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Petitioner: NAZIR AHMAD VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: NAZIR AHMAD vs The STATE Case No.: Criminal Appeal No,1098 and Murder Reference No,591 of 2006 Date of Judgment:2012-02-07 Reported As: 2013 YLR 2090 Result: Appeal accepted
JUDGMENT
JUDGMENT ' MALIK SHAHZAD AHMAD KHAN, J.---Nazir Ahmad appellant along with Sultan Mehmood and Khalid Mehmood co-accused were tried in case F.I.R. No,1494, dated 12-12-2005, registered at Police Station Sadar, District Faisalabad in respect of offences under sections 302/34 of P.P.C. After conclusion of the trial, learned trial Court vide its judgment dated 20-6-2006 while acquitting co- accused namely Sultan Mehmood and Khalid Mehmood has convicted and sentenced the appellant as under:-- ' Nazir Ahmad ' Under section 302(b), P.P.C. To 'Death' for committing Qatl-e-Amd of Nazar Hussain deceased. He was also ordered to pay Rs,1, 00,000 (rupees one hundred thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr. P.C. Or in default to suffer simple imprisonment for six months. 2. Feeling aggrieved, the appellant has challenged his conviction and sentence through Criminal Appeal No, 1098 of 2006, whereas the learned trial Court has transmitted Murder Reference No, 591 of 2006 for confirmation or otherwise of the Death sentence of Nazir Ahmad appellant. We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 26-6-2006 passed by the learned Additional Sessions Judge, Faisalabad. 3. Brief facts of the case as disclosed by Sarwar complainant (P.W.8) in application Exh. PD on the basis of which F.I.R. Exh.PD/1, was registered are that the complainant party sold a buffalo to Nazir Ahrnad appellant in consideration of Rs,25,000 out of which Nazir Ahmad appellant paid an amount of Rs,24,700, whereas, an amount of Rs,300 was outstanding against him. The complainant party used to demand the said amount of Rs,300 but Nazir Ahmad appellant kept on lingering the
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matter. On 11-12-2005 at 11.00 p.m., the complainant Sarwar (P.W.8) along with his brothers Nazar Hussain (deceased), Shaukat Ali and Phuphizad Sarfraz Ahmad (P.W.9) was coming back to the village from their 'Dera' and when they reached near the Haveli of Nazir Ahmad appellant, they decided to inquire about their outstanding amount of Rs,300 from Nazeer Ahmad appellant. All of them went inside the 'Haveli' of Nazir Ahmad appellant where Khalid Mehmood and Sultan co- accused (since acquitted) were also present along with Nazir Ahmad appellant in a room of said 'Haveli'. Nazar Hussain (deceased) demanded the outstanding amount from Nazir Ahmad appellant, on which, the appellant Nazir Ahmad, Khalid Mehmood and Sultan Mehmood co- accused (since acquitted) started hurling abuses. Nazar Hussain (deceased) forbade them from abusing, upon which Sultan Mehmood co-accused (since acquitted) asked Nazir Ahmad appellant that he (Nazar Hussain deceased) was not going to stop making the demand of outstanding amount, so he be shot dead. Khalid Mehmood co-accused (since acquitted) handed over a .12 bore repeater gun to Nazir Ahmad appellant. The complainant party ran out of the room but they were chased by the accused. Khalid Mehmood co-accused (since acquitted) caught hold of the complainant Sarwar, whereas, Sultan Mehmood co-accused (since acquitted) took Shaukat into his clutches. Nazar Hussain when turned back the appellant Nazir Ahmad made a fire shot which hit above the knee of left thigh of Nazar Hussain who fell down. The appellant Nazir Ahmad and his co-accused fled away from the spot while extending threats of dire consequences. The injured Nazar Hussain was shifted to the hospital but he succumbed to the injury. 4. After completion of investigation, the challan was submitted before the trial Court. The appellant Nazir Ahmad and his co-accused namely Sultan Mehmood and Khalid Mehmood were charge- sheeted, to which, they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 12 P.Ws. The complainant Sarwar (P.W.8) and Sarfraz Ahmad (P.W.9) furnished ocular account of the occurrence. Medical evidence was given by Dr. Arshad Masood (P.W.3), whereas, Arshad Ali, S.-I. (P.W.12) was the Investigating Officer of this case who completed the investigation and submitted the challan. He on 17-1-2006, upon disclosure of Nazir Ahmad appellant, allegedly got recovered repeater .12 bore P-3 which was taken into possession vide memo Exh.PE. Hafiz Muhammad Nasir (P.W.7) was the recovery witness of repeater .12 bore. 5. After completion of prosecution evidence the statement of the appellant Nazir Ahmad and his co-accused under section 342 of Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to a question "Why this case against you and why the P.Ws. Have deposed against you" the appellant replied as under:-- ' Nazir Ahmad "The case is false one. Actually on the night the occurrence at about midnight I was sleeping in my Haveli along with my servants. On listening some noise, I woke up and found there three unknown persons with muffled faces in the courtyard of my Haveli. I haulted them and asked their antecedents but on non-reply. I made a fire just to frighten them. This fire hit on one of them, rest of two persons fled away from the spot. I thereafter removed the