Full Judgment Text & Judicial Ruling

2021 Y L R 591 [Lahore (Multan Bench)] Before Malik Shahzad Ahmad Khan and Sadiq Mahmud Khurram, JJ MUHAMMAD AJMAL---Appellant Versus The STATE and another---Respondents Criminal Appeal No. 644 and Murder Reference No. 107 of 2015, heard on 14th January, 2020. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Prosecution case was that the accused and his co-accused committed murder of the deceased---Motive behind the occurrence was that the accused was having suspicion that deceased was having illicit relation with his Bhabi (sister-in-law)---Ocular account had been furnished by three witnesses including complainant---Said witnesses had explained their presence at the place of occurrence categorically---During the cross-examination, all the three witnesses remained consistent with regard to the sequence of their journey to the place of occurrence---Said witnesses had fairly succeeded in proving their presence at the spot and witnessing the occurrence---Witnesses were subjected to lengthy cross-examination but the defence had failed to make cracks in their deposition and veracity of their statements---Said witnesses being close relatives of the deceased had no reason to falsely implicate the accused in the commission of offence substituting him, letting off the real culprits---Nothing on record which would indicate substitution of the accused in the case with the real culprit---Accused had not been able to establish any animosity of the complainant or the police for his false involvement in the case---Said three witnesses in a straightforward manner had held the accused responsible for the murder of deceased---Incident was a broad daylight occurrence and because of previous acquaintance of the parties, question of misidentification did not arise---Presence of the witnesses was further proved as according to the inquest report it were the eye-witnesses who were mentioned in the relevant column of the said report being present at the place of occurrence at the time of the preparation of the inquest report by Investigating Officer---Column No. 8 of the inquest report showed that at the time of preparation of the same, the eyes of the deceased were closed and had the deceased met his death in absence of the witnesses, his eyes would not have been found closed---Closed eyes of the deceased further proved the prosecution's version regarding the presence of the witnesses at the place and time of occurrence---Accused had given serious blows on the head of the deceased with a piece of brick---Accused intended or knew himself that such blows were likely to fracture the skull of the victim and he must be taken to have known that he was likely to cause the death of victim and was therefore, guilty of qatl-i-amd---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Evidence of recovery of blood stained piece of a brick from the possession of the accused had been disbelieved and the prosecution had alleged a specific motive in the present case but had failed to prove the same, which constituted mitigating circumstance---As to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of deceased was not determinable---Death sentence awarded to the accused was harsh, a sentence of the accused as awarded by the Trial Court was maintained but the death sentence awarded to the accused under S.302(b), P.P.C. was altered to imprisonment for life---Appeal was dismissed with said modification. Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Ahmad Nawaz and another v. The State 2011 SCMR 593 and Mst. Nazia Anwar v. The State and others 2018 SCMR 911 rel. (b) Criminal trial--- ----Witness---Related witness---Evidence of related witnesses---Reliance---Scope---Mere relationship of the prosecution witnesses with the deceased and inter-se is not sufficient to discredit their testimony. Ijaz Ahmad v. The State 2009 SCMR 99 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about one hour and twenty minutes in lodging the FIR---Scope---Prosecution case was that the accused and co-accused committed murder of the deceased---In the present case, the occurrence took place in the broad-daylight at about 2.25 p.m., which was reported by the complainant at 3.35 p.m. and whose statement was recorded by the Investigating Officer---On the basis of the recorded statement of the complainant, formal FIR was registered at 3.45 p.m.