NOOR AHMAD Versus THE STATE
JUDGMENT.
JUSTICE RAJA AFRASIAB KHAN (MEMBER) .--- The appellant, Noor Ahmad (25) son of Nizam Din, caste Muslim Sheikh, resident of village Jethpur, Tehsil Depalpur, District Okara, was tried by the learned Judge, Special Court for Speedy Trials No.I, Lahore, under section 302, P.P.C. for the triple murder of Mst. Shamim Akhtar (16/17), Mst. Nasim Akhtar (14/15) and Muhammad Yousaf (22/23). On 28-4-1992, the learned trial Judge convicted and sentenced the appellant to death on three counts under section 302, P.P.C. The convict has challenged his conviction and sentence by filing Cr. A. No.32/SAC/L of 1992 before this Court which shall be decided through this judgment.
2. Shortly stated the facts are that Muhammad Saleem Akhtar (complainant) is a resident of village Jethpur: On 21-10-1991 Mahmood-ul- Hassan and Muhammad Ramzan, grandfather and uncle, respectively, of the complainant, came to his house to visit him and his family. On 22-10-1991 at about 6-30 a.m., the complainant came out in the street from his house in order to see off his aforesaid relatives. In the meantime, Mst. Hameedan Bibi, mother, Mst. Shamim Akhtar and Mst. Nasim Akhtar, sisters of the complainant, also reached there after easing themselves in the fields. Suddenly, the appellant armed with a .12 bore gun came there and shouted that he would take revenge from them because they had levelled false allegations against him that he cut indecent jokes with the girls. He fired at Mst. Nasim Akhtar. On receipt of the injury, she fell down. He fired another shot which hit Mst. Shamim Akhtar on her chest, abdomen and left arm. She also fell down. The appellant ran away with his weapon. The witnesses also ran after the appellant in order to apprehend him. After committing the aforesaid two murders, the appellant went to the house of Muhammad Yousaf who, was still sleeping in his house while placing a quilt over his body. However, his mouth and chest were not covered. The appellant fired at him by placing his gun on his body. On receipt of the injury, Muhammad Yousaf fell down from his cot. In the meantime, Muhammad Yar and Allah Ditta reached there and witnessed the whole occurrence. They also made an attempt to catch the appellant. However, he reloaded his gun and issued serious threats to them that he would not leave any body alive who dared to come near him. In the result, Muhammad Yousaf, Mst. Naseem Akhtar and Mst. Shamim Akhtar died on the spot.
The motive was that two days earlier, the appellant had cut indecent jokes with Mst. Naseem Akhtar, and Mst. Shamim Akhtar in the presence of Muhammad Yousaf. Muhammad Yousaf felt annoyed and condemned the uncalled for attitude of the appellant with the girls. The girls also made a complaint to Nizam Din, father of the appellant about the incident. The appellant was, thus, reprimanded and was also beaten by his father. On account of this background and grudge, the appellant committed the above offences. Dilawar Ali Khan, Lambardar and Asghar Ali were left behind to guard the dead bodies while the complainant himself went to the police station to give an information for registration of a case.
3. Muhammad Yameeh Inspector/S.H.O. (P.W.10) recorded the F.I.R. (Exh.P.K.) on the statement of Muhammad Saleem Akhtar complainant (P.W.5). He conducted the investigation of the case. He inspected the spot. The dead bodies of Mst. Nasim Akhtar and Mst. Shamim Akhtar were lying in the street of village Jethpur. Injury statements (not exhibited) and inquest reports (Exh.P.U. and Exh.P.V.) of the dead bodies of Mst. Nasim Akhtar and Mst. Shamim Akhtar were prepared by the investigator. The dead bodies were sent to mortuary for their post-mortem examination under the escort of Muhammad Aslam, F.C. (P.W.1). Blood-stained earth vide memos Exh.P.M. and Exh.P.N. and two crime-empties P.1 and P.2 vide memo. Exh.P.Q. were recovered and taken into possession. These articles were sealed into separate parcels. A rough site plan of the place of occurrence (Exh.P.X.) was prepared by the Investigating Officer. Thereafter the Police Officer went to. the house of Muhammad Yousaf, deceased. The dead body of Muhammad Yousaf was lying near a cot in the courtyard of his house. Injury statement Exh.P.Y. and inquest report Exh.P.Z. of the dead body were prepared by him. He sent the dead body to the mortuary for its post-mortem examination through Muhammad Aslam F.C. Blood-stained earth vide memo. Exh.P.R. and a crime-empty P.3 vide memo. Exh.P.S. were recovered and sealed into separate parcels. A rough site plan Exh.P.AA. was also prepared by the investigator. Statements of the witnesses under section 161, Cr.P.C. were recorded by him. He got prepared site plans Exh.P.D. Exh.P.D./1, Exh.P.E., Exh.P.E./l and Exh.P.L. from Muhammad Ishaq Draftsman (P.W.2). The appellant was arrested on 3-11-1991. He led to the recovery of gun P.4 which was taken into possession vide memo. Exh.P.T.