cloth from the face of persons who received fire shot and fell down in my courtyard and I recognized him as Nazar my co- villager. Upon this, I informed about this incident to the heirs of Nazar Hussain who subsequently came there. Blood was oozing so, I along with heirs of Nazar Hussain shifted him to the Clinic of Dr. Ghulam Rasool where he was provided first aid and his wound was stitched. After that Nazar Hussain was shifted to hospital and during the way to the hospital he succumbed to the injury. Deadbody was brought back and it was kept in my Haveli and it was mutually settled that as it was an incident, so case would not be registered but later on complainant party got registered this case against me in spite of the fact that it was an accidental death. On the day of occurrence, I was having a gun with me just to guard my cattle and property as prior to 1/2 months of this occurrence, a dacoity occurrence was committed with me at my Haveli. I had no dispute
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whatsoever between me and Nazar Husain deceased in respect of sale of buffalo nor any amount was outstanding against me. Further there was no enmity between me and Nazar Hussain deceased, so there was no question with me to murder him". 6. Neither the appellant made statement under section 340(2), Cr.P.C. Nor he produced any evidence in his defence. The learned trial Court vide its judgment dated 26-6-2006, while acquitting co-accused Sultan Mehmood and Khalid Mehmood, found Nazir Ahmad appellant guilty, convicted and sentenced him as mentioned and detailed above. 7. The learned counsel for the appellant, in support of this appeal, has contended that the story of the prosecution is highly improbable because the reason for coming of the complainant pariy to the Haveli of the appellant in the late hours of night does not appeal to common sense as there is nothing available on the record that the complainant ever sold any buffalo to the appellant; that if the story given in the F.I.R. Is accepted as correct to the effect that the complainant had already received an amount of Rs,24,700 out of the total .Sale consideration of Rs,25,000 then story of going to the Haveli of the complainant Nazir Ahmad at odd hours of night in order to make demand of outstanding amount of Rs,300 does not appeal to one's mind; that as per F.I.R. The occurrence took place on 11-12-2005 at 11-00 p.m. Whereas the matter was reported to the police on the next day at 8-40 a.m. Which shows that there is delay of about ten hours in lodging the F.I.R. Which has not been plausibly explained; that Sarfraz Ahmad (P.W.9) is admittedly not resident of the village where this occurrence took place, therefore, he is a chance witness and the reason given by him for his presence at the relevant time at the place of incident is highly improbable; that this witness has also admitted that the deceased was taken to the hospital at 12-15/12-30 night and, thereafter, his deadbody was brought back to the village which does not appeal to a prudent mind; that motive as alleged by the prosecution has also not been proved through any cogent piece of evidence; that the recovery of repeater .12 bore P-3 is of no avail to the prosecution because there is no report of Forensic Science Laboratory available on the record; that the co-accused namely Sultan Mehmood and Khalid Mehmood of the appellant, were acquitted on the same evidence and the evidence which has been disbelieved qua the acquitted co-accused of the appellant cannot be believed against the appellant; that the prosecution has failed to prove its case against the appellant beyond the shadow of any doubt and that the appellant is entitled to acquittal. 8. On the other hand, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has vehemently opposed the contentions of the learned counsel for the appellant on the grounds that the appellant has specifically been nominated in the F.I.R. With the specific role of causing firearm injury on the person of Nazar Hussain which resulted into his death; that no allegation of misidentification arises as the appellant was residing in the same area where this occurrence took place; that the delay per se in lodging the F.I.R. Is no ground to discard the evidence of the eye-witnesses and even otherwise there is no delay in reporting the matter to the police; that in order to prove its case, the natural eyewitnesses account has been furnished by the prosecution, which inspired confidence and despite cross-examination, the defence could not shake the testimony of the prosecution witnesses; that the ocular account is fully supported by the medical evidence as the deceased received injury on his person, which fact is evident from the post mortem examination report (Exh. PB); that the motive has also been proved by the prosecution; that even otherwise in such like cases substitution is a rare phenomenon; that the prosecution has proved its case against the appellant beyond the shadow of any doubt and the defence evidence is not reliable; that the appeal filed by the appellant against his conviction be dismissed and the Murder Reference may be answered in the affirmative. 9. We have heard the arguments of learned counsel for the parties at length and perused the record minutely with their able assistance.