---Facts remained that the police station was at a distance of six kilometres from the place of occurrence---First Information Report was got lodged within a short duration and the complainant not only named the accused, but also mentioned each and every minor as well as material fact of the incident therein, which of course excluded the possibility of deliberation or consultation regarding false implication of the accused in the case---Appeal was dismissed with modification in sentence. [p. 600] E Muhammad Waris v. The State 2008 SCMR 784 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical and ocular evidence---Corroboration---Scope---Prosecution case was that the accused and his co-accused committed murder of the deceased---In the present case, the medical evidence produced by the prosecution proved that the deceased had received injuries with a blunt weapon on the vital part of his body and he succumbed to the said injuries---Medical evidence fully supported the ocular account---Probable time between death and post-mortem as noted by the doctor coincided with the ocular account---Post-mortem examination of the dead body of deceased had been conducted quite promptly leaving no room for deliberations or fabrication of a story---Appeal was dismissed with modification in sentence. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime weapon from the accused---Delay in dispatch of recovered weapon for analysis---Effect---Prosecution case was that the accused and his co-accused committed murder of the deceased---Record showed that blood stained piece of a brick was recovered from the accused---Said recovery could not be relied upon as the fact remained that the occurrence in the present case had taken place on 15.10.2014, whereas the alleged recovery had been effected on 31.10.2014---Said blood-stained piece of a brick was deposited in the office of Forensic Science Agency on 05.11.2014 i.e. after 21 days of the occurrence---Report of Forensic Science Agency regarding forensic serological examination of the said blood stained piece of a brick showing the presence of human blood on the said brick was dated 12.12.2014---Said fact showed that the said article was examined for the presence of human blood and the report of Forensic Science Agency was prepared after one month and twenty seven days of the occurrence---During such a long period, the blood available on the piece of brick, if any, would have disintegrated---Not possible to believe that the blood had not disintegrated by then and therefore the said recovery of the blood stained piece of a brick could not be used as incriminating evidence against the appellant---Appeal was dismissed with modification in sentence. Faisal Mehmood v. The State 2016 SCMR 2138 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive was not proved---Effect---Prosecution case was that the accused and his co-accused committed murder of the deceased---Motive of the occurrence was that the accused had suspicion about the illicit relations of his sister-in-law with the deceased---No further details of said motive were mentioned in the oral statement of complainant---Haunting silence with regard to the minutiae of motive alleged---No independent witness was produced by the prosecution to prove the motive as alleged---Investigating Officer of the case did not join the sister-in-law of the accused in the investigation of the case---Prosecution did not produce the said sister-in-law of accused in support of the alleged motive before the Trial Court---Circumstances concluded that prosecution remained failed to prove the motive as alleged---Appeal was dismissed with modification in sentence. Muhammad Asif v. The State 2008 SCMR 1001 rel. (g) Penal Code (XLV of 1860)--- ----S. 302--- Qatl-i-amd--- Sentence, quantum of--- Scope--- Quantum of sentence required utmost attention and thoughtfulness on the part of the court to bring the charge home to the accused for the award of normal penalty of death. Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 rel. (h) Penal Code (XLV of 1860)--- ----S. 302(b)--- Qatl-i-amd--- Motive---Scope---If the prosecution avows a motive but failed to prove the same then such failure on the part of prosecution might have reacted against a sentence of death passed against a convict on the charge of murder. Nawab Ali v. The State 2019 SCMR 2009; Muhammad Akram alias Akrai v. The State 2019 SCMR 610; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; Muhammad Mumtaz v. The State and another 2012 SCMR 267; Muhammad Imran alias Asif v. The State 2013 SCMR 782; Sabir Hussain alias Sabri v. The State 2013 SCMR 1554; Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602; Naveed alias Needu and others v. The State and others 2014 SCMR 1464; Muhammad Nadeem Waqas and another v. The State 2014 SCMR 1658; Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035 and Qaddan and others v. The State 2017 SCMR 148 rel. Muhammad Usman Sharif Khosa and Javed Iqbal Bhatti for Appellant. Ch. Muhammad Akbar, Deputy Prosecutor General for the State. Ch. Faqir Muhammad for the Complainant. Date of hearing: 14th January, 2020. JUDGMENT SADIQ MAHMUD KHURRAM, J.