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Petitioner: Ijaz Hussain etc. and Mst. Hameeda VS Respondent: The State etc. and Ijaz Hussain etc.
Court Name: Lahore High Court Judge(s): Aalia Neelum Title: Ijaz Hussain etc. and Mst. Hameeda vs The State etc. and Ijaz Hussain etc. Case No.: Crl. Appeal No. 38 of 2014 and Crl. Revision No. 80 of 2014 Date of Judgment:2016-09-16 Reported As: 2016 LHC 2858 Result: Criminal Revision Dismissed
Judgment Aalia Neelum, J.- Ijaz Hussain, Riaz Hussain both sons of Rab Nawaz, Rab Nawaz son of Khuda Bukh sh, all Balouch by caste, residents of Chah Rakhey Khan Wala, Mouza Razai Shah Shumali, Tehsil and District Bhakkar and Aman Ullah son of Fateh Sher, caste Balouch, resident of Mouza Razai Shah Shumali, Tehsil and District Bhakkar , the appellants were involved in case F.I.R. No.324 of 2011, dated 14.6.201 1, offence under Sections 302, 147, 149 PPC, registered at Police Station Saddar Bhakkar and were tried by the learned Sessions Judge, Bhakkar . The learned trial court seized with the matter in terms of judgment dated 18.12.2013 convicted the appellants under Section 302(b) PPC read with section 34 PPC and sentenced to undergo imprisonment for life with the direction to pay Rs.2,00,000/- each as compensation to the legal heirs of Madah Hussain, deceased under section 544-A Cr.P.C. and in case of default thereof, further undergo imprisonment for six month each. The benefit of Section 382-B of Cr .P.C was also extended in favour of the appellants. 2. Feeling aggrieved by the judgment of the learned trial court, the appellants have assailed their conviction through filing of the instant appeal. 3. The complainant being dissatisfied with the judgment dated 18.12.2013, also filed a Criminal Revision No.80 of 2014 against the respondents No.2 to 5 for enhancement of sentence of respondents/accused, Ijaz Hussain, Riaz Hussain, Rab Nawaz and Aman Ullah from life to death. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, they are being disposed of through a single judgment. 4. The prosecution story as alleged in the F.I.R (Ex.PD) lodged on the oral complaint of Mst. Hameeda (PW-6) that except herself there are three other married sisters and she being virgin used to reside with her father to serve him. The complainant (PW-6) further alleged that on 14.6.201 1 at about 6.00 p.m. she along with her father Madah Hussain was grazing buffalos in a dry pitch situated at a distance of about 150 Karams from her house. In the meanwhile, accused Rab Nawaz, Riaz Hussain, Ijaz Hussain, Aman Ullah and unknown person reached there whereafter Rab Nawaz accused raised Lalkara to teach them a lesson for returnin g the land. Upon this, accused Riaz Huss ain, Ijaz Hussain and Aman Ullah caught hold her father and started beating by inflicting multiple fists blows but father of the complainant rescued himself from
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the clutches of the accused persons and ran towards home to save his life and when her father reached in his land, the accused persons again caught hold of her father and started beating, resultantly complainant' s father fell down on the ground. Accused Rab Nawaz caught hold of her father from his legs and remaining accu sed persons pressed his neck and on hue and cry, the PWs Nazir Khan, brother-in-law "Bahnoi" and Meesam Temar "Bhanja" came at the spot but at that time, her father died. The accused persons ran away on arrival of the PWs. The motive behind the occurrence is that the accused persons had forcible possession over the land owned by father of the complainant against which the father of the complainant had filed civil suit in the civil court. 5. After the alleged occurrence, the complainant (PW-6) rushed to the police station for reporting the occurrence and she (PW-6) met with Hafiz Muhammad Rustam, Inspector/SHO (PW-10), who reduced into writing the FIR (Ex.PD) on the oral statement of the complainant (PW-6) and same was read over to the complainant, whereupon the complainant (PW-6) put her thumb mark as a token of its correctness.Thereafter , the Investigating Officer/Inspector/SHO (PW-10) reached at the spot, prepared injury statement (Ex.PJ), inquest report (Ex.PJ/1) of Madah Hussain, deceased and handed over the dead body of the deceased for post mortem examination to Aamir Riaz 931/C (PW-9) from DHQ Hospital, Bhakkar .Thereafter the Investigating Officer (PW-10) prepared rough site plan of the place of occurrence (Ex.PK), took into possession glass P- 3 and Sota P-4 belonging to the deceased from the spot vide recovery memo (Ex.PF) and recorded the statements of the prosecution witnesses, namely , Nazir Hussain and Meesam Temaar PWs under section 161 of Cr.P.C. On 15.6.201 1 at about 6.30 a.m. Aamir Riaz 931/C produced before him (PW-10) the post mortem exam ination report of Madah Hussaihe place of occurrence and prepared the scaled site plans