MUHAMMAD IQBAL Versus STATE

KH. MUHAMMAD SHARIF, J. --- This judgment will dispose of Criminal Appeal No. 1233 of 1988 filed by Muhammad lqbal and Criminal Appeal No.328 of 1988 filed by Amanat Maseeh and Mst. Musarrat Jameela who were convicted and sentenced by Special Court No.9 for Speedy Trial, Gujranwala on 12-7-1988 for the murder of Muhammad Azam. They were sentenced as under:--

Muhammad lqbal appellant was sentenced

(1) Death under section 302/34, P.P.C.

(2) Fine of Rs.20,000 (Rupees. twenty thousand) in default of payment of fine further R.I. for 2 years; amount of fine if realized be paid to the legal heirs of Muhammad Azam deceased under section 544-A, Cr.P.C.

(3) R.I for 10 years under section 307/34, P.P.C

(4) R.I. for 1 year under section 353/34, P.P.C.

(5) R.I. for 10 years under sections 397 and 392, P.P.C. Fine of Rs.5,000 (five thousand) or in default R.I. for 1 year.

Amanat Maseeh and Mst. Musarrat Jameela Were sentenced:

Under section 302/34, P.P.C

Life imprisonment and fine of Rs.20,000 or in default two years' R. I. each.

Under section 307/34, P.P.C.

10 years' R.I. each

Under section 353, P.P.C.

One year's R.I. each.

Under section 397/392, P.P.C.

10 years' R.I. and a fine of Rs.5,000 (five thousand) or in default one year's R.I.

2. The occurrence in this case took place on 30-4-1988 at about 10-30/11 a.m. in the area of Panjan Shahana within the jurisdiction of Police Station Dinga, six miles from said police station. Matter was reported to the police by Sakhi Muhammad (P.W.2) through Exh.P.C. which was recorded at 11-45 a.m. at canal bank Manowal and the formal F.I.R. Exh.P.C./1 was recorded at 12-30 p. m. (noon).

3. Brief facts of the case are that on 30-4-1988 at about 10-30 a.m. Sakhi Muhammad P.W.2 alongwith his son Muhammad Akhtar P.W.3 was coming from village Lakhneywali and was going to his village Manowal on the canal bank on his motor-cycle which was being driven by his son. When they reached in the area of village Panjan Shahana a white-coloured car overtook them while passing by their side. They saw four persons in the car including one lady. While going at some distance ahead of the P. Ws. the car was stopped. The person sitting by the side of the driver at the front seat fired from his revolver at the temporal region of the driver. The witness pointed out towards Muhammad Iqbal accused present in Court as the person who fired upon the driver at that time. Then all the three accused dragged out the driver from the taxi car and threw him there on the canal bank. Sakhi Muhammad P.W. also identified Amanat Masih and Mst. Mussarat Jamila accused present in Court-room as the persons who threw away the dead body of Muhammad Azam deceased. All the three accused then drove away the car from there and P.W.2 and P.W.3 also followed them. When Sakhi Muhammad and his son reached in the area of village Manowal they found that the taxi car had been stopped by the police at the bridge and the accused persons present in Court had also been apprehended by the Inspector. Sakhi Muhammad and Muhammad Akhtar P.Ws. also told the Inspector that these accused persons had committed the murder of a taxi driver within their view and had thrown his dead body on the canal bank. The statement of Sakhi Muhammad Exh.P.C. was recorded by Fiyyaz Mahmood, Inspector P.W.9 and he read over the same to Sakhi Muhammad which was signed by him in token of its correctness.