---The appellant namely Muhammad Ajmal son of Muhammad Bakhsh was tried by the learned Additional Sessions Judge, Rajanpur along with his co-accused namely Nawaz son of Shakir and Muhammad Afzal son of Muhammad Bakhsh ( both since acquitted) in case instituted upon the private complaint titled "Allah Bakhsh v. Nawaz and 2 others" (relating to FIR No. 251 of 2014 dated 15.10.2014 registered at Police Station Dajjal District Rajanpur in respect of offences under sections 302 and 34, P.P.C.) for committing the Qatl-i-Amd of Qadir Bakhsh son of Allah Ditta (deceased). The learned trial court vide judgment dated 30.11.2015, convicted Muhammad Ajmal son of Muhammad Bakhsh (convict) and sentenced him as infra: Muhammad Ajmal son of Muhammad Bakhsh: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Qadir Bakhsh son of Allah Ditta (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. The co-accused of the appellant namely Nawaz son of Shakir and Muhammad Afzal son of Muhammad Bakhsh were however acquitted by the learned trial court. 2. Feeling aggrieved, Muhammad Ajmal son of Muhammad Bakhsh (convict) lodged Criminal Appeal No.644 of 2015 against his conviction and sentence. The learned trial court submitted Murder Reference No.107 of 2015 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Muhammad Ajmal son of Muhammad Bakhsh. We intend to dispose of the Criminal Appeal No. 644 of 2015 and Murder Reference No.107 of 2015 through this single judgment. 3. Precisely the facts necessary, as divulged in the statement of Allah Bakhsh son of Ghulam Haider (PW-4) are as under:- ""On 15.10.2014 I proceed from my home to the house of Ghulam Hussain son of Mewa Caste Jhamat in connection of my personal work. On reaching there it saw that Ghulam Hussain and Akbar son of Ramzan were already sitting there after my reaching in the said Bathic Qadir Bakhsh (deceased) arrived. We remained sitting there. Ghulam Hussain went the house and brought meal which we took. We exchange our views. Thereafter Qadir Bakhsh (deceased) told that he had to go to adda Qasab in connection with his own work and he proceeded there from. I, Ghulam Hussain and Akbar went to Dajal on a motorcycle. When we cross adda Muhammad road, Nawab, Afzal and Ajmal while boarding on a motorcycle crossed us. When they reached near the tubale of Shamla Khosa they stopped Qadir Bakhsh (deceased) after stopping their motorcycle. They alighted from the motorcycle Muhammad Afzal took Qadir Bakhsh in his caught hold/ jhappah. Ajmad (sic) took a bat of brick and gave it on the middle of the head of Qadir Bakhsh (deceased) again he took the same bat and give it on the left side of back of head of Qadir Bakhsh (deceased). I, Ghulam Hussain and Akbar also reached near Qadir Bakhsh (deceased) and witnessed the occurrence as the occurrence was a day light. On seeing us reaching the spot the above said accused persons left Qadir Bakhsh (deceased) and pushed him on the ground and fled away towards Adda Qasab. On reaching us he was pool of blood. In the mean time a Taxi car came there we requested to driver of the said car to take us to Dajal. On reaching Dajal Hospital Docotor checked the injured Qadir Bakhsh (deceased, medical officer declared him to be dead. In the mean time Thanedar came there police officials. Thanedar asked about the previous enmity we told to Thanedar that Ajmal accused was having suspicion that Qadir Bakhsh (deceased) was having illicit relation with Abida Bibi sister in law (Bhabi. We have given safai regarding innocence of Qadir Bakhsh (deceased) in respect of the above matter. But the accused persons did not accept it and committed murder of Qadir Bakhsh (deceased). Accused persons with common intention commit the murder of Qadir Bakhsh (deceased). Thanedar recorded my statement Ex.PC, read over to me and I thumb marked the same in token of its correctness. I proceeded towards place of occurrence with Thanedar where Thanedar took into possession blood stained earth from the place occurred after that I proceeded towards Jampur thereafter post mortem examination I took the dead body at my home for funeral prayer. During the investigation the police with mala fide intention after getting bribery police declared the accused persons namely Afzal and Nawab as innocent. All accused persons are real culprits. They have committed Qatl-i-amd of Qadir Bakhsh (deceased). Then I went in the office of my Advocate narrated him about the occurrence who drafted the complaint Ex-PC, which was read over to me I mark thumb impression on the same in token of correctness." 