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PLJ
TAHIR MEHMOOD v. STATE
94 FSC
(Shahzado Shaikh, J.)
. PLJ 2012 FSC 94
[Appellate J~risdiction]
Present:
SHAHZADO SHAIKH & RIZWAN ALI DODANI,
JJ.
TAHIR MEHMOOD and another--Appellants .
versus
STATE--Respondent
Crl. Appeal No. 232/L of 2005 and Jail Crl. A. No. 118/1 of 2007,
decided 15.9.2011.
'Pakistan Penal Code, 1860 (XLV of 1860)-----85. 302(b) & 392--Conviction and sentence--Challenge to--1t was an
un-seen occurrence--No claim for having last seen--Insuch cases
appreciation of evidence places more responsibility on the shoulders
of everyone concerned to apply deeper and specific diagnosis methods
rather than ordinary, analysis--Considering probable time of
occurrence, appearance of complainant, brother of decea.sed was,
neither improbable nor unnatural, keeping in view, present-day
means of communication, even if he would not have been scheduled
to visit her sister, as stated by him'. Therefore, question mark put on
such probability was not sustainable and even otherwise it cannot
lend any support to the appellant in the prosecution case itself
against him--Sjmilarly, once the occurrence is claimed by counsel for
the appellant as unseen, and as admittedly it is unseen, his
observation about non-production of witness from the neighbour, is
also nO.t sustainable--In a murder case where no witness usually
comes forward, blood-bound witnesses like daughters and brothers
and those closely related, in fact heir like husband, in this case, could
all be legally acceptable witnesses, in spite of all their interest in
relationship and heirship--For each pointation of and recovery of
weapons of offence, blood stained clothes, cash and gold ornaments,
duly identified, from each appellant, there are private witnesses also-As regards the question of law about Section 162 Cr.P.C, as pointed
out by the Counsel for appellant that if there was any wrong
treatment of the application which was submitted by complainant
before the police for registration of the case, the same was on the part
of the police and not on the part of complainant as the complainant,
being only middle-pass, had acted in good faith just to report his
version of the occurrence in order to get justice and he stated in his
cross-examination that before moving complaint for r~gistration of
FIR, he had no knowledge that any FIR ofthe occurrence had already
been registered--It was for the police to record the complaint or the
2012
TAHIRMEHMOODV. STATE
FSC 95
(Shahzado Shaikh, J.J
, information provided by the complainant to the Police vide EX.PH as
second F1R--Complainant cannot be made to suffer for the technical
lapses on the part of the Poli~e/lnvestigati6n-- There is an inherent
bigger danger involved in rejecting outright the subsequent
complaint or information reported to the Police inform of complaint
and prima facie making it inadmissible as if non-existent to be
processed in evidence, even for the limited purpose and in the
prescribed manner, provided u/S. 162 Cr.P.C.--Such outright
rejection or total inadmissibility may favour the criminal tactics of
offenders who can afford faster means to get their false of the
honourable apex Court (PLD 2005 SC 297) a,safeguard has been set
in the mechanism for recording such subsequent complaint or report
as second FIR, in order to ensure judicious dispensation in such
cases--Even from plain reading of above provisions of .Section 162
Cr.P.C. shows that the statement recorded under this section'is not
non-existent--It is very much extant and useable, but for the specified
purpose and under specific procedure, as laid down--When it is "used
in the re-examination of such witness" even "for the purpose only of
explaining any matter referred to in his cross-examination," it is
found to be very much useful in bringing the 'truth of the matter for
purpose of dispensation of justice--From the facts and reasons that
the occurrence in the instant case has taken place in the manner as
suggested by the prosecution--Prosecution has successfully proved its
case by producing confirmatory evidence in this regard. In this case
there is no room for doubt. Even otherwise Counsel for the appellants
have not succeeded to point out any illegality in the impugned
judgment--Appeals dismissed.
[Pp. 113, 114, 115, 116 & 117J A, B, C, D, E, F,'G, H& I
Sheijlh Tariq Mehmood & Sheikh Asghar Ali, Advocates for
Appellants (in Crl. Appeal No. 232-L of 2005).
Miss Raisa Sarwat, Advocate for Appellant (in Jail Cr!. Appeal
No. 118/L of 2007).
Mr. Seerat Hussain Naqui, Advocate for Complainant.
Ch. Muhammad Ishaq, D.P.C. for State.
Date of hearing: 15.9.2011.
JUDGMENT
Shahzado Shaikh, J.--Appellant Tahir Mehmood through
Criminal Appeal No. 232/Lj2G05 and appellantSajid Ali.alias Sajjad Ali
Munna through Jail Criminal Appeal No. 118/1/2007' have . challenged
the judgment dated 31.03.2005 delivered by the learned Additional
Sessions Judge, Jhang, whereby they were convicted' and sentenced as
under:--
TAHIR MEHMOOD V. STATE
(Shahzado Shaikh, J.)
96FSC
PLJ
Tahir Mehmood appellant:
Conviction
(i)
Sentence
under Section 302(b) of the
Pakistan Penal Code
life imprisonment with
direction to pay Rs. 50,000/- as
compensation under Section
544-A of the Code of Criminal
Procedure to the legal heirs of
Mst. Ferhat Bibi deceased or in
default thereof to further
undergo six months simple
imprisonment.
(ii)
under Section 392 ofthe
Pakistan Penal Code
four years rigorous
imprisonment with fine of
Rs. 5,000/- orin default thereof
to further undergo two months
simple imprisonment ..
. Sand Ali alias Saiiad Ali Munna appellant:
Conviction
Sentence
(i) , under Section 302(b) of the
Pakistan Penal Code
life imprisonment with
direction to pay Rs. 50,000/- as
compensation under Section
544-A of the Code of Criminal
Procedure to the legal heirs of
Mst. Hajrrui Bibi'deceased or in
default thereof to further
undergo six months simple
imprisonment.