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10. It would not be out of place to mention here that it is a case of two versions, i,e, one put forth by the prosecution in the form of ocular account furnished by Sarwar complainant (P.W.7) and Sarfraz Ahmad (P.W.9), whereas, the other has been brought on the record through the statement of Nazir Ahmad (appellant), recorded under section 342 of Cr.P.C. And put to the prosecution witnesses before the learned trial Court. 11. It is settled now by the Hon'ble Supreme Court of Pakistan in a number of judgments that it is the prosecution which is required to prove its case against the accused persons beyond any shadow of doubt and the defence version is to be taken into consideration after evaluating the prosecution evidence to find out whether the same inspires confidence or not?. In this regard, we have been fortified by an illustrious pronouncement of the Hon'ble Supreme Court of Pakistan in the case reported as Ashiq Hussain v. The State (PLD 1994 SC 879), wherein, at page 883, the learned Apex Court of the country has been pleased to observe as under:-- "The proper and legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement 'of the accused under section 342 of Cr.P.C., statement under section 340(2) and the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the - Code/law, then the accused should be convicted for that offence only. In case of contraventions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence, plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly." ' The above view of the learned apex Court of the country has been reiterated in the case reported as Amin Ali v. The State (2011 SCM R 323), therefore, following the ptinciples settled by the Hon'ble Supreme Court of Pakistan in such like situation, we will, first, examine the case of the prosecution. 12. The occurrence in this case as per F.I.R. Exh. PD/1 took place on 11-12-2005 at 11-00 p.m. (night) and the matter was reported to the police by the complainant Sarwar (P.W.8) on 12-12-2005 at 8- 40 a.m. And formal F.I.R. Was also chalked out on 12-12-2005 at 9-40 a.m. The Police Station Sadar, District Faisalabad was at a distance of 20 kilometers from the place of occurrence. The incident has taken place in the house of Nazir Ahmad appellant situated in Chak No, 233/R.B. Village Hari Singh Wala, Police Station Sadar, District Faisalabad. The first question before us is to determine whether there was any delay in reporting the matter to the police or not. We have noted in this context that it is the case of the complainant that during the. Incident Nazar Hussain became injured, he and other prosecution witnesses took him to the hospital where he succumbed to the injury. In cross-examination Sarfraz Ahmad (P.W.9) has stated that they reached at the DHQ Hospital at 12-15/12-30 a.m. (night) where Nazar Hussain expired in the Emergency Ward at 1-00/1- 15 a.m. (night) and thereafter he took his deadbody back to the village. He has also admitted that
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neither they nor the officials of DHQ hospital had informed the police about the occurrence. Surprisingly, the statement of the complainant was recorded by the police official namely Arshad Ali, S.-I. At the spot at 8-40 a.m. And there is nothing on the record why in between the above mentioned period, i,e, 11-12-2005 at 11-00 p.m. To 12-12-2005 at 8-40 a.m. The police was not informed about the incident. The complainant Sarwar (P.W.8) has stated during his cross- examination that the incident was reported to the police on the next morning on telephone. The relevant part of his statement is reproduced hereunder:-- "The occurrence was informed to the police at about 8-00 a.m. By me through telephone; again said any of our relative had informed the police on telephone." ' The above mentioned part of statement of the complainant Sarwar (.P.W.8) has established that the, telephone facility was available at the place of occurrence but in spite of that the police was not informed by the complainant or anybody else for almost ten hours. The complainant and prosecution witness could not justify the above mentioned inordinate delay in reporting the matter to the police and this fact has created serious doubts about the presence of the complainant and other eyewitnesses at the place. Of occurrence. The application Exh, PD was also not lodged at Police Station rather the matter .Was reported to Arshad Ali, S.