4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Allah Bakhsh v. Nawaz and 2 others" (relating to FIR No. 251 of 2014 dated 15.10.2014 registered at Police Station Dajjal District Rajanpur in respect of offences under sections 302 and 34, P.P.C.) for committing the Qatl-i-Amd of Qadir Bakhsh son of Allah Ditta (deceased). The learned trial court framed the charge against the accused on 04.05.2015, to which the appellant and his co-accused pleaded not guilty and claimed trial. 5. The complainant in order to prove its case got recorded statements of as many as eight witnesses. The ocular account of the case was furnished by Allah Bakhsh (PW. 4), Ghulam Akbar (PW. 5) and Ghulam Hussain (PW-6). Rana Hasnanin Abbas, Halqa Patwari, (PW-1) prepared the scaled site plan of the place of occurrence (Exh.PA). Muhammad Bilal 1454/C, (PW-2) stated that on 19.10.2014, he took one sealed parcel said to contain blood stained earth to the office of Punjab Forensic Science Agency, Lahore and deposited the same there and on 04.11.2014 he took a sealed parcel said to contain a piece of brick to the office of Punjab Forensic Science Agency, Lahore and deposited the same there intact. Muhammad Ramzan 547/C (PW-3) stated that on 15.10.2014, he escorted the dead body of the deceased for its post mortem examination and also received the last worn cloth of the deceased. Muhammad Ismail (PW-7) witnessed the taking into possession the last worn clothes of the deceased through recovery memo (Exh.PB). Muhammad Hussain (PW-8) identified the dead body of the deceased and also witnessed the taking into possession the last worn clothes of the deceased through recovery memo (Exh.PB). The complainant gave up witnesses Aziz Ahmad as being unnecessary vide his statement recorded on 11.11.2015. The learned trial court also examined seven witnesses as Court Witnesses. Muhammad Jamal 630/C (CW-1) stated that on 31.10.2014, the appellant led to the recovery of a blood stained piece of a brick (Exh.P4) which was taken into possession through recovery memo (Exh.PF). Rasheed Ahmad 325/C (CW-2) stated that on 20.10.2014, the Investigating Officer took into possession the Call Data through recovery memo (Exh.PG) and on 28.10.2014 the Manager of Khushhali Bank handed over a CD containing CCTV footage which the Investigating Officer took into possession through recovery memo (Exh.PH). He further stated that on 31.10.2014, the appellant led to the recovery of a blood stained piece of a brick (Exh.P4) which was taken into possession through recovery memo (Exh.PF). Aman Ullah/HC (CW-3) stated that on 31.10.2014, the Investigating Officer handed over to him one sealed parcel said to contain a blood stained piece of a brick which he on 04.11.2014 handed over to Muhammad Bilal 1454/C, (PW-2) for its onward transmission to Punjab Forensic Science Agency, Lahore. Ayyaz Ahmad, SI (CW-5) recorded the formal FIR (Exh.PC/1). Mr. Farhan Elahi, Manager Khushali Bank, (CW-7) stated that on 15.10.2014 an amount of Rs. 26028/- was deposited in the bank on behalf of Muhammad Afzal (co-accused since acquitted) and on 27.10.2014, the Investigating Officer took into possession a CD (Exh.P6) containing CCTV footage. Muhammad Saidq, SI (CW-6) investigated the case from 15.10.2014 till 11.02.2015 ,arrested the appellant on 26.10.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. On 20.11.2015, the complainant closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency, Lahore (Exh.PN) relating to the earth taken into possession and the report of Punjab Forensic Science Agency, Lahore (Exh.PO) relating to the blood stained piece of brick. 6. The prosecution got examined Dr. Muhammad Irfan (CW-4), who on 15.10.2014 was posted as Medical Officer at THQ Hospital, Jampur and on the same day conducted the postmortem examination of Qadir Bakhsh son of Allah Ditta (deceased). Dr. Muhammad Irfan (CW-4), on examining the dead body of Qadir Bakhsh son of Allah Ditta (deceased) observed as under: "Following injuries were noted:- 1. Lacerated wound 5x3 c.m on the right side of skull into bone exposed 8 c,n (sic) above the right ear, clinically fractured of the skull. 2. Lacerated wound of 2x2 c.m on the right side of back of the skull and into bone exposed. 3. A bruise 3x3 cm on the medial side just below the right knee joint. 