Ex.PA and Ex.PA/1 whereon he recorded marginal notes in red ink on 27.6.201 1. On 26.6.201 1, the Investigating Officer (PW-10) arrested accused Aman Ullah and Ijaz Hussain. On 13.7.201 1 he (PW-10) prepared the challan against them. On the application of the complainant, the dead body of Madah Hussian, the deceased was disinterred on the order of the learned Illaqa Magistrate on 15.7.201 1 and the doctors conducted the re-post mortem examination of the deceased after exhumation, whereafter the doctors hande d over one sealed envelope, one sealed parcel and one sealed jar to Muhamm ad Imran 972/C who produced the same before the Investigating Officer (PW- 10) and he took the same into possession vide recovery memo (Ex.PG). On 17.7.201 1 Mst. Hameeda complainant produced before him (PW-10) the turban of accused Rab Nawaz P-1 which was left by him at the spot after the occurrence which was taken into possession vide recovery memo (Ex.PB). On the same day, two CDs P-2/1-2 were produced by one Muhammad Aslam Khan son of Fateh Sher before the Investigating Officer who took the same into possession vide recovery memo (Ex.PC) and on 24.7.201 1 the Investigating Officer recorded statements of Mumtaz Ahmad 553/MHC and Muhammad Tariq 303/C. On 25.7.201 1, the Investigating Officer (PW-10) arrested Rab Nawaz accused and on the following day, he sent him to judicial lock up. 6. Having found the accused guilty , the Investigating Officer prepared report under Section 173 Cr.P.C., while placing the names of accused Ijaz Hussain, Aman Ullah, Rab Nawaz in Column No.3 whereas Riaz Husain accused in column No.2 of the Challan to face the trial. 7. The learned trial court formally charge sheeted the appellants on 10.10.201 1, to which they pleaded not guilty and claimed trial. The prosecution in order to advance its case produced as many as eleven witnesses. Mst. Hameeda Bibi (PW- 6) is the complainant of the case, whereas her testimony was supplemented by Nazir Hussain (PW-7). Hafiz Muhammad Rustom, Inspector/SHO (PW-10) is the Investigating Officer and he also chalked out FIR (Exh.PD). Dr. Muhammad Ishaq (PW-11) was Chairman of the Board who conducted the re-post mortem examination on 15.7.201 1 of the dead body of Madah Hussain-deceased. Dr. Muhammad Ishaq (PW-11) conducted re-post mortem examination of Madah Hussain-the deceased on 05.7.201 1 and observed as under:- "On 05.07.2011, I was posted as Medical Superintendent, DHQ hospital, Bhakkar. On the same day, I received the order of learned Judicial Magistrate, Bhakkar for exhumation and re-post mortem examination of Madah Hussain deceased. Firstly, I fixed the date of re-post mortem examination on 12.07.2011 but on that day, I had gone to attend the meeting with Secretary Health, Govt. of Punjab, Lahore and the date was re-fixed as 15.7.2011 for re-post mortem examination. The board for re-post mortem examination was consisting upon myself as chairman and the members were Dr. Muhammad Aslam, District Health Officer, Bhakkar, Dr. Muhammad Ramzan, District Medico-legal Officer, Bhakkar, Dr. Eesab Khan, District Pathologist, DHQ DHQ Hospital, Bhakkar . On the same date, the standing medical board examined the dead body of Madah Hussain deceased after exhumation and the learned Illaqa Magistrate
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was also present at that time who handed over the dead body to the Standing Medical Board for post mortem examination. The medical board conducted the post mortem examination of Madah Hussain deceased and observed as under:- "The dead body brought out from the grave was wrapped in Kaffan?. The dead body was in advance putrefaction stage. Skin and flash was mostly putrefied. Scalp, hairs were mostly shed out. No mark of violence/injury can be ascertained on the body at that stage due to advanced putrefactive changes. All visceras were putrefied. Scalp and skull were already dissected and vertebras were healthy. Sample of hyoid bone was taken and dispatched to the Bacteriologist, Govt. of Punjab, Lahore for histopathology. Final opinion was kept under observation for want of report from Bacteriologist, Govt. of Pun jab, Lahore. After receiving the bacteriologist report vide reference No.1100-FH dated 29.11.201 1, final opinion was given that most probable mode of death was asphyxia caused by throttling. Rest of the formal witnesses are formal in nature. 8. On 28.11.2013 the learned Assistant District Public Prosecutor gave up PWs-M ureed Abbas, Muhammad Javed 616/C, Dr. Muhammad Ramzan and Dr. Mazhar Abbas being un-necessary and PW Dr. Imran Ansari being won over by the accused party on the application made by the complainant and after tendering the documents Ex.PN and Ex.PN/1 closed the prosecution evidence. 