4. On 30-4-1988 Fiyyaz Mahmood, Inspector S.H.O. Police Station Dinga P.W.9 was on patrolling duty alongwith other police officials and when reached at the canal bank in the area of village Manowal at about 11-00 a. in. he stopped the car coming towards that side and found three accused persons present in the Court, two male and one female in the said car. The Inspector got them down from the car for the purposes of check up. In the meantime Muhammad Iqbal accused fired at the police party, but every one was saved as it did not hit anybody. All the three accused were apprehended. Amanat Masih accused was sitting at the driver's seat at that time. This process was going on when in the meanwhile Sakhi Muhammad P.W.2 and Muhammad Akhtar P.W.3 arrived there and told the police party that the accused had committed the murder of Muhammad Azam and had thrown his dead body from the car at the canal bank. Fiyyaz, Mahmood, Inspector recorded the statement of Sakhi Muhammad Exh.P.C. and sent the same for the registration of the case to the police station through Muhammad Younis, Constable. Muhammad Sharif P.W. and Riasat Ali P.W.5 also reached there and in their presence revolver P.10 alongwith four live cartridges P.13/1-4 and two empty cartridges P.14/1-2 were taken into possession vide memo. Exh.P.I., from the personal search of Muhammad Iqbal accused, the revolver, live and empty cartridges were made into a sealed parcel. Exh.P.I./1 is the rough site plan of the place of recovery where the accused were apprehended. From the personal search of Mst. Musarrat Jamila accused a carbine P.9 and three live cartridges P.15/1-3 were also taken into possession vide memo. Exh.P.H. These articles were also made into a sealed parcel. The person of Amanat Masih accused was also searched by the Investigating Officer and revolver P.14 alongwith three live cartridges P.16/1-3 were made into a sealed parcel and taken into possession vide memo. Exh.P.G. white coloured car P.1 belonging to the deceased bearing No.565/FDF Toyota with registration book P.2 driving licence P.3, identity card P.4 and wrist watch P.5, a piece of cloth P.6 and a purse P.7 were taken into possession vide memo. Exh.P.F.

5. Fiyyaz Mahmood, Inspector P.W.9 then reached at the spot, where the dead body of Muhammad Azam was lying. He inspected the place of occurrence, prepared the inquest report Exh.P.B. and injury statement Exh.P.B./l. He entrusted the dead body to Muhammad Younas, Constable P.W.7 for post-mortem examination. He also collected the blood-stained earth from the spot and took the same into possession vide memo. Exh.P.D. which was made into a sealed parcel. Muhammad Qasim P.W.6 and Muhammad Akhtar P. W. came at the spot and identified the articles P.1 to P.7 as belonging to the deceased. The identification memo. Exh.P.J. was prepared in this respect. After post-mortem examination Muhammad Younas, Constable P.W.7 produced the last-worn clothes of the deceased Shalwar P.11, shirt P.12, which were taken into possession vide memo. Exh.P.K. The Inspector P.W.9 got prepared the site plans of the place of occurrence Exh. P. E. and Exh. P. E. / 1 from Muhammad Hussain, Sub-Engineer P. W.4 on 11-5-1988. The Inspector gave notes in red ink and signed the site plans Exh.P.E. and Exh.P.E./1. The Inspector also recorded the statements of the P.Ws. under section 161, Cr.P.C. completed the investigation and submitted the challan in the Court for trial.

6. Dr. Zafar Iqbal, Medical Officer, Tehsil Headquarter Hospital, Kharian on 30-4-1988 at about 4-00 p.m. conducted post-mortem examination on the dead body of Muhammad Azam and his observations are as follows:--

External Appearance

It was a dead body of young man well built, eyes and mouth were closed, face was extremely pale, rigor mortis and post-mortem staining were present, wearing Shalwar and Kameez, made of K.T. both blood-stained.

External injuries

(1) Fire-arm entry wound measuring 0.5 c.m. x 0.5 c.m. on the left temporal region, the edges were inverted and blackening was present. There was an exit wound 3 c.m. x 1 c.m. on the right parietal region and was behind right ear. The scalp was damaged, fracture of left temporal and right parietal bone were found fractured. The membrane and the brain matter were damaged. All other organs were found healthy.

Opinion

After the careful examination of the dead body both internally and externally he was of the opinion that death had occurred due to haemorrhage and shock due to fire-arm injury. Injury was ante-mortem and was sufficient to cause death in the ordinary course of nature. Time between injury and death was immediate and between death and post-mortem was about 6 hours. Exh.P.A. is correct carbon copy of post-mortem examination report which is in his hand and bears his signature. After the post-mortem examination the doctor handed over the police papers, carbon copy of the post-mortem examination report, the dead body and the last-worn clothes of the deceased. He also signed the inquest report Exh.P.B. and the application for the post-mortem examination.