4. A bruise of 2x2 on the right knee joint, a bruse of 2x2 c.m on the back of left hand. 5. A bruise of 3x3 c.m above left eye. On dissection of injury No;.1 there is fracture of partial bone along with fractured of the frontal bone. On dissection of injury No.2 there is fracture of the occipital bone. In my opinion all injuries were ante mortem caused by blunt edged weapon causing fracture of the skull. Death occurred due injuries to the vital organ brain, caused by injury Nos.1 and 2 leading to haemorrhage and shock and death which is sufficient to cause death in the ordinary course of nature." 7. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Ajmal son of Muhammad Bakhsh under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied as under:- "I am innocent. Infact, the alleged occurrence had not taken place. Actually it was a road side accident in which the deceased Qadir Bakhsh fell down from the motorcycle and died. In the year 2014, the deceased got registered a case FIR No. 169/14 Police Station Saddar Jampur in which the complainant was witness. I was sent to the judicial lock up. In that case compromise was effected and five lac rupees was fixed as Chatti/compound money, out of them four lac rupees were paid to the complainant/deceased but one lac was out standing. Complainant appeared before the court and compounded the offence and I was released in that case. After my release from the jail. Complainant /deceased and complainant of this case demanded from me the out stainding (sic) amount one lac which I could not pay. In the meanwhile the deceased met an road accident and died due to that accident. The complainant due to previous enmity and getting the previous out standing one lac Chati and further getting Chatti, I was falsely involved in this case which was actually a road side accident. Story of the complainant of this case is baseless, false, concocted one. I am innocent." The appellant namely Muhammad Ajmal son of Muhammad Bakhsh opted not to get himself examined under section 340(2), Cr.P.C however produced certified copy of post arrest bail petition titled as "Muhammad Ajmal v. State" as Ex.D-G, certified copy of affidavit tendered by Qadir Bux, deceased of this case and injured/complainant of case FIR No. 169/14 Police Station Saddar Jampur as Ex.D-H, and order dated 08.09.2014 passed by Syed Muhammad Azam Javed, Magistrate Section 30, Jampur as Ex.D-1, in his defence. 8. On the conclusion of the trial, the learned Additional Sessions Judge, Rajanpur convicted and sentenced the appellant as referred to above. 9. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false. That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant in support of this appeal, further contends that the story of the prosecution mentioned in the FIR, on the face of it is highly improbable and the reason assigned by the complainant and the eye-witnesses for being present at the place of occurrence is without any justification. He further contended that the statements of Allah Bakhsh (PW.4), Ghulam Akbar (PW.5) and Ghulam Hussain (PW-6) were not worthy of reliance. The learned counsel for the appellant further submitted that the learned trial court while disbelieving the same evidence has acquitted the co-accused of the appellant namely Nawaz son of Shakir and Muhammad Afzal son of Muhammad Bakhsh and the conviction awarded to appellant on the basis of same evidence is not justified. He also argued that the recovery was full of procedural defects , of no legal worth and value and result of fake proceedings. The learned counsel for the appellant has also argued that the use of a piece of brick by the appellant for causing injuries reveals that the appellant had no intention to commit Qatl-i-Amd of the deceased and submitted that the facts of the case, even if accepted, revealed that the appellant had committed an offence of Qatl Shibih-i-Amd as defined by section 315, P.P.C. and made punishable under section 316, P.P.C. He finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt. 10. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned counsel further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Allah Bakhsh (PW. 4), Ghulam Akbar (PW. 5) and Ghulam Hussain (PW-6). They further argued that the recovery from the appellant also corroborated the ocular account. They contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, they prayed for the rejection of appeal. 11. We have heard the learned counsel for the appellant and learned Deputy Prosecutor General along with the learned counsel for the complainant and with their…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

• Browse all judgments from Lahore High Court
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant