MUHAMMAD ASIF Versus State A.H. Masud , Bashir Abbas Khan
SARDAR MUHAMMAD ASLAM, J.--- This judgment shall dispose of Criminal Appeal No.357-J of 2003 and Murder Reference No.29-T of 2003 as both arise out of the judgment, dated 25-9-2002 rendered by the learned Special Judge, Anti-Terrorism Court, Sargodha whereby he convicted the appellant Muhammad Asif under section 364/34, P.P.C. and sentenced to life imprisonment with fine of Rs.50,000 in default whereof to further undergo R.I. for three years. Also convicted under section 392/34, P.P.C. and sentenced to 7 years R.I. with fine of Rs.10,000 in default whereof to further undergo R.I. for one year. Also convicted under section 302/34, P.P.C. and sentenced to death with compensation of Rs.50,000 to be paid to the legal heirs of the deceased as required under section 544-A, Cr.P.C. The sentences passed under sections 364/34, P.P.C. and 392/34, P.P.C. shall run concurrently. Benefit of section 382-B, Cr.P.C. was also extended to the appellant accused.
2. The co-accused of the appellant namely Muhammad Ramzan, Zulfiqar and Sohail Nazar were tried separately and were convicted by the learned Special Judge, Anti-Terrorism Court, Sargodha. Their appeal was dismissed and murder reference replied in affirmative by a learned Division Bench of this Court vide judgment, dated 12-9-2001 and their petition for leave to appeal (Criminal Petition No.668-L of 2001) was refused by the Honourable Supreme Court of Pakistan vide order, dated 22-11-2001.
3. Briefly the prosecution case as contained in the F.I.R. is that, Noor Muhammad complainant (P. W.10) lodged an F.I.R. Exh.PL on 21-9-1999 at 10-00 p.m. at the Police Station, Cantt Sargodha, his brother Liaqat Ali was Medical Officer in D.H.Q., Hospital, Sargodha and had also a private clinic at Chak No.86/NB and used to run it daily after his duty hours. On 21-1-1999 Dr. Liaqat Ali was in his clinic and Zahoor Ahmad the son of the complainant, was serving as Dispenser with him when complainant and one Afzal Shah residents of Chak No.48/NB came to clinic to see the doctor. At about 6-15 p.m. a young man of middle stature and strong built entered the clinic and asked the doctor Liaqat Ali to accompany him for attending a patient in serious condition. The doctor came out of the clinic, complainant Zahoor Ahmad P. W.10 and Afzal 'Shah also came out with him. The doctor boarded his car No.548/SGG which was white colour corolla model 1986. Two other unknown young men were also standing outside the clinic, the doctor occupied driving seat and other three persons also boarded the car. The doctor said to the P.Ws. to wait for him and he would 'return after examining the patient and drove away the car but when he did not turn up, they got worried and contacted the doctor on his mobile telephone but could not establish contact; their anxiety aggravated; they sought information about the doctor from friends and relatives but could not get any clue of the doctor, therefore complainant lodged F.I.R. Exh.PL that Dr. Liaqat Ali had been abducted by some unknown accused persons for confining him secretly and he could identify them on confrontation.
4. After recording the statement Exh.PL of Noor Muhammad, P.W.19 Shah Nawaz, Sub-Inspector proceeded to the place of occurrence i.e. to the clinic of Dr. Liaqat Ali where he recorded the statements of P.Ws. Zahoor Ahmad, Muhammad Afzal Shah and supplementary statement of the complainant Noor Ahmad, drew rough site plan of the place of occurrence, after spot inspection. He also recorded the statements of P.Ws. Ghazanfar Ali, Muhammad Nasir and on their pointation drew the visual site plan Exh.PJ where according to the said P.Ws. one of the accused had stopped the car of the deceased and had boarded in at bus stop of Chak No.86/NB. On 22-1-1999 the Investigating Officer received information that a dead body was lying along the Rajbah in the area of Chak No.41/SB. He reached and found the dead body lying there which was identified by P.Ws. Ehsan-ul-Haq and Wajid Ali as that of Liaqat Ali, deceased. He prepared injury statement Exh.PB, inquest report Exh.PC and dispatched the same to the mortuary for autopsy under the escort of Muhammad Akram constable No.821, prepared the rough site plan of recovery of dead body Exh. P. U., collected blood stained earth from the place of presence of dead body, sealed that into parcel vide Memo. Exh.PR and added the offence under sections 302/392, P.P.C. He, on the same day, recorded the statements of the P.Ws. Zulfiqar Ali, Muhammad Akram Constable, who produced the last worn clothes of the deceased before him. He also recorded the statements of Constable Muhammad Akram, Ehsan-ul-Haq and Wajid Ali P.Ws. He also received information through P.W.20 Tahir Farooq Sub-Inspector of ' Police Station, City Jalalpur, Jattan that he had taken into possession car No.548/SGG, parked in the police station. He went there on 29-1-1999 and brought that car back to the Police Station Cantt. Sargodha. He recorded the statements P.Ws. Tahir Farooq Muhammad Ayub constable and Shamraiz Ahmad. He got prepared site plan Exh.PF and Exh.PR/1 of the place of murder/recovery of dead body of Dr. Liaqat Ali in scale over which he gave red ink notes on 2-2-1999 and also recorded statement of Abdul Rehman Revenue Patwari in this regard. He also received information from P.W. Zulfiqar Ali through telephonic message in the morning of 8-2-1999 about the presence of accused Zulfiqar Ali, Muhammad Ramzan and Sohail Nazar in Istiqlalabad Colony Sargodha, so he arrested them and made recoveries from them on their personal search, obtained their physical remand and got them transferred to judicial lock-up, arranged their identification parade, in District Jail, Sargodha.