. (ii) under Section 392 of the
Pakistan Penal Code
four years rigorous
imprisonment with fine of
Rs. 5,000/- or in default thereof
to further undergo two months
simple imprisonment.
Both the sentences were ordered to run concurrently with
benefit of Section 382-B of the Code of Criminal Procedure. However the
learned trial Court acquitted accused Muhammad Akram by giving him
benefit of doubt. Both the above-mentioned criminal appeals are being
2012
TAHIR MEHMOOD v. STATE
FSC 97
(Shahzado Shaikh, J.)
disposed of by this singlll judgmlmt as they
arise out of one and the same
judgment and crime report.
It may be pointed out here that Ghulam Muhammad PW.9, the
complainant, had filed Criminal Appeal No. 171jLj2005 against
acquittal of Muhammad Akram accused as well as Criminal Revision
No. 59/L/2005 for enhancement of sentences awarded to the appellants
which were dismissed on 15.09.2008 for lack of prosecution.
2. The prosecution case in brief is that complainant Ghulam
Muhammad PW.9 submitted complaint EX.PH before the Station House
Officer, Police Station Kotwali, District Jhang, wherein i~ was stated
that about 18" years ago his sister Mst. Ferhat Bibi was married with
Afsar Ali Khan and they were living happily. The step brothers and step
mother of Afsar Ali Khan used to tease Mst. Ferhat Bibi and she often
made complaints about Tahir Mehmood to the complainant who (Tahir
Mehmood) used to extort money from her by extending threats. On
16.04.2003 the complainant alongwith Yar Muhammad went to Ahmad
Hassan at Model Town Burewala from where they made programme to
go to Faisalabad. However on the insistence of the complainant they (all
the three) proceeded to Jhang as the complainant wanted to see his
sister, on the ';Nay. At about 5.00 p.m. they reached the house of
complainant's sister situated in Mohallah SultanWala, Jhang, where
many people had gathered outside and inside the house. They came to
know that Mst. Ferhat Bibi and her maid Mst. Hajran Bibi were
murdered at noon time and their dead bodies were taken to the hospital.
The complainant suspected Tahir Mehmood for this occurrence. They
went to hospital where Tahir Mehmood and Muhammad Akram met
them. On, query Tahir Mehmood while weeping, state~ that Afsar Ali
went to his duty early in the morning while his daughters went to
, ". ,School. He and his friend Sajjad Ali needed money and on finding Mst.
,::'Fethat Bibi alone, he .alongwith Sajjad Ali, armed with daggers, en!ered
, the 'house while his brother Akram, remained on guard outsid~. H~
demanded money from Mst. Ferhat Bibi and on her refusal lw :Hlatdled
her gold ornaments. She'made resistance and caught him upon which he
gave repeated dagger blows to her. In the meanwhile Mst. Hajran, maid,
who was present in the kitchen, raised alarm. Sajjad Ali alias Munna
caught Mst. Hajran and injured her by giving dagger blows. Both the
ladies died at the spot. Sajjad Ali put 'dupatta' around the neck of Mst.
Ferhat Bibi and tied her with the cot. They went out of the hOllse and
bolted the door. Then Tahir Mehlllood, without informing ,'\bar A!i
about the occurrence, laid oral information to tIle police which was
recorded by Muhammad Sharif Sub Inspector PW.13 as Ex.PJ on
16.04.2003 wherein it was stated that at about 7.30 a.m. his brother
Afsar Ali went to Shorkot on his duty while his daughters went to school
and he went to Kuchery on his job. Mst. Ferhat Bibi and maid M.~t.
98FSC
TAHIRMEHMOODv. STATE·
PLJ
, (Shahzado Shaikh, J.J .
. Hajran were alone in the house. At about 2.00 p.m. he returned home
from Kuchery and found that door o(the house of Msar Ali was opened
and many people gathered th(lre. He 'entered the house of AfsarAli and
saw that Mst. Ferhat and Mst. Hajran Bibi were lying dead. and house
hold articles were scattered in the. house. He fUrther stated in the
• complaint that some unknown persons had murdered Mst. Ferhat Bibi
and Mst. Hajran Bibi by giving .them dagger blows. This complaint
Ex.PJ was registered as FIR No. 164/03 Ex.PJ/l.
3. Investigation ensued as a consequence of registration of crime
report. Muhammad Sharif Sub-Inspeotor PW.13 undertook the
investigation. He recorded complaint Ex.PJ on the, statement of Tahir
Mehmood accused at People Chowk where he wa~ present on patrol duty
and forwarded the same to Police Station through. Bashir Ahmad
constable for registration of the case. He reached at the spot, inspected
the place of occurrence, prepared. ihjury statement Ex,PF and i1,1quest
report EX.PD of Mst. FerhatBibi as well as injury statementEx.PF/l
and inquest report EX.PG of Mst. Hajran. He sent the dead bodies to
DHQ Hospital, Jhang for post-mortem examination through Kh.adim
Hussain constable. Ghulam Muhammad complainant submitted an·
application EX.PH before .him. He recorded statements of Ahmad
Hassan and Yar Muhammad under Section 161 of the Code of Criminal
Procedure. He inspected the place of occurrence on the pointation of
Ghulam Muhammad, Yar ·Muhammad. and Ahmad . Hassan and
prepared site plan Ex.PT. He collected the blood stained earth from both
the places of dead bodies, prepared two different sealed parcels, took the'
same into possession through memo. EX.PL and ,Ex.PN and recorded
statements of Ahmad Hassan and Yar Muhammad P\ys i~ this regard.
After post-mortem examination of the dead bodies. KhadimHussain
constable handed over to him post-mortem reports of both the deceased
alongwith last worn cloth...of Mst.· Ferhat Bibi shirt P.13,shalwarP.14,
dopatta P.15 and last worn'. clothes of Mst. HajranBibi shirt)? 16, white
dopatta P. 17, blood stained shalwar P. 18 and tW()sealedvials which he
took into possession through memo. Ex.PK. He recorded statement of
Khadim Hussain constable . •On 17.04.2003 he recorded supplementary
statement of Ghulam Muhammad complainant and also recorded
statements of PWs under Section H31 of the Code of Criminal Procedure.
On 18.04.2003 he recorded statements of Mst. Saddaf Mser and Sana
Afsar daughter of Mst .. Ferhat Bibi deceased. He got prepared scaled site
plan of the place of occurrence. Ex.PA and Ex.PA/l through Sofi
Muhammad AsifMunawar, Draftsman. He arrested aCQused Sajid Ali on .
22.04.2003while Tahir Mehmood and Muhammad Akram accused were
arrested on 23.04.2003 .. On 26.04.2003 during investigation Sajid Ali
accused got recovered dagger P .. 19 from a petti lying in a room of his
house and Rs. 1500/- from underneath the petti. He also got recovered
gold ornaments khanti P.I, koka P.2, pair orear rings P.3/1-2. onetikka
TAHIR MEHMOOD v. STATE
2012
. FSC 99
(Shahzado Shaikh, J.)
P.4 which were taken into possession through recovery memo. EX.PN
and statements of Ahmad Ha:s:san and Yar' Muhammad PWs were
recorded in this respect. Accused Tahir Mehmood got recovered dagger
P.20 from beneath the trunks, which was taken into possession through
recovery memo. Ex.PR. He also got recovered four gold bangles P.5/1-4,
'two golden rings P.6/1-2, locket P.7, one pair of ear rings P.8/1-2 and
cash amount of Rs. 1500/- which were taken into possession through
recovery memo. Ex.PQ. He also got recovered clothes from beneath the
stairs shirt P.26, blood stained shalwar P.27, which were taken into
possession through recovery memo. Ex.PS. Sajid Ali accused got
recovered ornaments and cash amount which were taken into possession
through recovery memo. Ex.PO. He also got recovered his blood stained
clothes from the roof of his house i.e. shalwar P.22, string P.21, shirt
P.20 which were taken into possession through recovery memo. Ex.PP.
On 28.04.2003 Abdul Hafeez and Afsar Ali identified the ornaments P.1
to P.8 and their statements were recorded under Section 161 of the Code
of Criminal Procedure. After completion of the investigation the Station
House Officer submitted report under Section 173 of the Code of
Criminal Procedure before the Court on 20.05.2003 requiring the
accused to face trial.
4. The learned trial Court framed charges against the accused
on 09.10.2003 firstly under Section 395 of the Pakistan Penal Code,
secondly under Section 302/34' for committing murder of Mst. Ferhat
Bibi, thirdly under Section 302/34 for committing murder of Mst.
Hajran Bibi and fourthly under Section 17 of the Offences against
Property (Enforcement of Hudood) Ordinance, 1979. The accused did
not plead guilty and claimed trial.
5. The prosecution produced thirteen witnesses in order to
prove its case. The gist of the deposition of the witnesses is as follows:-(i)
PW.1 Muhammad Munawar Asif Draftsman stated that On
19.04.2003 he alongwith the Investigating Officer and PWs
inspected the spot, took rough notes on the pointation of
the PWs and prepared site plan in the scale of 1" equal to 20
feet. After completion site plan EX.PA and Ex.PA/1 he
handed over the same to the Investigating Officer on
26.04.2003.
(ii)
PW.2 Haq Nawaz constable had deposited two sealed
parcels of blood stained daggers and two sealed parcels of
blood stained shalwar and shirt in the 'office of the
Chemical Examiner, Lahore on 05.05.2003 which were
h'anded over to him by Muhammad Akram Moharrar on
04.05.2003.
100 FSC
PLJ
TAHIRMEHMOODv. STATE
(Shahzado Shaikh, J.)
(iii) PW.3 Lady Dr. Misbah. ul Qamarhad conducted post-
mortem examination onthedead'body of Mst. Ferhat,Bibi
on 16.04.2003. Rer observations are as, follows:
"It Was dead body ofa healthy lady aged about 40 years,
lying on post-mortem table, withey~.l;lnd mouthclo!led.
Claded in three clothes printing Qameez, Ferozi shalwar'
and Dopatta. (clothes were blood stained). Rigor mortis
present, post-mortem staining present.
1.
An incised wound V shape 5 em"" 5 em x cavity deep
present on upper part ofleft side of abdomen 40 eM.
to the left of mid line.
2.
An incised wound 8 em x 5 em x caVity deep present on
left side of abdomen, 3. em t()o the left of umbliegut is
coming through this wound.
3.
An incised wound 2 em x 1 em x muscle deep present
in the centre of abdomen 2 em above Injury No.2.
4.
An incised wound 6 em x 3 em x caVity deep present on
left side of abdomen 11 em on the left of Injury No.2,
gut is coming o~t through this wound.
5.
An incised wound 4 em x 3 em x caVity deep present on
right side of abdomen.
6.
An incised wound 5 em x 1 em x muscle deep present
on front· of medial side of lower part of right forearm.
Corresponding cuts were present on the clothes.
Scalp. Skull and vertebrae.
Scalp and skull intact and healthy. VertebT#::n9t op.enftd>
Membranes and brain: Intact and
opened.
ltealtW~d~~iriafhordnot
. '0.
.