4.Reports Exh.P.BB. of the Chemical Examiner, Exh.P.CC. of the Serologist and Exh.P.DD. of the Forensic Science Laboratory were positive:
5. Dr. Tahir Islam Chaudhry, Medical Officer (P.W.3) conducted the post-mortem examination on the dead body of Muhammad Yousaf on 22-10-1991 at 2-15 p.m. and found the following injuries:--
(1) An extensive lacerated wound 11 x 10 c.m. on back and medial aspect of left elbow. Lower end of humerus and elbow joint were totally destroyed. A wad of cartridge was recovered from the wound. A pellet was also recovered from the wound.
(2) Six lacerated entry wounds each measuring 3/4 c.m. x 3/4 c.m. with blackening of skin in an area 21 x 7 c.m. on outer part of left chest from axilla to costal margins. There were corresponding holes in the vest. The wound was directed inward and downward.
Under injury No.2 5th and 7th ribs were fractured. A pellet was recovered from the lung substance. Another pellet was recovered from the kidney. Both the injuries we're ante-mortem. Those were caused by a fire-arm and were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was immediate while the duration between death and post-mortem examination was within 12 hours.
6. The said doctor on the same day at 3-15 p.m. conducted post-mortem examination on the dead body of Mst. Shamim Akhtar and noted the following injuries:--
(1) A lacerated fire-arm wound 1 c.m. x 1/2 c.m. with inverted margins and slight blackening on the skin margins on posterior and lateral aspect of left upper arm just above the elbow joint. A pellet was recovered from the wound.
(2) Fire-arm entry wound 3/4 c.m x 3/4 c.m. on outer upper part of left upper arm going upward.
(3) A fire-arm entry wound measuring 3/4 c.m. x 3/4 c.m. on right back of chest on lateral aspect at the level of lower end of scapula. It was going deep.
(4) A lacerated entry wound 1-1/2 c.m. x 1 c.m. on right side of neck 2-1/2 c.m. below the right ear lobe going deep inward and forward making exit hole on the right cheek in the middle of mandible. Mandible bone on the right side was fractured. (Fire-arm wound).
(5) A lacerated fire-arm wound 3/4 c.m. x 3/ 4 c.m. going deep with slight blackening of surrounding skin on the right back side in occipital region about 5 c.m. behind the right ear pinna.
A pellet was recovered from the deltoid muscle. The corresponding holes were found in the shirt of the deceased. All the injuries were ante-mortem and were caused by fire-arm. It was opined that injuries Nos.4 and 5 were sufficient to cause death in the ordinary course of nature. According to the doctor, death occurred immediately after the infliction of the injuries. The time between death and post-mortem examination was opined to be within 12 hours.
7. On the same day at 4-15 p.m. the afforsaid doctor conducted post-mortem examination on the dead body of Mst. Naseem Akhtar and observed the following injuries:--
(1) A lacerated fire-arm wound of exit 3/4 c.m. x 3/4 c.m. on left breast about 1 c.m. below the left nipple.
(2) A fire-arm exit wound about 3/4 x 3/4 c.m. on right chest 5 c.m. above the right nipple.
(3) A fire-arm exit wound measuring 1 c.m. x 3/4 c.m. about 4 c.m. medial to the right nipple.
(4) A fire-arm exit wound 3/4 c.m. x 3/4 c.m. 8 c.m. above the right nipple.
(5) A lacerated fire-arm entry wound 3/4 c.m. x 3/4 c.m. on outer part of left elbow going upward.
(6) A fire-arm lacerated exit wound 1 c.m. x 1 c.m. on 'medial and posterior aspect of left arm.
(7) A lacerated fire-arm entry wound on back of left chest 3/4 c.m. x c.m. on the back of chest upper part 4 c.m. from the mid-line.
(8) A fire-arm entry wound 3/4 c.m. x 3/4 c.m. on lower part of left scapula about 6-1/2 c.m. from the left mid-line.
(9) A fire-arm entry wound 3/4 c.m. is 3/4 c.m. on middle of right scapula.
(10) A fire-arm entry wound measuring 3/4 cm. x 3/4 c.m. on medial border of right scapula.