5. P.W.18 Ijaz Hussain Sub-Inspector investigated this case, who on 12-3-2002 on information from S.H.O. about the confinement of appellant-accused Asif in District Jail Mandi Baha-ud-Din and having been deputed to get him transferred from jail M.B.Din to District jail Sargodha, accomplished the legal formalities and arrested him in this case on 16-3-2002. On 18-3-2002 the Investigating Officer applied to the "learned District and Sessions Judge, Sargodha for identification parade, who deputed Mr. Gias Mahmood Cheema, learned Magistrate Sargodha for the said application. The learned judicial Magistrate on 27-3-2002 conducted the identification parade inside the District Jail, Sargodha. The Investigating Officer recorded the supplementary statement of the witnesses-concerned regarding the identification parade. He interrogated the appellant accused who made disclosure on 14-4-2002 and got recovered wrist watch P.1 and .30 pistol P.2 from his rented house located in Cheema Colony in the area of Chak No.78/NB, which was witnessed by P.Ws. Noor Muhammad, Muhammad Idrees, and Abdul Waheed.
6. The appellant was charged to which he pleaded not guilty and claimed trial. The prosecution has produced as many as 20 witnesses. After the closure of prosecution evidence statement of appellant accused under section 342, Cr.P.C. was recorded. He did not opt to make statement as required under section 340(2), Cr.P.C.
7. The learned counsel for the appellant submits that undeniably appellant was not previously known to the P.Ws. and it was not possible for the P.Ws. to identify the appellant after such a long time while they had seen only glimpse of the appellant; that the appellant was arrested on 16-3-2002 and was sent to the judicial lock-up on 18-3-2002; in the circumstances the possibility that the appellant was shown to the P.Ws. at the police station was not free of doubts; that at the time of identification parade the appellant disclosed to the Magistrate that, he was shown at the police station to the P.Ws.; that confirmatory evidence in the shape of recovery of pistol of deceased and wrist watch at the instance of the appellant was also doubtful as the same was effected after more than three and half years and secondly, neither the wrist watch nor the pistol was mentioned in the F.I.R. The learned counsel has argued that no independent witness was associated during the recovery proceedings and, thus, the recovery was not proved. The learned counsel has argued that the appellant could not be convicted merely on the basis of absconsion, as. absconsion was only corroboratory piece of evidence. However, in this case the absconsion of the appellant could not be proved to the judicial satisfaction. The learned counsel has lastly submitted that the appellant was roped in this case merely on suspicion.
8. The learned counsel appearing on behalf of the complainant and the State have submitted that neither Noor Ahmad nor Zahoor Ahmad had any motive to implicate the appellant in this case; that the appellant was seen by the P.Ws. at the time of abduction of the doctor; that both the P.Ws. have successfully identified the appellant during identification parade; that the statements of P. W.10 and P. W.11 were corroborated by the statement of P.W.12 and P.W.15 as well as documentary evidence in the shape of Exh.PD, which reveals that he and the rest' of the accused had stayed together in Almahran Hotel; that P.W.2, the owner of the hotel had no reason to fabricate any document against the appellant; that the recovery of pistol of the deceased doctor and wrist watch was effected at the instance of the appellant; that the recovery witnesses had no previous enmity or ill will towards him; that the statements of the P.Ws. were also corroborated by the factum of absconsion of the appellant which was duly proved through oral as well as documentary evidence before the learned trial Court; that the appellant had acted in a very callous manner and no mitigating circumstance existed in his favour. Both the learned counsel have supported the judgment passed by the learned trial Court.
