Full Judgment Text & Judicial Ruling

2016 P Cr. L J Note 91 [Lahore (Multan Bench)] Before Muhammad Tariq Abbasi and James Joseph, JJ BARISH ALI and others---Appellants Versus The STATE and another---Respondents Criminal Appeals Nos. 517, 622, 555, 621, Murder Reference No. 158 and Criminal Revision No. 246 of 2009, heard on 28th October, 2014. Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Sentence, reduction in---FIR, having been lodged promptly, possibility of substitution of accused; stood eliminated, and chance of entering into deliberation and consultation with others to involve accused persons, was excluded---All material details of the occurrence had been elaboratory explained in the FIR---Complainant was put to the test of lengthy cross-examination, but nothing favourable to the defence could be extracted---Complainant remained firm on his stance as mentioned in his statement, as well as in FIR---No suggestion was put to him from the defence side regarding the time, place and mode of occurrence---Presence of the complainant at the relevant time and place of occurrence, was sufficiently proved---Prosecution witness, who was also present with the complainant at the relevant time at the scene of occurrence also reiterated the same facts---Said witness was also put to the test of lengthy cross-examination, but he remained firm on all material points, i.e., time, place and mode of occurrence---Defence side remained unable to extract anything favourbale to the opportunity---Deposition made by said witness, was quite intense with deposition of the complainant---Motive set forth by the prosecution, was shrouded in mystery---Occurrence having taken place in broad daylight, there was no question of wrong identity of accused persons---No ill-will existed that prosecution witnesses would falsely implicate accused persons in the occurrence; their evidence, could not be brushed aside merely because prosecution witnesses were inter se related and related to the deceased---Evidence of said prosecution witnesses, was natural, which was worthy of credence and reliance---Prosecution story was fully corroborated by the medical evidence---Place of recovery of weapon of offence on the pointation of accused persons, was not exclusively owned by accused persons---Said recovery was highly doubtful, in circumstances---Empties were dispatched about two days after the same were recovered---No explanation in that regard had been given by the prosecution for retaining said empties for such a long time---Pistols, allegedly recovered, were also retained for a considerable long time---No explanation was as to why said pistols were retained by the prosecution---Such eventualities had made report of Forensic Science Laboratory, regarding matching of the empties with the pistol, of no consequence---Version of the prosecution, was corroborated by the result of investigation---Sufficient incriminating evidence, was available on the record to prove the prosecution case, against accused persons--- Defence taken by accused persons, was nothing, but a simpliciter denial, which was discarded---Some mitigating circumstances, existed in favour of accused persons, which were, that, no specific injury was attributed to any of the accused persons, which proved fatal and became the cause of death of deceased; that evidence of recovery of weapon of offence was not believed; that motive set up by the prosecution, was not believed and that it was not determinable as to what the real cause of occurrence and as to what actually happened immediately before the occurrence, which resulted into incident---Death sentence awarded to accused, was harsh---Accused was entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence---Conviction of said accused, was maintained under S.302(b), P.P.C., but his sentence was altered from death to life imprisonment---Sentence of life imprisonment to co-accused, was maintained and upheld, with the modification in the sentence of main accused. [Paras. 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 & 28 of the Judgment] Elahi Bakhsh v. Rab Nawaz and others 2002 SCMR 1842; Ali Sher and others v. The State 2008 SCMR 707; Nazer Abbas v. The State 2012 YLR 2748; Hasil Khan v. The State 2012 SCMR 1936 and Nawaz Khan v. Ghulam Shabbir and The State 1995 SCMR 1007 rel. Mst. Sabeeha v. Ibrar and others 2012 SCMR 74; Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 ref. Syed Badar Raza Gillani for Appellants. Mahar Ahmad Raza for the Complainant. Malik Riaz Ahmad Saghla, DPG for the State. Date of hearing: 28th October, 2014. JUDGMENT JAMES JOSEPH, J.