Thorax: Thorax walls and all the Viscras" were intact and
healthy. Heart intact and healthy and all the chambers were
empty.
Abdomen:
Walls, injuries already mentioned. P~~:'~In·;'.llijttted.and),'
abdominal cavity was full of blood. Stomach,i'njured, contains
about 3/4 Ounces of semi digested food. Small intestines injured
at many places, containing digested juices and gases. Large
intestines injured at many places containing gases and fecal
matter. Liver injured. Organs of generation internal and
external, intact and healthy non-gravid uterus. Three vaginal
2012
TAHIR MEHMOOD
v. STATE
FSC 101
(Shahzado Shaikh, J.)
swabs were taken, sealed and sent to the Office of Chemical
Examiner, Lahore for semen de~ction and Serological test. All
other abdominal vis eras were intact and healthy.
Opinion:
Death in this case is caused by Injuries, 1, 2, 4 and 5. Leading to
severe shock and haemorrhage due to injury to liver, stomach,
small intestines and large intestine, which is sufficient to cause
death in the ordinary course of nature. All the injuries were
ante-mortem in nature and caused l)y sharp edged weapon.
Probable time that elapsed between injuries and death was
immediate and between death and P.M. Examination was
within 12 hours.
After the P.M. Examination I handed over to the police, the well
stitched dead body, carbon copy of P.M.Report, Police papers, a
sealed vial, a sealed envelope alongwith last worn clothes of the
deceased. Ex:PB is the correct carbon copy of P.M.Report, which
is in my hand and signed by me. I also endorse injury statement
Ex:PC and inquest report Ex:PD and sketch of injuries Ex:PB/l,
and Ex:PBj2 which are also in my hand and signed by me."
The Lady Doctor also conducted P.M.Examination of the dead body of
Mst. Hajran and observed as follows:
.
"It was the dead body of a lady aged about 45/46 years, lying on
P.M.table with eyes and mouth closed. Claded in brown printed
Qameez, Ferozi shalwar, Dopatta. Clothes were blood stained.
Rigor mortis was present and P.M. staining was present. The
following injuries were noted on her person:-1.
An incised wound 12cm x 2cm x muscle deep present on
front of left side of neck.
2.
An incised wound 5cm x lcm x muscle deep present on
front oflower part of neck, 2cm below Injury No. 1.
3.
An incised wound Gem x 2m x cavity deep (between 5th and
6th ribs) present on left breast 2cm above left nipple.
4.
An incised wound 4 cm x 2 cm x muscle deep present on
right breast 2 cm above right nipple.
5.
An incised wound 4cm x lcm x muscle deep present on
right side of upper part of abdomen.
6.
An incised wound 6cm x 3cm x muscle deep present on
upper part of right side of abdomen 4cm from the Injury
No.5.
102 FSC
TAHIRMEHMOODv. STATE
(Shahzado Shaikh, J.J
PLJ
7.
An incised wound 5 cm x 2 cm x cavity deep present. on
upper part ofleft o~,abdomen 02 cm to the left of mid line.
8.
An incised wound.3cm x 1 cm x cavity deep present on left
. side of abdomen, 6cm from the Injury No .7.
9.
An incised wound. 3cm x·1 cm x muscle deep present on
lower abdomen.
10. An incised wound 4cm x 2 cm X muscle deep present on
upper part ofleft arm and extending tht;ough and through
the medial side of upper arm;
11. An incised wound 3cmx 1 cm x muscle deep present on left
forearm upper part.
12. An incised wound 6cm x 2 cm x muscle deep present on
upper part of front of right forearm.
'13. An incised wound' 4cm x' 2 cm x muscle deep· present on
front of upper ofleft thigh.
14. Anincised wound 5cm x 2cro x muscle deep present on left
side upper and inner part.
15. An incised wound 9cm x 2cm x bone exposed present on
front ofleft leg.
16. An incised wound 3cm x 1em x bone exposed present in the
middle of back, (corresponding cuts were present on t.he
clothes).
.
,
.
Scalp, skull and Vertebra)
Scalp and skull intact a.nd healthy. Vertebrae not opened.
Membranes and brain: intact and healthy. Spinal cord not
opened.
Thorax:
Injuries to walls and ribs already mentioned. Pleaura injured,
chest cavity contained blood. Left lung injured. Heart intact and
healthy and both chambers empty. Other thorax: viscaras were
intact and healthy.
Abdomen;
Injuries to abdominal walls were already mentioned. Skin of
front of the abdomen burnt. (injured and peritonial cavity was
full of blood). Stomach injured and contained about 2 Ounces of
about semi digested food. Small intestine~ injured at many·
places containing digested juices and gases. Large intestines
injured at many places containing gases and feacal matters.
2012
TAHIR MEHMOOD V. STATE
FSC 103
(Shahzado Shaikh, J.)
Liver injured, spleen injured, both kidneys, bladder, pancreas
and diaphragm V\ ere intact and healthy. Organs of generation
external and internal were intact and healthy. Non-gravid
uterus. Three vaginal swabs were taken and handed over to
. Police for seno.ing to Chemical Examiner, Punjab, Lahore, for
semen detection and Serologist test.
Opinion:
Death in this case was caused by Injury No.3, 7 and 8 leading to
severe shock and haemorrhage due to injury to left lung, liver,
stomach, spleen, small intestines and large intestines. Which is
sufficient to cause death in an ordinary course of nature. All the
injuries were ante-mortem in nature and ·caused by sharp edged
weapon. Probable time that elapsed between injuries and death
was immediate and between death and P.M.Examination was
within 12 hours. After the P.M. Examination a well stitched
dead body, carbon copy of P.M. Report, police papers, a sealed
vial, a sealed envelope alongwith last worn clothes of the
deceased were handed over to police. Ex.PE is the correct carbon
copy.of my P.M.Report, which is in my hand and signed by me.
Sketch of injuries Ex:PE/l and Ex.PE/2 are also in my hand
and signed by me. I also endorsed injury statement EX.PF and
inquest report Ex.PG."
(iv)
PW.4 Ejaz ul Hassan constable had delivered two sealed
parcels containing bloo.d stained earth of Mst. Ferhat Bibi
and Mst. Hajran Bibi, two sealed vials and two sealed
envelops in the office of the Chemical Examiner, Lahore
on 23.04.2003 which were handed over to him by
Muhammad Akram Moharrer on 22.04.2003.
(v)
PW.5 Muhammad Jamil stated that Ghulam Muhammad
complainant and Ahmad Hassan. rang him up from
Burewala and told him that they had got to Faisalabad via
Jhang and they would take lunch with him at Jhang. He
took his wife to bazaar for purchasing house.hold articles
and after leaving his wife in the bazaar he went to the
house of Afsar Ali Khan in Mohallah Sultan Wala where
Muhammad Akram accused was present in front of the
house of Afsar Ali Khan. He inquired from Muhammad
Akram accused about Ghulam Muhammad and Ahmad
Hassan who told that they had come there.
(vi)
PW;6 Afsar Ali, husband of Mst. Ferhat Bibi deceased,
stated that on the day of occurrence he was on his duty at
Shorkot. Riaz Gujjar ASI PS Shorkot City informed him
about the murder of his wife and maid servant Mst.
104 FSC
TAHIRMEHMOODV. STATE
PLJ
(Shahzado Shaikh, J.)
Hajran Bibi. He came to his house and found many people
gathered there. He got recorded his statement before the
police at his house wherein it was stated that murder of
his wife and maid servant was committed by his step
brothers Tahir Mehmood and Akram accused with the
consultation of their mother. Sajid Ali accused, friend of
Tahir Mahmood and Akram accused, was also involved in
the murder of his wife and maid servant. He, On checking
his house, found gold ornaments i.e. four bangles" tWo
rings, one tikka, koka. two set of ear rings, one locket, one
kenthi and cash Rs. 4200/- missing. The witness had
identified the dead body of Mst. FerhatBibi at the time of
post-mortem examination. He identified the stolen
property before the police on 28.04.2003.
(vii)
PW.7 Sana Afsar daughter of Mst. Ferhat deceased sated
that she alongwith her sister returned home from school
at abut 1.30 p.m. The outer door of her house was chained
from outside. After opening the door she alongwith her
sister went inside the house' and found that her l)J.other
Mst. Ferhat Bibi and maid Mst.Hajran Bibi were lying
murdered. The chains of the boxes were broken. On their
alarm the women of the vicinity gathered; The witnesses
further stated that three days prior to the occurrence her
step-uncle Tahir Mehmood and Muhammad Akram at the
instance of their mother Mst. Ferozan had taken oath on
Holy Quran to finish the family of Mst. Ferhat BibL Their
residential house was in the name of Mst. Ferhat Bibi and
the accused wanted to get transferred the said house in
their names forcibly, and for'this pUrpose they had -beaten
her mother. In absence of her father both the accused
used to snatch money from her mother after beating her.
Accused Muhammad Akram, Tahir Mehmood and Sajid
Ali after looting the ornaments and the currency notes
murdered her mother and maidservanJ:Mst. Hajran Bibi.
(viii) PW.8 Zafar Iqbal had identified the dead body of Mst.
Hajran Bibi in the mortuary before the WMO at the time
of her post-mortem examination.'
'
(ix)
Ghulam Muhammad complainant appeared as PW.9 and
endorsed the contents of his complaint Ex.PH.
(x)
PW.I0 Muhammad Akram Moharrar had formally
drafted FIR Ex.PJ/l on receipt of complaint Ex.PJ. On
16.04.2003 he received a sealed parcel containing blood
stained earth as well as tWo sealed parcels containing
2012
TAHIRMEHMOOD v. STATE
FSC 105
(Shakzado·Shaikh, J.)
vaginal swabs alongwith two envelopes for onward
transmission to the office of the Chemical Examiner,
Lahore. On 22.04.2003 he handed over the above said four
sealed· parcels alongwith envelopes to Ejaz ul Hassan
constable for deposit in the office of Chemical Examiner.
On 26.04.2003 the InVestigating Officer also handed over
to him the parcel of blood stained clothes of the accused
Sajid Ali and other blood stained parcel of clothes of Tahir
Mehmood accused for safe custody in the Malkhana~ On
04.05.2003 he handed over the above said sealed parcels to
Haq Nawaz constable for depositing in the office of the
Chemical Examiner, Lahore.
(xi) . PW.ll Khadim Hussain constable stated that on
16.04.2003 _the Investigating Officer had handed over to
him dead bodies of Mst. Ferhat Bibi and Mst. Hajran Bibi
alongwith relevant police papers for autopsy. He produced
both the dead bodies alongwith police papers before the
WMO for P.M. Examination. After the autopsy the lady
doctor handed over to him blood stained last worn clothes
of Mst. Ferhat Bibi i.e. shirt P.13, shalwar P. 14, dopatta
P. 15 and a sealed vial. She also handed over to him the
last worn blood stained clothes of Mst. Hajran Bibi i.e.
shirt P. 16, dopatta P. 17 and shalwar P. 18 alongwith a
sealed vial. He produced the above said articles before the
Investigating Officer who took the same into possession
through memo. Ex.PK. The witness attested the memo.
EX.PK and his statement was recorded by the
Investigating Offi~er under Section 161 of the Code of
Criminal Procedure.