7. The prosecution in order to prove its case produced 9 witnesses in all. There is Report of Chemical Examiner which is Exh.P.L. and that of Serologist Exh.P.M. (positive in nature) and then there is Report of Fire-Arm Expert which is Exh.P.N. and the same is also positive in nature. It may also be mentioned here that the sentence of Amanat Maseeh was suspended by this Court on 12-9-1991 and thereafter, he became fugitive from law. Appeal had been coming up for hearing but the same could not be disposed of due to his conduct. As far as Musarrat Jameela appellant is concerned, according to the report submitted by Deputy Superintendent Jail for Women, Multan, she is still undergoing the sentence and this fact is mentioned by the learned Honourable Judges of a Division Bench vide their interim order, dated 15-4-1998. Moreover, in the said order it is also mentioned that Mian Sher Alam, learned counsel for the appellant whose client Muhammad Iqbal is behind the bars since 1998 undertook to address the arguments in both the appeals, one filed by Muhammad Iqbal and the other filed by Amanat Maseeh and Musarrat Jameela, jointly.

8. Learned counsel for the appellants submits that it was a blind murder. He further submits that both the eye-witnesses produced by the prosecution are police officials, that the story narrated by Sakhi Muhammad and his son Muhammad Akhtar P.Ws. is unnatural and improbable for the reason that car was going on at a very high speed and it was very difficult for Sakhi Muhammad and Muhammad Akhtar, who were going on a motor-cycle, to identify the appellants. He further, submits that the presence of both these eye-witnesses Sakhi Muhammad and Muhammad Akhtar is not proved on the record for the reason that when they had seen the appellant armed with fire-arm, their natural conduct was to ran away from that place, according to him their conduct at the spot is unnatural. He further, submits that bath these eye-witnesses are not believable. He also submits that the appellant Muhammad Iqbal had enmity with Faiz Mehmood, Inspector, (P.W.9), the Investigating Officer in this case. Elaborating his arguments he submits that Muhammad Iqbal alongwith his father had appeared in an inquiry in favour of Muhammad Younas H.C., against whom a case under section 409, P.P.C. was registered by a D.S.P. and the same was inquired into by Fiaz Mehmood, Inspector, the Investigating Officer in the instant case. He also submits that recoveries in this case have been planted on the appellants and Riasat Ali witness of recovery is a proclaimed offender and the said fact has been admitted by Muhammad Akhtar (P.W.2). He also submits that Riasat (P.W.) was involved in many other criminal cases. Adds that no independent witness has been produced by the prosecution to prove the recoveries. Learned counsel for the appellants submits that there is conflict between ocular account and medical evidence, according to him there is scratching on the wound of the deceased so in his view, the fire was allegedly shot by the assailant on the deceased from a very close range. Lastly he submits that appellant Muhammad lqbal is in death cell for the last about l l years and now he has expectancy of life so his death sentence should be reduced to life imprisonment in case his appeal is not accepted.

9. On the other hand learned State Counsel submits that the eye-witnesses and the other police officials have got no enmity with the appellants, that they were apprehended by Fiaz Mehmood, Inspector when they were taking away the car of Muhammad Azam deceased after killing him and throwing his dead body. He further submits that eye-witnesses have got no enmity whatsoever against the appellants so there was no question of false implication in this case. He also submits that being an employee of police, this is no criteria to discard the statements of the eye-witnesses. He submits that appellants have committed a heinous offence and they are not entitled to any leniency.