---This single judgment shall dispose of Criminal Appeals Nos. 517 of 2009 and 622/2009 filed by Barish Ali appellant, Criminal Appeals No. 555 of 2009 Criminal Appeal No. 621 of 2009 filed by Muhammad Arshad appellant, Criminal Revision No.246 of 2009 filed by Muhammad Iqbal and Murder Reference No.158 of 2009 sent by the learned trial Court for confirmation of the death sentence of appellant Barish Ali son of Muhammad Tufail or otherwise as all above captioned matters have arisen out of one and the same judgment dated 13.07.2009 passed by learned Additional Sessions Judge Lodhran, wherby the appellants Barish Ali and Muhammad Arshad were convicted and sentenced in case FIR No. 256/2006 dated 15.09.2006 offence under sections 302/109/34, P.P.C. registered at Police Station Gailewal District Lodhran as under:- (1) Barish Ali son of Muhammad Tufail was convicted under section 302(b), P.P.C. and sentenced to death. (2) Muhammad Arshad son of Muhammad Tufail was convicted under section 302(b), P.P.C. and sentenced to imprisonment of life with a fine of 100,000/- which shall be recoverable from the convict as land revenue. Benefit of section 382-B, Cr.P.C. was also extended to him". 2. Briefly the prosecution story, as put forth by complainant Muhammad Iqbal (PW-1) through his statement Exh PA is as under:- "I am cultivator. Today I along with Wasil Din and Ghulam Mustafa my brothers were coming to home after meeting with our relative. At about 10.00 a.m. when we reached near Mor Chah Qual-wala, my son Tahir Mehmood had been transporting a bag of fertilizer on motorcycle No. 3459/KWB towards the house. Barish Ali armed with pistol .30 bore and Muhammad Arshad armed with .30 bore pistol waylaid of Tahir Mehmood and raised lalkara. Barish Ali made a fire of his pistol which landed on his right leg. My son left the motorcycle and tried to run. In our view, Barish Ali made another fire shot which landed on his left leg. Muhammad Arshad also made two successive fires which landed on left and right legs of Tahir Mehmood who fell on the ground, Barish Ali and Muhammad Arshad gave brick bats on my son who sustained injuries on his entire body. Barish All also put out dagger from the Nefa of his shalwar and inflicted injuries on the right thigh of my son. Muhammad Arshad with his teeth bite on his back. Upon our hue and cry, many persons gathered there. Accused persons while brandishing their weapons, fled away on their motorcycle. We attended Tahir Mehmood who was smeared with blood and shifted for medical treatment but in the way to hospital, my son succumbed to the injuries. Motive behind the occurrence was that Tahir Mehmood, my son, got registered a criminal case against Barish Ali etc. vide FIR No.126/2006 under sections 337-A(i)/337-A(ii)/337-L(2)/34, P.P.C. P.S. Gellaywal. Respectable of the vicinity arranged compromise in that criminal case but Barish Ali and Muhammad Arshad, due to previous enmity and revenge, in furtherance of their common intention, at the instigation of their father Muhammad Tufail, committed the murder of Tahir Mehmood. Proceedings be initiated." Upon the said statement of the complainant, formal FIR (Exh PA/1) was recorded by Abdul Ghaffar S.E. (PW-5). 3. After the registration of the case, on completion of investigation, Report under section 173, Cr.P.C. was submitted for trial before the trial Court. 4. Learned trial Court, after observing all legal formalities provided under the Criminal Procedure Code, framed the charge on 05.03.2007 against Barish Ali, Muhammad Arshad (present appellants) and Muhammad Tufail under sections 302/109 read with section 34, P.P.C., to which they pleaded not guilty and prosecution evidence was summoned. 5. The prosecution examined Muhammad Iqbal son of Sardar complainant PW-1 who reiterated the same facts as mentioned by him in his statement Exh PA. Wasil Din son of Sardar PW-2, the alleged eye-witness, corroborated the statement of PW-1, Tariq Mehmood son of Muhammad Iqbal PW-3 identified the dead body of the deceased at the time of post mortem examination. He also witnessed of recovery of last worn clothes of the deceased which were taken into possession by the IO vide memo Exh PK. Muhammad Salem son of Muhammad Wasil PW-4 deposed regarding the abetment of Muhammad Tufail accused with his sons (appellants/convicts). Abdul Ghaffar SI PW-5 chalked out formal FIR Exh PA/1 on the basis of statement of complainant Exh PA without any addition or omission on his part. Muhammad Shafi 128/HC PW-7 being Moharrir received the case properties/sealed parcels from the IO of this case and kept the same in the Malkhana in safe custody. Muhammad Tufail S.I. PW-8 is the Investigating Officer of this case who deposed regarding the steps taken by him during the investigation of the case. Rab Nawaz 520/C PW-9 along with Tufail escorted the dead body of the deceased for post mortem from DHQ Hospital Lodhran. This witness also took the sealed parcels from the Moharrir of the Police station and deposited the same in the relevant offices intact. Sajjad Ahmad Patwari Halqa (PW-10) prepared scaled site plans of the place of occurrence Exh PP and Exh PP/1. 