9. The appellants were also examined under Section 342 Cr.P.C, wherein they opted not to lead defence evidence and not to appear as their own witness in terms of Section 340 (2) Cr.P.C in disproof of allegations levelled against them, however , accused Rab Nawaz produced certain documents i.e. Ex.DD to Ex.DX/22 as well as Mark-DA to Mark-DD and closed his defence evidence while remaining accused/appellants relied upon the said documents produced by Rab Nawaz accused and intended for not producing any further evidence in their defence. While replying to a question that why this case is against them and why the PWs have deposed against them, Rab Nawaz appellant made the following deposition:- "The PWs of the case are very closely related with each others and inimical to me and my other co-accused due to previous enmity stated in my reply to the question No.3. So they have falsely implicated me in this case. It was an unseen occurrence. The deceased was done to death by unknown assailants as deceased was having many enemies. So he was done to death in different manner , different time and different place and later on, due to enmity , I and my sons along with Aman Ullah were implicated in this case to revenge their enmity. The occurrence was un- witnessed. Later on, my enemy was called upon and with due deliberation, consultation and after padding, this false case was registered against me. During the course of investigation, I was not found involved in this case." In reply to question No.3 as stated above examined under section 342 Cr .P.C., Rab Nawaz-accused deposed as under:- "As Mst. Hameeda Bibi was engaged in her childhood with Riaz Hussain accused and after gaining puberty, Riaz Hussain accused refused to marry her. On this account, the enmity started between the parties. Later on, a case under section 307 PPC was also registered between the parties. Subsequently a consolidation proceedings was started in Mouza Razai Shah, in which I along with my sons Ijaz Hussain and Riaz Hussain who were also owners in the landed property which is situated in Mouza Razai Shah. Madah Hussain deceased with the collusion of consolidation staff got our land in his favour, upon which we preferred an appeal against the consolidation proceedings. The property was restored to us up till Revenue Board. The record was corrected by the Revenue Staff in my favour and others. This bore grudge to the complainant party as the possession of land was delivered to us after correction of revenue record. This prompted the complainant party to lodge this false case against me, my sons and Aman Ullah.I have no relation whatsoever with the complainant party except as stated by me as above. The motive stated is false and favourless. Likewise, co-accused Riaz Hussain in his statement examined under Section 342 Cr .P.C. deposed as under:- "The PWs of the case are very closely related with each others and inimical to me and my other co-accused due to previous enmity stated in my reply to the question No.3. So they have falsely implicated me in this case. It was an unseen occurrence. The deceased was done to death by unknown assailants as deceased was having many enemies. So he was done to death in different manner, different time and different place and later on, due to enmity, I and my father Rab Nawaz, my brother Ijaz Hussain along Aman Ullah were implicated in this case to revenge their enmity. The occurrence was un-witnessed. Later on, my enemy was called upon and with due deliberation, consultation and after padding, this false case was registered against me. During course of investigation, I was declared innocent. I also produced CSs of my presence in marriage ceremony at Dera Ismail Khan. The CDs are P-2/1-2 which were sescured by
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the IO through recovery memo Ex.PC and the same show my presence in District Dera Ismail Khan and on the day and time of alleged occurrence, I was so declared innocent due to the above-said evidence." "The PWs of the case are very closely related with each others and inimical to me and my other co-accused due to previous enmity stated in my reply to the question No.3. So they have falsely implicated me in this case. It was an unseen occurrence. The deceased was done to death by unknown assailants as deceased was having many enemies. So he was done to death in different manner , different time and different place and later on, due to enmity , I and my father Rab Nawaz, my brother Rab Nawaz along Aman Ullah were implicated in this case to revenge their enmity . The occurrence was un- witnessed. Later on, my enemy was called upon and with due deliberation, consultation and after padding, this false case was registered against me. During course of investigation, I was not found involved in this case." Similarly , Aman Ullah, accused in his statement examined under Section 342 Cr .P.C. deposed as under:- "The PWs of the case are very closely related with each others and inimical to me and my other co-accused due to previous enmity stated in my reply to the question No.3. So