10. We have heard the learned counsel for the parties and have also gone through the evidence recorded by the trial Court very minutely with the assistance of the learned counsel for the appellants. In the instant case the occurrence took place at 11-00 a. m., complaint Exh.P.C. was lodged at canal bank of Manowal at 11-45 a.m. by Sakhi Muhammad (P.W.2) before Fiaz Mehmood, Inspector (P.W.9) and the formal F.I.R. Exh.P.C./1 was recorded on the same day at 12-30 (noon). Appellants were although, not named in the F.I.R. because they were not known to the complainant and his son Muhammad Akhtar P.W. but soon after the occurrence all the appellants were apprehended by Fiaz Mehmood, Inspector (P.W.9) on the canal bank of Manowal. Recoveries of revolver and other articles belonging to the deceased were effected from them. Car bearing No.FDF-565 was also taken into possession by the Investigating Officer there and then. Both the eye-witnesses Sakhi Muhammad and Muhammad Akhtar had no enmity with the appellants. There was no question of identification parade in this case for the reason that appellants were apprehended just after the occurrence. Although lengthy cross-examination was made on both the P.Ws. but nothing against the prosecution has come on record. It may also be mentioned here that Sakhi Muhammad P.W. was an employee of police. He was on L.P.R. His son Muhammad Akhtar is also an employee of police. Both of them were going on the motor-cycle on the day of occurrence at the time of occurrence when they saw Muhammad Iqbal appellant killing the deceased with fire-arm and thereafter, both Amanat Maseeh and Musarrat Jameela threw the dead body of deceased Muhammad Azam from the car which was later on taken into possession by the Investigating Officer from the said spot. Both the eye-witnesses are natural witnesses, they had no axe to grind against them. As far as medical evidence is concerned, the report of post-mortem examination has already been mentioned in the earlier paragraphs of this judgment which shows that there was an injury with fire-arm on the left side of temporal region of Muhammad Azam (deceased) and there was a blackening on his wound which clarifies that the fire was shot from a very close range. The injury on the deceased was on the vital part of his body which proved fatal and the doctor has stated that it was sufficient to cause death of the deceased. As far as recoveries are concerned in this regard Muhammad Riasat P.W. has appeared as P.W.5. He has got no enmity with the appellants. No question was put to him that he was a proclaimed offender, during the cross-examination. He has admitted that only one case under section 307, P.P.C. was registered against him and his brother. His statement is corroborated with the statement of Fiaz Mehmood, Inspector. In our view ocular account is corroborated by medical evidence and the recoveries of weapons from all the appellants. There is another important factor in this case i.e. Report of Fire-arm Expert, according to the Report of the Fire-arm Expert, which is Exh.P.N. on the record, the revolver) recovered from Muhammad Iqbal appellant matched with the two crime empties which were also taken into possession from him at the time of his arrest. This also strengthen the prosecution case. In our view prosecution has proved its case against all the appellants beyond any shadow of doubt. As far as, question of sentence is concerned, no leniency can be shown to Muhammad Iqbal appellant because he had killed an innocent person namely Muhammad Azam in order to commit a dacoity. There was no enmity between Muhammad Iqbal appellant and Muhammad Azam deceased. There is no mitigating circumstance in his favour. All the appellants have committed the abovesaid heinous offence in prosecution of their common intention, so their appeals are dismissed. Murder reference is replied in affirmative and death sentence of Muhammad Iqbal appellant is confirmed.

11. It may be noted here that the delay in the disposal of these appeals took place due to the non-cooperation of Amanat Maseeh appellant and to some extent his learned counsel who had filed their al. Amanat Maseeh was released on bail in 1991 and thereafter, he became fugitive from law. Till today he did not surrender himself before the Court. Police authorities are directed to arrest him and to send him behind the bars to serve out his remaining sentence.

12. As far as Musarrat Jameela appellant is concerned, according to the interim order passed by our learned brothers on 15-4-1998, she is serving out her sentence as per report submitted by Deputy Superintendent Jail for women, Multan, as her sentence was not suspended. She was also not granted benefit of section 382-B, Cr.P.C. In the interest of justice, we grant her benefit of section 382-B, Cr.P.C. and also order that her all sentences should run concurrently. Sentence of fine of Rs.20,000 (twenty thousand) under section 302/34, P.P.C. awarded to her is reduced to Rs.5,000 (five thousand), in default six months' S.I. Sentence of fine to her under section 397/392, P.P.C. is also reduced to Rs.2,000 (two thousand) in default six months' S.I. with these observations and modification all the abovesaid appeals are disposed of.

H.B.T./M-1029/L Appeal dismissed.