(xii)
PW.12 Yar. Muhammad supported the version of
.complainant Ghulam Muhammad PW.9.
(xiii) PW.13 Muhammad Sharif Sub-Inspector had undertaken
the investigation, -the details have already been mentioned
in paragraph 3 of this jUdgment.
6. The prosecution after tendering in evidence repots of
Chemical Examiner Ex.PP of Mst. Ferhat Bibi, Ex.PQ of Mst. Hajran
Bibi, EX.PR regarding crime weapons, Qameez and Shalwar, Ex.PS
regarding blood stained earth of Mst. Ferhat Bibi and Mst. Hajran Bibi,
and .report of Serologist regarding blood stained earth Ex.PT, closed its
evidence on 03.01.2005. Thereafter the learned trial Court recorded
statements of the accused under Section 342 of the Code of Criminal
Procedure on 03.03.2005. The accused denied the allegations levelled
against them and claimed their innocence. In reply to question "Why this
TAHIRMEHMOODV. ~TATE
pt.J
(Shahzado Shaikh, J.)'
case against you and why thePWs have deposed against you?" appellant
Tahir Mehmood stated as under:-"In fact there was a dispute between Mser Altwho was our step
brother and ourselves. Family of complainant Ghulam
Muhammad was also inimical towards us. The house purchased,
by Mst: Farhat Bibi was purchased with the money of Mser Ali
and it was in the name of Mst: Ferhat Bibi. Afser Ali wanted to
get back his house and there had been quarrel in between the
spouses. Mst: Ferhat Bibi had given birth to three daughters and
she was not iIi a position to give birth any other child. Afser Ali
wanted a son and for this purpose he wanted to hav~ second
marriage, to which Mst: Ferhat Bibi did not agree. This was also
a cause of grudge. Afser Ali with the. help of some one got
committed murder of his wife Mst. Ferhat Bibi and maidservant
Mst. Hajran Bibi after administering tranquilizer, and thereafter
with the help of his relatives got me falsely 'impliCated' in this
case."
7. Accused Muhammad. Akram endorsed'the reply of his
brother Tahir Mehmood .. Accused· Sajid Ali alias Sajjad Ali Munna in
..
reply to above-mentioned question stated as under:-- .
"IIi fact I am resident of same street where the occurrenee had
taken place. My inmates of the h?use including me had gone to
attend the marriage ceremony and my house was locked. Afser
Ali PW pressurized me to become a witness in this case and'to
depose as he desired against my co-accused Tahir Mehmood and
Muhammad Akram and on my refusal he became. angry and
involved me falsely in this case. All the PWs are related inter-se
and with Afser Ali PW and they deposed against me at the
instance of Afser Ali PW, In fact no recovery was effected from
me."
8. The learned trial Court after hearing learned' counsel for the
parties and completing the codal formalities convicted the appellants as
mentioned in opening paragraph of this judgment: .
9. We have gone through the file: Evidence of the prosecution
witnesses as well as statements of accused have been perused. The
relevant portions of the impugned judgments have been scanned.
10. Duringthe course of arguments, Sheikh Tariq Mehmood,
learned counsel for appellant TahirMehmood s~ted as under:
(i)
That it is an un-seen occurrence as no body had seen the
accused while entering or leaving the house of AfScl!' Ali
where the alleged occurrence of murder of two ladies had
taken place.
2012
TAHIRMEHMOODv. STATE
FSC 107
(Shahzado Shaikh, J.)
• (ii)
That Tahir Mehmood appellant was the person who first
informed the police about' the occurrence and on his
statement Ex.PJ, FIR Ex.PJJl was registered. However
subsequently Ghulam Muhammad complainant due to
enmity submitted an application Ex.PH before the police
for registration of the case against Tahir Mehmood,
Muhammad Akram and Sajjad Ali regarding the same
incident., Further that the police karwai mentioned on the
statement Ex.PJ of l'ahir Mehmood, appellant and on the
application Ex.PH submitted by Ghulam Muhammad
complainant was made by the same Sub Inspector namely
Muhammad Sharif.
(iii)
That Ghulam Muhammad complainant was resident of
City Haroonabad while the occurrence took place at
District Jhang; therefore, his ,coming to Jhang and his
presence there at that time was improbable.
(ivY
That Afsar Ali, husband of Mst. Ferhat deceased reached
at the spot after some time of the occurrence but he never,
came forward as complainant nor he was cited as witness
of recovery memos. of dead bodies and blood stained earth
which were prepared by the police in his presence.
(v)
That the place of occurrence was situated in a populated
area but no person from the locality appeared as witness.
(vi)
That this is an un-witnessed occurrence as no body had
seen the accused while committing murder of the ladies.
(vii)
That the prosecution evidence comprised interested
witnesses and their statements are highly discrepant and
not worthy of reliance.
(viii) T.hat the prosecution has failed to establish its case
beyond reasonable shadow of doubt.
(ix)
That motive of the occurrence. was not proved by the
prosecution from the evidence on record.
(x)
That Afsar Ali, husband ofMst. Ferhat Bibi deceased had
not uttered a single. word about the motive of the
occurrence.
(xi)
That there are contradictions in the statements of Afsar
Ali and other prosecution witnesses as Afsar Ali stated
that the ornaments and cash were taken away from an
iron box whereas the otherPWs stated that the same
were snatched from Ferhat Bibi deceased by the accused.
lOS FSC
TAHIR MEHMOOD v. STATE
PLJ
(Shahzado Shaikh, J.J
(xii)
That the evidence on the record does not justify the
conviction of the appellant and in any way t~e sentence
awarded to appellants is very harsh.
(xiii)
That the medical evidence does not support the
prosecution version.
(xiv) That the recoveries of9rnaments and ,crime weapon i.e.
dagger were planted against the appellants by the police.