they have falsely implicated me in this case. It was an unseen occurrence. The deceased was done to death by unknown assailants as deceased was having many enemies. So he was done to death in different manner , different time and different place and later on, due to enmity , I and my co-accused persons were implicated in this case to revenge their enmity . The occurrence was un-witnessed. Later on, my enemy was called upon and with due deliberation, consultation and after padding, this false case was registered against me. During course of investigation, I was not found involved in this case." 10. After hearing the arguments advanced by the learned counsel appearing on behalf of the parties, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellants in the above stated terms. 11. Learned counsel for the appellants have submitted that they are absolutely innocent; they have falsely been involved in the case by the complainant with malafide intention; that in the FIR, the complainant had given collective role to the appellants and later on, the prosecution witnesses made dishonest improvements and they attributed specific roles to the appellants; that the motive, as alleged by the prosecution, has not been proved in this case. Learned counsel for the appellants has finally submitted that the prosecution had miserably failed to prove its case against the appellants beyond the shadow of doubt, thus, this appeal be accepted and the appellants may be acquitted from the charge. 12. On the other hand, the learned Deputy Prosecutor General for the State assis ted by the learned counsel for the complainant have opposed the instant appeal and have submitted that the appellants have specifically been named in the FIR with specific role; that there was no reason for false implication of the appellants; that there is no material conflict between the testimony of the witnesses; that the motive has also been proved against the appellants by the prosecution; that the learned trial court has committed material irregularities and illegalities while awarding life imprisonment by the appellants. Lastly the learned counsel for the complainant has prayed for enhancement of their sentence from life imprisonment to death of the appellants. 13. I have heard the arguments advanced by the learned counsel for the appellants as well as the learned counsel for the complainant assisted by the learned Law Of ficer and have perused the record minutely . 14. The incident in the present case had taken place according to the prosecution on 14.06.201 1 at 6:00 p.m. and the F.I.R. (Exh.PD) was recorded on the oral complaint of the complainant (PW-6) at 7:30 p.m. at the Police Station Saddar , Bhakkar , situated at a distance of 6/7 Kilometers from the place of occurrence. It has been noted that Mst. Hameeda Bibi (PW-6) during her cross-examination deposed that, "Jewan Shah is resident of village Razai Shah. Mureed Kazim is resident of Mumdani village. Both Muhammad Kazim and Jewan Shah who accompanied me at the time of recording FIR reached at the place of occurrence within 15 to 20 minutes after the occurrence. Both the above said persons reached on motorcycle but I cannot tell that they reached at the place of occurrence on one motorcycle or by different motorcycles. I have informed the above-said persons about the occurrence on cell phone. When the above-said persons reached at the place of occurrence, my father had died." The complainant- Mst. Hameedan Bibi (PW-6) also deposed during cross-examination that, "I left my house at about 7:30 p.m. for registration of case. The distance between my house and Police Station Saddar Bhakkar is about 05/06 kilometers. I went to the Police Station on motorcycle rickshaw. PWs Nazir and Meesam Temaar were also with
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me. It took me 15 to 20 minutes in reaching Police Station. Volunteered that I reached at Police Station at 7:30 p.m." This part of her (PW-6) statement does not appear to be correct because this witness deposed that she left her house at 7:30 p.m. and also reached at Police Station at 7:30 p.m. which is not possible. Whereas, Nazir Hussain (PW-7) deposed during cross-examination that, "Mst. Hameedan Bibi complainant left the spot at about 6:30/6:45 p.m. along with Jewan Shah and Kazim Hussain. Jewan Shah and Kazim Hussain may be reached at the spot at about 6:15 p.m." He (PW-7) further deposed during cross-examination that, "It is correct that house of Mureed Kazim situated in Mouza Mumdani is at a distance of 20 kilometers from the place of occurrence. Aforementioned Mureed Kazim is husband of sister of my wife. The house of Jewan Shah is at a distance of 4/5 kilometers from the place of occurrence." From the above-said deposition of the witnesses, it revealed that the complainant (PW 6) took 15 to 20 minutes in reaching the Police Station on motorcycle rickshaw and before leaving the place of occurrence, she called Mureed Kazim (Behnoi) and Syed Jewan Shah, Lumberdar, then she (PW-6) went with them to the Police Station for reporting the incident. This absolutely shows that the F.I.R. (Exh.PD) was registered after consultation and deliberation. There remains no manner of doubt that soon after the incident the complainant (PW-6) had not lodged the F.I.R. (Exh.PD), thus, fatal for prosecution. 