W.1), supervised the identification parade in District Jail, Sahiwal. During the parade, Muhammad Sharif complainant, Muhammad Siddique and Muhammad Hanif P.Ws. correctly identified Rafiqud alias Pheeki and Khurshid appellants. Later, on 5-10-1991 these two appellants led to the recovery of stolen motor-bike P.13 of Muhammad Sharif complainant alongwith its registration book from an uninhabited quarter of 7 Marlas Scheme in the area of Chak No.38/2-R and the same were seized, vide recovery memo. (Exh.P.K.). The arms and ammunition so seized from the appellants was deposited in Police Malkhana wherefrom the same were sent to the Office of Chemical Examiner and to the Forensic Science Laboratory at Lahore. The report of Forensic Science Laboratory (Exh.P.3) reveals that out of four empties recovered from the spot, two had been fired from the pistol got recovered by Rafique alias Pheeki appellant and one empty from the pistol got recovered by Khurshid appellant. No opinion was formulated with regard to the 4th empty recovered from the spot. On the completion of the investigation, all the three appellants were sent up to the Court of Session wherefrom their case was transferred to the Special Court for Speedy Trial No.II, Lahore.

7. On the commencement of trial, the appellants were charged for various offences mentioned in the opening paragraph of this judgment and on their pleading not guilty, the prosecution led evidence against them by producing as many as 19 witnesses. To be a little more precise, Malik Altaf Hussain, Magistrate 1st Class, Okara appearing as (P.W.1) deposed that on 23-9-1991 at 1-15 p.m. he supervised the identification parade in District Jail, Sahiwal. According to him, the three appellants were mixed up with 23 inmates of the jail and during the identification parade Rafique alias Pheeki and Khurshid appellants were correctly identified by Muhammad Sharif, Muhammad Siddique and Muhammad Hanif P.Ws. After giving details of the parade, he proved the proceedings (Exh.PA./3) and his certificate (Exh.PA./4) appended thereto.

8. Dr. Mirza Nasrullah Baig, Medical Officer, D.H.Q. Hospital, Okara (P.W.2) testified that on 8-9-1991 at 9-00 p.m. he had medically examined Mst. Karam Bibi P.W. (not produced) on the request of the police and found a lacerated wound 3 c.m. x 1 c.m. x muscle deep on inner and middle ring finger of right hand besides complaint of pain of lower trunk. According to him, the injuries were simple, caused by a blunt weapon within the duration of five hours. He proved medico-legal report (Exh.P.C.).

9. The next witness was Dr. Syed Tahir Bilal, Medical Officer D.H.Q. Hospital, Okara (P.W.3). He deposed that on 9-9-1991 at 2-30 p.m. the police had brought Muhammad Azim appellant and on his medical examination he had found a lacerated wound 2 c.m. x 0.5 c.m. x skin deep on the middle of head, 9 c.m. above the bridge of nose, and a swelling 5 c.m. x 3 c.m. on the outer part of left ankle. In his opinion, the injuries were simple, caused by a blunt weapon within the duration of 24 hours. He proved the medico-legal report (Exh.P.D.).

10. Constable Muhammad Afzal (P.W.4) had escorted the dead body of Manzoor Hussain to the mortuary and got its post-mortem examination carried out Constable Muhammad Ashiq (P.W.5) had taken one parcel to the office of Chemical Examiner and another to the office of Forensic Science Laboratory, Lahore intact. He deposed accordingly. F.C. Muhammad Tufail (P.W.6) had on 19-11-1991 carried two sealed parcels to the Forensic Science Laboratory Lahore and delivered them intact. He testified accordingly. A.S.I. Muhammad Asghar (P.W.7) had kept two parcels of pistols in safe custody at Police Malkhana before handing them over to F.C. Muhammad Tufail for delivery to the relevant offices. Muhammad Saleem Patwari (P.W.8) had prepared the site plan. (Exh.P.F.) and its duplicate (Exh.P.F./1). He proved these documents.

11. Muhammad Sharif complainant (P.W.9) and Muhammad Siddique (P.W.10) gave the eye-witness account of occurrence. Their testimony finds reflection in the above narration of the prosecution case and the same may be subjected to detail appraisal in due course, where necessary.

12. Barkat Ali (P.W.11) had identified the dead body of his son Manzoor Hussain at the time of post-mortem examination. A.S.I. Abdul Haq (P.W.12) had kept certain parcels pertaining to this case in safe custody in Police Malkhana before handing them over to the constables for their transmission to the relevant offices at Lahore. He deposed accordingly.

13. Dr. Saeed Ahmad Medical Officer D.H.Q. Hospital, Okara (P.W.13) deposed that on 9-9-1991 at 11-15 a.m. he had conducted post-mortem examination on the dead body of Manzoor Hussain, aged about 25 years and found the following injuries:-- (1) Multiple lacerated wounds (8 in number) in an area 11 c.m. x 7 c.m. each measuring 3/4 c.m. x 1/2 c.m. deep going on the outer back and middle part of right upper arm with fracture of the right humerus Margins were inverted and blackened. (2) A lacerated wound 1/2 c.m. x 1/2 c.m. x going deep with everted margins on the inner and middle part of the right upper arm. (3) Multiple lacerated wounds in an area 12 c.m. x 7 c.m. x deep going each measuring 3/4 c.m. x 1/2 c.m. x deep going on the front, outer and middle part of the right chest.