Under injuries Nos.9 and 10, the 5th and 6th ribs of right side of the body were fractured. All the injuries were ante-mortem and were caused by fire-arm. The injuries were sufficient collectively to cause death in the ordinary course of nature. The, death was immediate and the probable time between death and post-mortem was about 12 hours:
8. Eye-witness account was furnished by Muhammad Saleem Akhtar P.W.5, Mst. Hameeda Bibi P.W.6, Muhammad Ramzan P.W.7 and Allah Ditta P.W.8.
9. The appellant denied the allegations levlled against him in his statement under section 342, Cr.P.C. In an answer to question No.15, he deposed that Mst. Shamim Akhtar, had developed illicit relations with Muhammad Yousaf, deceased. However, the complainant had a suspicion that she had illicit liaison with him as well. On account of this background, the complainant party murdered Mst, Naseem Akhtar and Mst. Shamim Akhtar because of their bad character. Muhammad Yousaf was also done to death by the complainant party because of the same reason. In the circumstances, the appellant took the plea that he was falsely involved in the case. However, the appellant did not produce any defence evidence in support of his plea. He also did not make any statement on oath under section 340(2), Cr.P.C.
10. Mr. Nafeer A. Malik, learned counsel contends with vehemence that the prosecution did not succeed to prove its case against the appellant beyond reasonable doubt. He argues that the eye-witnesses are interested because they are closely related to the deceased. He maintains that the medical evidence wholly negated the ocular account. He has specifically pointed out the blackening around the injury No.1 of the deceased Mst. Shamim Akhtar and submits that the witnesses were not present at the time of occurrence.
Mr. S.M. Nazim learned State Counsel, submits that the prosecution witnesses are truthful and independent inasmuch as they had absolutely no .reasons to falsely implicate the appellant in the commission of the crime. According to him, Allah Ditta P.W.7 is undoubtedly a very important witness because he is closely related to the appellant. He argues that the witnesses are illiterate and that it would not damage, the case of the prosecution if there was some discrepancy in their evidence about the distance from which the appellant fired at the deceased.
11. We have heard the learned counsel at considerable length and with their assistance have also gone through the record. We do not find any substance in the contentions of the learned counsel for the appellant. To begin with, it may be observed that it was a day occurrence, having taken place in the street of village Jethpur. There was, therefore, no question of any mistaken identity of the culprit. This is a case of single accused and as such there can be no possibility of substitution of the appellant. The ocular account furnished by P.W.5 to P.W.8 does provide sufficient strength to the case of the prosecution. Saleem Akhtar P.W.5 deposed that on the day of occurrence, he was present alongwith Mahmood-ul-Hassan and Muhammad Ramzan P.Ws. in the street in front of his house. Mst. Hameedan Bibi, Mst. Naseem Akhtar and Mst. Shamim Akhtar were also present in the street. It was added that the appellant armed with a .12 bore gun was standing at his shop in the said street. He shouted that he would finish the girls for taking revenge of his insult. He fired which hit Mst. Nasim Akhtar on her neck, head and face. She fell down and died on the spot. He again fired at Mst. Shamim Akhtar on her chest, abdomen and left arm. She too fell down and died then and there. After finishing the two girls, the appellant ran towards the house of Muhammad Yousaf who was still sleeping on a cot in the courtyard of his house. The appellant fired which hit Muhammad Yousaf on his chest and other parts of the body. The evidence of Saleem Akhtar P.W.5 was materially corroborated by Mst. Hameedan Bibi and Muhammad Ramzan P.Ws. so far the first two murders of the girls were concerned. The objection of the learned counsel is that Saleem Akhtar complainant and Mst. Hameedan Bibi are real brother and mother, respectively, of Mst. Shamim Akhtar and Mst. Naseem Akhtar, deceased and Ramzan P.W: is their real maternal-uncle, while Allah Ditta P.W. was a real brother of Muhammad Yousaf deceased and as such they should not be believed to record conviction against the appellant. On account of this close relationship of the P.Ws. with the deceased, it is contended with vehemence by the learned counsel that the prosecution evidence was highly interested and needed corroboration which was definitely missing. There is absolutely no substance in the argument of learned counsel. We are persuaded to believe that the presence of all the witnesses at the spot was established beyond doubt in the given facts and circumstances of this case. Saleem Akhtar complainant deposed in his evidence that Mahmood-ul-Hassan and Muhammad Yar P.Ws. had come to visit them a day earlier. On the day of occurrence, they left the house for their village and were still present in the street and were talking with one another. It was nothing but natural that Saleem Akhtar P.W.5 and Mst. Hamidan Bibi P.W.6 would be there to see off their close relatives. It almost does happen everywhere and with every one to be out to see off guests. There was thus absolutely nothing unusual with the witnesses if they were