-I. (P. W.12) at the spot. The delay of almost ten hours in lodging the F.I.R. Provides sufficient time for deliberation and consultation, especially when the prosecution has not given any plausible explanation for delay in lodging the F.I.R. The Hon'ble Supreme Court of Pakistan while discussing the delay in lodging the F.I.R. In the case of Akhtar Ali and others v. The State (2008 SCM R 6) at page 12 has observed as under:- "It is also an admitted fact that the F.I.R. Was lodged by the complainant after considerable delay of 10/11 hours without explaining the said delay. The F.1.R. Was also not lodged at Police Station as mentioned above. 10/11 hours delay in lodging of F.I.R. Provides sufficient time for deliberation and consultation when complainant had given no explanation for delay in lodging the F. I. R.". ' Similar view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Nazeer Ahmad v. Gene Khan and others (2011 SCM R 1473) wherein the delay of seven hours in lodging the F.I.R. Was considered to be a ground which adversely reflected on the credibility of prosecution version. ' The complaint Exh.PD was not lodged at Police Station rather it was chalked out at the spot and this fact has been admitted by Sarwar (P.W.8) and Sarfraz Ahmad (P.W.9). The complainant Sarwar (P.W.8) has stated that the complaint Exh.PD was chalked out at the spot. The Hon'ble Supreme Court of Pakistan has held in its number of judgments that when first information report was recorded at the spot, the same would be considered to be recorded after due deliberations. The Hon'ble Supreme Court of Pakistan in the case of Allah Bachaya and another v. The State (PLD 2008 SC 349) at page 354 discussed the said issue in the following terms:-- "In the instant case, the F.I.R. Was not recorded at the police station. It has been held time and again that F.I.Rs, which are not recorded at the Police Stations suffer from the inherent doubt that those were recorded at the spot after due deliberations. ' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the lease of Akhtar Ali and others v. The State (2008 SCM R 6). ' We are, therefore of the view that the FA.R. Was recorded with a. Considerable delay, therefore, in these circumstances chances of deliberation and consultation, in twisting the story, on the part of the complainant, cannot be ruled out. 13. The post-mortem in this case was also conducted with the delay of almost 14 hours from the death of Nazar Hussain. The occurrence in this case took place on 11-12-2005 at 11-00 p.m. (night). The prosecution witnesses, i,e, Sarwar (PW8) and Sarfraz Ahmad (P.W.9) had stated that they had taken Nazar Hussain in an injured condition to DHQ hospital on the night of occurrence where he succumbed to the injury. The prosecution witnesses made an excuse that,the deadbody of Nazar Hussain deceased was brought back to the village. Sarfraz Ahmad (P.W.9) during his cross-
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examination has given the time of death of Nazar Hussain deceased at about 1-00/1-15 a.m. (night) at the hospital but the postmortem of the deceased Nazar Hussain was conducted on 12-12-2005 at 3-30 p.m. So it is evident from the perusal of the above mentioned evidence that post-mortem of the deceased Nazar Hussain was conducted with, an inordinate delay of about 14 hours from his death and more than 16 hours from the alleged occurrence. It also cast doubts about the prosecution story. 