14. On dissection he found a pellet on the right side of nipple blow the skin besides two orifices on the 4th and 5th right inter-space. Right lung had three orifices with blackened margins, blood clots were present in the chest cavity. Another pellet was found from the right pleural cavity. Right lobe of liver was found punctured. Stomach stood ruptured and abdominal cavity was full of blood. Spleen stood lacerated and two pellets were found from the right side of abdominal cavity. Two pellets were found from the right upper arm. In his opinion, death occurred due to the shock and haemorrhage on account of injuries Nos.1, 2 and 3 which were sufficient in the ordinary course of nature to cause death. These injuries were anti-mortem and were caused by fire-arm. He proved post-mortem examination (Exh.P.L.) and the diagrams of injuries (Exh.P.L./1) and (Exh.P.L./2).

15. S.I. Shah Nawaz (P.W.14) deposed that on 8-9-1991 he accompanied the S.H.O. to the spot and searched for the hiding accused in the Charri field where a number of persons had collected with their tractors. According to him, he found a person hiding himself in the field who, on his apprehension, disclosed his name as Muhammad Azim and he produced him before the S.H.O. He stated that on 12-9-1991 Muhammad Azim, while in police custody, led to the recovery of a .32 bore revolver from near Lower Bari Doab Canal which was seized alongwith five live cartridges, vide memo. (Exh.P.9). A.S.I. Aftab Ahmad (P.W.15) got Muhammad Azim appellant medically examined. A.S.I: Abdul Rashid (P.W.16) testified that on 14-9-1991 at 5 a.m. when he alongwith A.S.I. Masood, besides some constables, was at patrol he saw two persons coming on motor-bike No.OKA-5109 and on their signal instead of stopping there they fled away in different directions after abondening the vehicle. According to him, after a hot chase he arrested Rafique alias Pheeki and also recovered from his person .12 bore pistol and 5 live cartridges. Meanwhile S.I. Mirza Manawar Hussain reached the place of occurrence and he produced the appellant as also the pistol and ammunition before him. A.S.I. Muhammad Masood (P.W.17) deposed that on 14-9-1991 when he alongwith A.S.I. Abdul Rashid P.W. was present on patrol near Pull Barsati they challenged two persons coming on a motor-bike and instead of stopping there, they ran away and after a hot chase he apprehended one of them who disclosed his name as Khurshid. According to him, he recovered from his person a .12 bore pistol alongwith seven live cartridges which he seized and later produced him alongwith the arms and ammunition before S.I. Mirza Manawar. A.S.I. Jafar Hussain (P.W.18) stated that he was entrusted with the summons of Inspector/S.H.O. Muhammad Younas Butt for service and came to know that he had gone to Kambodia on an official visit for a period of 1-1/2 years. He proved his report (Exh.P.Q.). The last witness was S.I. Manawar Hussain who at the relevant time was Additional S.H.O. The part played by him as companion of Inspector Muhammad Younas Butt has already been outlined.

16. The learned Prosecutor gave up Mst. Karam Bibi and Mst. Zabata P.Ws. having been won over and Muhammad Hanif P.W. as unnecessary. He tendered in evidence the report of Chemical Examiner. (Exh.P.T.) and report of Serologist (Exh.P.U.) and that of Forensic Science Laboratory (Exh.P.V.)

17. The appellants in their respective statements recorded under section 342, Cr.P.C. denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication, professed innocence. They produced no defence. They also declined to record their statements on oath.

18. On the conclusion of the trial the learned trial Judge, by the judgment now under challenge, convicted and sentenced the appellants in the manner aforesaid and aggrieved by it they have come up in appeal to this Court.

19. The learned counsel for the appellants contended that Muhammad Azim appellant was allegedly arrested from the maize field near the spot on the day of occurrence i.e. on 8th of September, 1991 but the police showed the recovery of revolver P.14 alongwith five live cartridges on 12th of September, 1991 and these recoveries were planted on him in order to strengthen the prosecution case. The contention of the learned counsel does not appear to be without substance. According to the prosecution evidence, Muhammad Azim appellant had, soon after the occurrence, run away into the maize field to conceal himself and when the villagers had gathered and surrounded him, he had been firing at them profusely and was ultimately overpowered by them and the police which had also meanwhile reached there. In these circumstance the natural sequence of events could possibly be that he had been apprehended from the maize field either alongwith the pistol or revolver,, or before surrendering he had thrown away the arm and ammunition in the maize field, which was of sufficient dimension, and he surrendred empty-handed. If he had adopted the latter course, the police could ask him to lead them to the place, where he had thrown the arm and most probably this course must have been adopted. So the recovery of revolver/pistol, if at all it was effected, was made on the day of occurrence and it was subsequently shown by the police to show its performance. But this fact by itself did not adversely affect the prosecution case because we believe as true that Muhammad Azim appellant had, as a companion of his co-accused, participated in the commission of highway robbery and in that process to have jointly committed the murder of Manzoor Hussain, a rescuer, and when he could not run away with them on the snatched away motor-cycle, he concealed himself in the nearby maize field wherefrom he was apprehended by the villagers. His medical examination conducted on 9-9-1991 at 2-30 p.m. in D.H.Q. Hospital, Okara, revealed that a few hours before he had sustained the injuries. This fact he also admitted in his statement under section 342, Cr.P.C. but attributed his injuries to the beating given by the police. He belonged to a distant place and his presence near the place of occurrence, which stood amply proved by medical and ocular evidence, went a long way to support the prosecution case, especially when the eye-witnesses had no earthly reason to falsely depose against him.