15. The entire prosecution case against the appellants-Ijaz Hussain, Raiz Hussain, Rab Nawaz and Aman Ullah rests on the oral evidence of Mst. Hameedan Bibi-the complainant (PW-6) and Nazir Hussain (PW-7) who claimed to be an eye- witnesses to the incident which took place at about 6.00 p.m. on 14.06.201 1 wherein Madah Hussain, the father of the complainant (PW-6) succumbed at the spot due to throttling. The earliest version by the prosecution given in the F.I.R (Exh.PD) was that the accused persons again caught hold of her father after chasing and started giving beating to him, the result whereof complainant's father fell down on the ground and that accused Rab Nawaz caught hold of her father from his legs and remaining accused persons pressed his neck. The earliest version of the prosecution was that the accused persons except accused Rab Nawaz collecti vely pressed the neck of the deceased. The learned counsel for the appellants contended that Mst. Hameedan Bibi-the complainant (PW-6) and Nazir Hussain (PW-7) had made major contradictions and dishonest improvements in the prosecution case and on this count, their testimonies should be rejected as same has no substance. I, therefore, carefully scrutinized the same. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the prosecution case. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety . However , where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. First I would like to refer the evidence of Mst. Hameedan Bibi-the complainant (PW-6) who reiterates that she is posed to be an eye-witness of the alleged incident. Her (PW-6) cross-examination is material, wherein most of the omissions have been brought on record by the defence. I, find it necessary to reproduce herein below the material facts which she (PW-6) had stated before the court, but had not stated in her statement given by her to the police. The contradictions and omissions brought on the record in the evidence of the prosecution witnesses i.e. Mst. Hameedan Bibi-the complainant (PW-6) and Nazir Hussain (PW-7) by the defence, which are reproduced below: Statement of Mst. Hameeda Bibi-the complainant (PW -6) who deposed during cross-examination that, "I have stated before the police that Rab Nawaz accused caught hold of my father from legs, Aman Ullah put his hands on the neck of my father , Riaz accused put his knee on the chest of my father , Ijaz Hussain accused caught hold of my father from his arms and Aman Ullah pressed the neck of my father . Confronted with Ex.PD where it is not so recorded. I have not stated in Ex.PD that Rab Nawaz accuse d caught hold of my father from his legs while all the other accused persons pressed the throat of my father . Confronted with the Ex.PD where all the other accused persons pressed the throat of my father is recorded. I had moved an application for disinterment of body of deceased father for re-post mortem examination. I had myself got dictated that application. I did not dictate to my counsel in the application Ex.PE that Riaz Hussain, Ijaz Hussain and Aman Ullah accused pressed the throat of my father . Confronted with Ex.PE where it is so recorded. I had not narrated the time of occurrence at the time of moving application for disinterment of dead body as 4.00 p.m.Confronted with application Ex.PE where time of occurrence is mentioned as 4.00 p.m. "
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Similar contradictions and omissions are brought on record in the evidence of Nazir Hussain (PW-7), who deposed during cross-examination that, "I have got recorded in my statement before the Police that Aman Ullah accused present in the Court pressed the neck of Madah Hussain deceased. Confronted with Ex.D.C where it is not so recorded. I had got recorded in my statement under section 161 Cr.P.C that Ijaz Hussain accused present in court caught hold the arms of deceased Madah Hussain. Confronted with Ex.D.C where it is not so recorded. I had got recorded in my statement before the police that Riaz Hussain accused pressed his knees upon the chest of Madah Hussain deceased. Confronted with Ex.DC where it is not so recorded." 16. The story regarding specific role of the accused persons by the complainant (PW-6) and the witness (PW-7) is nothing but an improvement. Besides, both prosecution witnesses denied the suggestions that Aqsa Bibi (daughter of Nazir Hussain, (PW-7) was residing with the complainant (PW 6) and she (Aqsa…
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