Learned Counsel for the appellants raised a question of law that
whether the second application for registration of case which was
submitted by Ghula.m Muhammad complainant before the police and
, the evidence on the basis thereof which he had furnished before the
learned trial Court is inadmissible according to the provisions of Section
162 Cr.P.C.
The learned Counsel for appellant Tahir Mehmood placed
reliance on the ~ollowing case law:-2005 YLR 954 Muhammad Ahmad alias Danyal Vs. The State
Wherein it was held as under:
"According to Section 162,Cr.P.C, no statement of any person t~
a police officer in the course of investigation can be. used for any
pu'rpose except by the accused, and for' the purpose of
contradicting the witness as provided by Article 140 of Qanun-eShahadat Order. A reference is invited to AIR 1960 SC 391, AIR
1944 FC 38. Furthermore, it can neither be used for
corroboration of the prosecution or defence witness or even a
Court witness nor for contradicting the defence or a Court
witness. A reference is invited to AIR 1959 SC 1012. It is also
pointed out that the statement under Section 162, Cr.P.C. is not
a substantive piece of evidence. It can only be used for a limited
purpose of, contradicting such witness and the statement, cannot
be used for any other purpose. Reference is invited to PLD 1965
SC188, PLD 1964 SC 26.
The second, part of the statement ofP.W. Alam Sher is in '
admissible in evidence. The trial Court Was not justified to
record such inadmissible evidence. It should have not allowed to
come on the' record. The Court would have saved the time by
disallowing such evidenCe. The Hon. Privy Council in the case of
Zaheeruddin v. Emperor reported in AIR 1947 PC 750 observed
that when a Magistrate or presiding Judge discovers tliat the
witness has made the use. of a statement under Section 162"
Cr.P.C. when he was giving' evidence at the trial, it is his duty
2012
TAHIR MEHMOOD
V.
STATE
FSC 101
rShahzado Shaikh, J.J
undel' the said section to discard the evidenco of such witM.!l.!l
inadmissible.
Ai
In view of above position the second part of the statement of thE
P.W. Alam Sher is discarded as inadmissible.
2005 MLD 1470 Shaukat Ali Vs. The State
Wherein it has been held as under:--
· .'
"A bare perusal of Section 162 of the Criminal Procedure COdE
makes .it . manifest that the intention of the legislature, in
framing Section 162 in the manner it did, was to protect the
accused against the use of the statements of 'witnesses, made
before the police during the investigation, at the trial,
presumably on the assumption that the said statements were
not made in circumstances inspiring confidence. Both, the
section and the proviso, intended to serve primarily the same
purpose, i.e., interest of the accused. The section was conceived
in an attempt to find a via media, namely, while it enacts
absolute bar against the statement being used for any purpose
whatsoever and it enables the accused to rely upon it for limited
purpose of contradicting a witness in the manner as provided by
Article 140 of the Qanun-e-Shahadat Order by drawing his
atten~ion to parts of the statement intended for contradiction. It
cannot be used for corroboration of a prosecution or a defence
witness or even a Court witness, nor can it be used for
contradicting a defence or a Court witness by prosecution.
Article 140 of Qanun-e-Shahadat Order is controlled by Section
162, Cr.P.C. and the prohibition contained in Section 162,
Cr.P.C. cannot be defeated" '
.The learned Counsel also relied upon PLD 2007 SC 539
Muhammad Bashir Vs. Station House Officer, Okura Cantt &
others and PLD 2005 SC 297 Mst.Anwar Begum Vs. Station
House Officer, Police Station Kalri West, Karachi & 12 others on
the same point.
In PLD 2007 SC 539 it has been held as under:
"In so saying, we find strength from another aspect of the matter
also i.e. the provisions of Section 162, Cr.P.C. which provide
that:
"162(1). No statement made by any persoll to a police officer in
the course of an inve~igation under this chapter shall, if reduced
into writing, be signed by the person making it, nor shall any
such statement or any record thereof, .... ..... Be used for any
purpose .: ....... at any inquiry or trial in respect of any offence
llOFSC
,TAHIRMEHMOODV. STATE
(Shahzado Shaikh, J.)
PLJ
under investigation at the time when the statement was
'
made ........ "
Any steps taken by a 'police ·officer to find out about the
correctness or ,otherwise of the information conveyed to .him
would obviously entail collection of material in the form of '
questioning people and the parties etc. As Was done by the police
in the present case which is evideI).t f!'om ,the order in question '
of the learned A.S.J./Ex-officio Justice of the Peace. dated
12.12.2005. If such an exercise was pel~itted to be undertaken
before ,recording an F .l.R.then the F .I.R.. reducea into writing
thereafter would get hit by theprohibiticn contained .in the said '
Section 162, Cr.P.C.and any such F.LR. would become a futility
'being inadmissible in evidence.at the triill.'"
In PLD 2005 SC 297 it has been held as under:
"Registration of secondF:I.R.--Accv.sed mentioned in the first
F.LR. lodged by Manager oLdeceased were unknown and
untraceable--Police refused to record second F.I.R. as per
widow's version--High Court in Constitutional petition directed
Police to consider widow's version by examining her and· her
witnesses during investigation~-Validity-~Widow from the day of
incident had been alleging murder of her husband to be
managed by his real brothers iii league with· complainant of first
F.i.R. its Investigating Officer and others named accused-. Veracity and truthfulness of first F.LR. had become highly
doubtful in such circumstances--Widow was right in asking for
registration of another F.LR. as per her own version--Widow had
been moving applications and making ·representations·, to, highups in Police, but all in vain-~Discretionary powers under Art.