14. The prosecution version as furnished by Sarwar (P.W.8) and Sarfraz Ahmad (P.W.9) was that the complainant party sold a buffalo to the appellant in consideration of Rs,25,000. The appellant Nazir Ahmad allegedly paid an amount of 'Rs,24,700 out of the above mentioned sale consideration and only an amount of Rs,300 was outstanding against the appellant and on the demand of the complainant the appellant was delaying the matter on one pretext or the other and on the fateful night at 11-00 .p.m. The complainant. Sarwar (P.W.8) along with Nazar Hussain deceased, Shaukat and Sarfraz Ahrnad (P. W;9) while coming back to their village from their Dera went inside the Haveli 'of the appellant Nazir Ahmad and demanded Rs,300, whereupon an altercation took C place and the appellant Nazir Ahmad made a fire shot at Nazar Hussain (deceased) which landed on his left thigh. This story does not appeal to a common sense because if the complainant has already received an amount' of Rs,24,700 then for the remaining amount of Rs,300, there was no justification for going inside the house of the appellant at odd hours of winter night, i,e, 11.00 p.m. ' The complainant Sarwar (P.W.8) has stated that 'on the day of occurence he along with the deceased Nazar Hussain and other prosecution witnesses went to the fields to cut loosan' crop which was to be supplied in the market on the following day. He has also stated that he kept on cutting the `loosan' crop till 10-30 p.m. (night). This story of the prosecution witnesses is also not believable because it is not probable that in the winter season, i,e, in the month of December the complainant, the deceased and prosecution witnesses wld keep on cutting the `loosan' crop in th darkness of night till 10-30 p.m. Sarfraz Ahmad (P.W.9) is resident of village Chak No, 213/RB whereas the occurrence took place in Chak No, .233/RB. He is not resident of the village where the occurrence took place. In order to justify his presence at the place of occurrence he has stated that he had come in order to see his maternal uncle; therefore, he is a chance witness. 15. The prosecution case as given in the application Exh.PD by the complainant Sarwar (P.W.8) is in conflict with the medical evidence given by Dr. Arshad Masood (P.W.3). It was case of the complainant in the application Exh. PD, on the basis of which F.I.R. Exh.PD/1 was registered, that the fire shot made by Nazir Ahmad appellant landed above the knee of left leg of Nazar Hussain deceased. The relevant portion of the application Exh. PD is reproduced hereunder:-{{URDU TEXT}} ' The part of the body, i,e, knee (URDU TEXT ) of a human being is located on the front side of the leg but according to the evidence of Dr. Arshad Masood (P.W.3) the wound on front of left thigh above knee of Nazar Hussain deceased was an exit wound whereas the entry wound was on the back part of the left. Thigh. The relevant part of the statement of Dr. Arshad Masood (P.W.3) regarding injuries on the deadbody of Nazar Hussain is reproduced hereunder:-- (1) A firearm wound of entry 4 x 1 cm on the back and middle part of left thigh, 12 .Cm above left knee, the wound had three stitches. (1-b) Five firearm, wounds of exit in an area of 5 x 4 cm on front of left thigh, 7 cm above left knee, 2 cm outer to mid line. Each one wound measured 1 x 1 cm. ' By this injury the posterior leg muscles were damaged, the posterior major blood vessels (poplitial) were damaged, the inner side of left femur was damaged and then anterior muscles and blood vessels were damaged. Large amount of blood was present in muscles. (2) A surgical exploration wound 17 cm long on front of left thigh, in midline. It had 9 stitches. It was 5 cm above left knee.
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' Sarwar (P.W.8) while appearing in the Court did not mention the exact seat of injury and he simply stated that the fire shot made by Nazir Ahmad appellant landed on left leg of Nazar Hussain deceased but conflict between the ocular and medical evidence is evident from the perusal of application Exh. PD and the evidence of Dr. Arshad Masood (P.W .3). The statement of Sarfraz Ahmad (P.W.9) recorded before police Exh.DA was also in line with the statement made by the complainant Sarwar (P.W.8) in F.I.R. Exh.PD/1. The relevant part of his statement as recorded in Exh.DA is reproduced hereunder:-{{URDU TEXT}} The said witness has also made dishonest improvement in his statement while appearing before the court wherein he has stated that the fire shot made by .Nazir Ahmad appellant landed on back side of left thigh of Nazar Hussain: The relevant part of his statement is reproduced hereunder:-- "Nazir accused whereupon made a fire shot on Nazar…
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