9. Heard. Record perused.
10. The prosecution relied on the evidence furnished by Noor Ahmad and Zahoor Ahmad P. W.10 and P. W.11, who had seen the appellant with two of his co-accused at the clinic of the deceased. He went in his car along with the accused to attend a patient at their request. P.W.12 was present at patrol pump getting fuel in his motorcycle when he saw the appellant and his co-accused in the car of the deceased parked near him for filling of fuel. Ghazanfar Ali, P.W.15 knew the deceased Dr. Liaqat Ali, previously. He along with Muhammad Nasir was on his way to his village from Sargodha and got down from the bus at railway crossing near their village. He saw Zulfiqar, co-accused of the appellant standing near the Khokha of meat seller located near bus stand and railway crossing. Dr. Liaqat Ali, in the meantime, driving his car crossed the said railway crossing. The car was stopped on the signal of Zulfiqar Ali, co-accused. Zulfiqar Ali boarded the car in the rear seat, on opening the door of the rear seat, he saw Ramzan and the appellant also occupying the rear seat of the car. Sohail Nasir co-accused was sitting on the front seat. An identification parade was conducted on 27-3-2002. P.W.15 identified the appellant. Besides him P.W.10 Noor Ahmad, P.W.11 Zahoor Ahmad and P.W.12 Zulfiqar Ali identified the accused appellant correctly in the identification parade conducted by Mr. Gias Mahmood Cheema, learned Judicial Magistrate. The presence of the appellant in the premises of clinic of the deceased along with his co-accused, later on seen by P.W.12 in the car of the deceased and P.W.15 Ghazanfar Ali at the railway-crossing on the fateful day when deceased driving his car while the appellant was on the rear seat. The deceased was not seen alive, thereafter. His dead body was found near the bank of canal on the next day of his abduction. On the day of occurrence the appellant stayed in Almehran Hotel near bus stand Gujrat. Zafar Iqbal, Proprietor of hotel produced the photocopy of an entry made in his register Exh. PD which was compared with the original register and found correct. The National Identity Card of Muhammad Ramzan, co-accused was written. The last column of Exh.PD shows the presence of the appellant and his co: accused. This entry has not been challenged by the appellant, which establish his presence in the hotel at Gujrat.
11. The appellant absconded after the occurrence. He was arrested from the District Jail, M.B. Din on 16-3-2002. He was brought to the police station and sent to the judicial lock-up on 17-3-2002. His absconsion stands proved from his warrant of arrest issued by the learned trial Court. P.W.8 Zafar Iqbal, A.S.-I. who was entrusted with warrants Exh.PG made his report Exh. PG/1 mentioning that the appellant is not traceable. His proclamation was issued by the learned trial Court vide Exh.PH. It was again entrusted to Zafar Iqbal, A.S-I. He affixed one copy of the proclamation at the appellant's house and the other on the notice board of premises of District Court. The proclamation and the report are exhibited as Exh.PH and Exh.PH/1, No plausible explanation has been given by the appellant for his absence from the Court. This circumstance lends support to the prosecution case.
12. The medical evidence furnished corroboration. The abduction took place at 6-30 p.m. on the day of occurrence. His post-mortem was conducted at 2-00 p.m. The time given by the doctor P.W.1 between death and post-mortem examination is 24 hours. The post-mortem report evidences 16 injuries on the person of the deceased out of which 13 injuries were caused by sharp-edged weapon.
13. The recovery of pistol, wrist watch after a long period of time does not inspire confidence. It is not expected of the appellant to keep these items for such long time to present to the police to be used as evidence against him. Recovery witnesses are not resident of the place. No respectable of the locality was associated. We do find substance is the argument of the learned defence counsel that the recovery was not effected from the appellant.
14. We have not been able to understand as to why the complainant would involve the appellant when admittedly, there was no previous enmity or ill will between them.
15. For what has been discussed above, we are of the firm view that the prosecution has established its case against the appellant beyond reasonable doubt. We dismiss his appeal while maintaining his conviction and sentence. Death sentence is maintained. Murder reference is answered in affirmative.
H.B.T./M-314/L ????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.