199 of the Constitution must be exercised by High Court in good
faith, fairly justly and reaso~ably.having regard to all relevant
circumstances 'and in accordance with the principles laid down
by .superior Courts-~Disposal. of Constitutional'· petition on
technical grounds without adverting to grievance of widow was
not legal--Widow had made out a case for registration of second
F .I.R.--Supreme Court accepted appeal with direction to Police
to register fresh F.I.R. on basis of widow's version within a week
and report its compliance to Officer-in-Charge of Court:"
11. Miss Raisa Sarvvat, learned Counsel for appellant Sajid Ali
alias Sajjad Ali, in addition to the arguments advanced by the learned
Counsel for appellant Tahir Mehmood, futther stated that SajidAli alias
, Sajjad Ali appellant had no relation with the accused or the complainant.
He was neither present at the place of occurrence nor he' was seen by
anyone while entering or leaving the house of Msar Ali; he was made an
III
2012
TAHIR MEHMOOD v. STATE
(Shahzado Shaikh, J.)
FSC 111
escaping goat and involved in this case falsely. She fmther stated that
Sajid Ali alias Sajjad Ali had taken plea in his statement under Section
342 Cr.P.C. that he was resident of. the same locality and he was not
present at home as he alongwith his family members had gone to attend
the marriage ceremony. Afsar Ali, husband of Ferhat Bibi deceased,
pressurized him to become a witness in this case and on his refusal Afsar
Ali involved him in this case. She further stated that Sajid Ali alias
Sajjad Ali, appellant had no enmity with the complainant party.
12. On the other hand, Mr. Seerat Hussain Naqvi, learned
Counsel for complainant stated as under:-(i)
That in murder cases usually no other independent
witnesses come forward to appear as witnesses except the
relatives.
(ii) That the prosecution has brought on record sufficient
material to connect the appellants with the commission of
offence.
(iii)
That although there is no eye-witness of the occurrence but
the case was fully proved through circumstantial evidence.
(iv) That the evidence produced by the prosecution was duly
corroborated by the recovery of ornaments and crime
weapons i.e. daggers which were recovered on the
pointation of the appellants.
(v) That the medical evidence also corroborates the prosecution
evidence.
.
(vi) That the motive of the occurrence was fully proved from the
evidence available on the record.
(vii) The learned Counsel for the complainant supported the
impugned judgment and prayed for dismissal of both the
appeals.
13. The learned DPG appearing for the State has adopted the
arguments of learned Counsel for the complainant. However he further
stated that the learned Counsel for the appellants pointed out some
minor discrepancies in the statements of the prosecution witnesses
which are not sufficient to discard the prosecution version. The
occurrence is fully proved from the facts and circumstances of the case.
The MLR has fully proved the injuries sustained by the deceased ladies .
due to which they died. The learI),ed DPG also supported the impugned
judgment stating that the appellants h~ve been rightly convicted and
112 FSC
TAHIR MEHMOOD v. STATE
(Shahzado Shaikh, JJ
PLJ
sentenced by the learned trial Court. He prayed that both the appeals .
may be dismissed~
14. . We have heard the learned Counsel for the parties and
perused the record with their assistance.
15. It isestablish~d from the record that complainantGhulam
Muhammad PW.9 alongwith Yar MuhammadPW.12 went to Ahmad
Hassan at Burewala and they, all the three, made program to go to
Faisalabad.via Jhang as the complainant wanted to see his sister Ferhat
Bibi, on the way. They reached the house of Ferhat Bibi at 5.00 p.m. and
found thatMst. Ferhat Bibi.and her maid servant Mst. H~ran Bibi were
murdered. The complainant suspected Tahir Mehmood as accused of
this occurrence and he made application to the police for registration of
FIR. It is not material that the complainant was resident of Haroon Abad
while the occurrence took place in District Jhang as Ghulam
Muhammad Complainant is real brother of Mst. Ferhat Bibi, it' is,
natural that he on having come to know about the murder of his sister,
made efforts to lodge the case. Furthermore the complainant stated
about the e2l."tra judicial confession made by Tahir M;ehmo,pd appellant
before him to the effect that on inquiry Tahir Mehmood told that he and
his friend. Sajid Ali alias Sajjad Ali, armed with daggers, entered the
house of Mst. Ferhat Bibi and demanded money from her and on. her
refusal he snatched ornaments from her and murdered her by .giving
dagger blows: Mst. Hajran Bibi, maid servant, raised hue and cry,
therefore, Sajjad Ali gave' daggers blows to Mst. Hajran Bibi resulting
into her murder. The appellants had not produced sufficient reaso,ns in
rebuttal of extra judicial confession. The statement of the complainant
was corroborated by PW.6Msar Ali, husband and PW.7 Sana Msar,
daughter of Mst. FerhatBibi deceased. Msar Ali stated that he recorded
in his statement before the police that murder of his wife and maid
servant was committed 'by his step brothers Tahir Mehmood and
Muhammad Akram accused with the consultation of their mother.
Accused Sajid Ali, neighbour and friend of Tahir Mehmood accused was
also involved in the said murders. He also stated that the accused 'had
also taken away gold ornaments and cash. The said stolen articles were
recovered from the appellants, Sana M:sar, daughter 'of Mst. Ferhat Bibi
deceased stated that three days prior to occurrence, her step uncle Tahir
Mehmood and. Muhammaq Akram at the instance of their mother Mst.
Ferozan had taken oath on' Holy Quran to finish the' family of Mst.
Ferhat Bibi as the accused wanted to get transferred her housein their
name 'and for this purpose they had beaten her mother. She. further
stated that in absence of her father, both the accused used to snatch
money from her mother after beati.ng her. PW.12 Yar Muhammad,
companion of complainant Ghulam Muhammad also supported the
version of the complainant regarding extra judicial. confession. mad p J...v