present in the street in front of their house in the above background. The girls and their mother had also returned from the fields after easing themselves. It is common knowledge that the villagers do go out early in the morning for such purposes. Thus, the presence of Mst: Hamidan Bibi and her two daughters is established in the street where the occurrence took place. It was clearly stated in her evidence by Mst. Hamidan Bibi that they had just come back after answering the call of nature in the fields. An objection was taken by the learned counsel that the evidence of Allah Ditta P.W.8 should not be believed on the ground that the noises of the P.Ws. were not audible to him because he was inside his house at the time of occurrence. His argument was that the house of Allah Ditta P.W. was situated on the northern side of the village and that he could not be expected to be present early in the morning in the house of his brother Muhammad Yousaf deceased. He has drawn our attention to the site plan Exh.P.L. to show that the house of the deceased Muhammad Yousaf was situated almost in the southern end of the village. We find that the argument of the learned counsel is not supported by the evidence on record. Saleem Akhtar P.W.5 does depose in his evidence that Allah Ditta was present in the house of Muhammad Yousaf at the time of the occurrence. To the same effect is the evidence of the other prosecution witnesses. The site plan Exh.P.L. shows that Allah Ditta P.W.8 lives next to the house of Muhammad Saleem Akhtar P.W. He might have joined the chase being made by Muhammad Saleem Akhtar P.W. to catch the appellant. We do not doubt his presence at the spot because he lives very close to the place of occurrence. Allah Ditta P.W.8 is a star witness about the murder of Muhammad Yousaf because the defence failed to shake his evidence. He is also related to the appellant. His evidence is thus worthy of reliance. There is not a word having been brought on record by means of his lengthy cross-examination to show that there was some ill-will or enmity between the appellant and Allah Ditta P.W. This being so, we overrule the objection of the learned counsel about the testimony of Allah Ditta. The prosecution evidence inspires confidence, being disinterested and independent. Their deposition appears to be honest, straightforward and consistent. Another objection of the learned counsel was that the medical evidence negates the ocular account inasmuch as the distance between the place wherefrom the appellant fired at the deceased was more than 4 feet and as such if the prosecution evidence is believed then there could have been no blackening around the injuries of the deceased. Again, we are convinced to hold that this insignificant error occurred because of the rustic innocence of the witnesses. It could not at all be possible for the witnesses to have given the exact distance from where the appellant fired at his victims. It is true that site plan Exh.P.L. shows that Noor Ahmad appellant fired at Mst. Nasim Bibi and Mst. Shamim Bibi from a distance of 45 feet. In our view, the witnesses told the distance tentatively and approximately. It is always given as a guesswork by the witnesses. They can never be exact in arithmetical terms. In this behalf, a reference may usefully be made to the observation made by the Honourable Supreme Court in a case reported as Muhammad Rafiq alias Titai v. The State P L D 1974 SC 65, which reads as follows:--
"It is next submitted by the learned counsel, on the authority of Modi and Burrard, that charring of the entry wounds would show that the pistol was fired from a range of about 6" while the witnesses have fixed the distance between the appellant and the deceased at between 2-1/2 to 3 Daces or between 5 to 7-1/2 feet, thus showing that they did not in fact see the occurrence. We regret we cannot accept this argument for the reason that, in the first place, it is too much to expect that illiterate or semi-illiterate witnesses would be able to indicate the distance in question with scientific exactitude; ...
In the circumstances, therefore, we overrule the objection of the learned counsel as the above observation applies with full force to the facts and circumstances of this case. It may also be appreciated that the F.I.R. in the case was lodged with greatest possible promptitude although the police station was situated at a distance of nine kilometres from the place of occurrence. We also believe the evidence about motive that the appellant had cut indecent jokes with the deceased girls before the occurrence and Muhammad Yousaf deceased -had reprimanded him for his uncalled for behaviour with the unfortunate girls. Father of the appellant had also given him a thrashing when a complaint was made to him by mother of the girls about the unwarranted behaviour of the appellant. On the basis of ocular account furnished by Muhammad Saleem Akhtar, Mst. Hameedan Bibi, Muhammad Ramzan and Allah Ditta, P.Ws., we do conclude that it was Noor Ahmad, appellant, who committed these brutal murders. The appellant does not at all deserve any leniency 'because he massacred three innocent souls, one after the other. The murders, he committed in quick succession, were undoubtedly gruesome and sensational in nature.
12. Result of the above discussion is that there is no substance in the appeal which is hereby dismissed.
N.H.Q./59/SAC
Appeal dismissed.