20. With regard to the role of Muhammad Rafique alias Pheeki and Khurshid appellants, it was argued by their counsel that Muhammad Sharif complainant (P.W.9) was not a reliable witness because in the F.I.R. he had stated that one accused had fired a shot hitting Manzoor Hussain (deceased) on his right upper arm and right chest, but during the trial he tried to implicate two accused, Muhammad Rafique alias Pheeki and Khurshid appellants, and when confronted with this situation, he admitted the contents of F.I.R. as correct and referred to his supplementary statement, which was an afterthought in order to synchronise his statement with the medical evidence. With regard to this witness, it was also urged that he allegedly came to know about the names and particulars of Muhammad Rafique alias Pheeki and Khurshid appellants about 27 days after the occurrence despite the fact that meanwhile he had participated in the identification parade. In the opinion of the learned counsel, he purposely suppressed this fact and being an unreliable witness, it was unsafe to base the conviction of the appellants on his testimony. He contended that only one shot was fired by one assailant and it hit the upper arm and the chest of the deceased but at the trial an improvement was made by both the eye-witnesses who falsely testified that both the appellants had fired one shot each at the deceased. He also criticised the testimony of Muhammad Siddique (P.W.10) and contended that he was a tutored witness who stood exposed on the factum of the recovery and identification of the purse (P.10) and identity card (P.11) of Muhammad Sharif P.W. Lastly, it was canvassed that both the above-said witness had not witnessed the recovery of the stolen motor-bike (P.13) at the instance of Muhammad Rafique alias Pheeki and Khurshid appellants but even if they happened to witness it, it was legally untenable because it was a joint recovery and could not be used against them, more so when no person from the locality was associated with the recovery proceedings.

21. We do not find any substance in the above contentions. Muhammad Sharif complainant (P.W.9) and his mother were the victims of the crime- robbery and murder in which an innocent rescuer had lost his life. Neither Muhammad Sharif complainant nor Muhammad Siddique P.W. had any prior connection with the appellants nor any ill will or animosity against them. So they were independent and impartial witnesses by all standards. With these basic attributes, they were not expected to depose falsely against the appellants on a capital charge, merely at the instance of the police to establish their service performance. There was some variation between the statement of Muhammad Sharif complainant as incorporated in the F.I.R. and the one recorded by him at the trial about the number of shots fired by the two appellants but he plausibly explained it by referring to his supplementary statement recorded by the police on this point. Being the victim of a terrifying crime like robbery, coupled with murder, one can well imagine the perplexed state of mind at the time of recording his statement as F.I.R. and we give no importance to this variation especially when there can be no doubt about his presence at the time of occurrence. Similarly his testimony cannot be discredited for the reason that he suppressed the fact of his knowledge about the names and particulars of Muhammad Rafique alias Pheeki and Khurshid which he allegedly came to know after 27 days of the occurrence. His statement on this fact could be right or wrong but even if he suppressed this fact for some reason, he cannot be labelled as a false witness. His village was situated at a sufficient distance from the police station and he had no liaison with the police except that he was complainant in the case. After the registration of the case, he was called to the police station once for the purpose of identification parade about 15 days after the occurrence, and then on the day of recovery of his stolen motor-bike. During the identification parade he was supposed to identify the accused by faces and not by names and if he deposed that he did not know the names of the two appellants prior to the day he was called to the police station for the recovery of motor-bike, there was nothing unusual in it.

22. As regards the joint recovery of the motor-bike, it was not permissible under the law and could not be taken into consideration.

23. Finally, an effort was made by the learned counsel to impeach the validity of the identification parade on the ground that the appellants were shown to the witnesses before arranging it. Excepting the bald statements of the appellants themselves recorded under section 342, Cr.P.C., there is no other evidence on the record to suggest an inference in this respect and their own statements cannot be given weight. Majority of the persons indulging in crimes are now aware that they can raise such like objections before the Magistrate conducting identification parades and can go scot free. Such like objections have no evidentiary value unless substantiated by positive evidence) of reliable character which is lacking in this case.

24. For various reasons stated above, we find no substance in the appeals and the same are dismissed. N.H.Q./86/SAC Appeals dismissed.