6. Medical evidence was furnished by Dr. Zafar Iqbal PW-6 who found the following injuries on the dead body of the deceased. 1. Lacerated wound l x 1 c.m., circular (fire arm wound of entry) present on back and medial side of upper part of left thigh (just below the lower and medial part of left buttock) Margins are inverted and black. It is through and through. 2. Lacerated wound (fire arm wound of exit) 1.5 x 1.5 cm circular present on enterio lateral aspect of left thigh. Margins are everted and irregular. It is 18 cm below iliac crest. 3. Lacerated wound 3 x 1.5 cm muscle deep present on front of lower part of left thigh. 10 cm above the left knee joint. 4. Lacerated wound (fire arm wound of entry) 1 x 1 cm circular margins are inverted and black, present on upper and posterior aspect of left leg 4 cm below the left knee joint. It is through and through. 5. Lacerated wound (fire arm wound of exit) 1.5 x 1.5 cm, margins are everted, irregular, present on upper and posterior aspect of left leg, 5 cm below left knee joint. 6. Abrasion measuring 3 x 3 cm present on medial side of right lower leg, 6 cm above of right ankle joint. 7. A lacerated wound (fire arm wound of entry) 1 x 1 cm circular margins were inverted present on medial aspect of right leg 15 cm below left knee joint. It is through and through. 8. A lacerated wound (fire arm wound of exit) 2 x 2 cm circular present on enterio lateral aspect of right leg, 15 cm below the right knee joint margins are inverted and irregular. 9. Lacerated wound (fire arm wound of entry) 1.5 x 1.5 cm present on anterio lateral aspect or right leg 11 c.m. below right knee joint margins are inverted and black. 10. A lacerated wound (fire arm wound of exit) measuring 4 x 2 cm present on anterio lateral aspect of right leg 16 cm below the right knee joint. Muscles were ruptured bone was exposed. 11. Incised wound 2 x 1 cm muscle deep present on posterior aspect of right thigh 8 cm above right knee joint. 12. A bruise 1.5 x 1 cm bluish black present on front of left upper arm 3 cm above left elbow joint. 13. A bruise bluish black in colour 4 x 0.5 cm present on front and left side of neck. 14. A bruise black in colour 7 x 6 cm present on back and upper part of right shoulder. 15. Impression of teeth bite (10 in number) with bruise in curved shape, present on back of right chest, just below the right scapula. In the area of 3 x 4 cm. It is black in colour. In his opinion, the cause of death in this case was haemorrhage and shock due to injuries Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 collectively to cause death in ordinary course of nature. All injuries were ante-mortem. Injuries Nos. 1, 2, 4, 5, 7, 8, 9, 10 were caused by fire arm, injury No.11 was caused by sharp edged weapon while rest injuries were caused by blunt weapon. Probable time between injuries and death between half hour to one hour and between death and post mortem was about 4-1/2 hours. 7. Learned Deputy District Public Prosecutor closed the prosecution case on 26.03.2009 after tendering certain reports in prosecution evidence. 8. On the other hand, statements of the appellants and co-accused were recorded under section 342, Cr.P.C. who refuted the allegations so leveled against them in prosecution evidence. They opted to produce defence evidence as well as also opted to appear as a witness under section 340(2), Cr.P.C. 9. The appellants tendered in their defence evidence certain documents i.e. Exh DA to Exh D-G, and closed their evidence, however, they did not appear in witness box as required under section 340(2) of Cr.P.C. 10. After conclusion of the trial, learned trial court convicted Barish Ali and Arshad Ali appellants, with above stated sentence through judgment dated 13.07.2009, while co-accused Muhammad Tufail was acquitted by giving him the benefit of doubt. Hence, these appeals and revision petition and murder reference. 11. It is contended by learned counsel for the appellants that the case against the appellants is false; that appellants has no motive to commit the present occurrence; that prosecution evidence is full of contradictions and discrepancies; that no specific injury is attributed to the appellants; that the judgment passed by the learned trial court is based on surmises and conjectures and is the result of misreading and non-reading of the evidence produced by the prosecution. Lastly it is prayed that by accepting the appeals filed by the appellants, they may graciously be acquitted of the charge. 12. Conversely learned Deputy Prosecutor General has vehemently controverted the arguments advanced by learned counsel for the appellants while maintaining that it is a promptly lodged FIR wherein the appellants are nominated with specific role of causing injuries on the person of the deceased; that by producing reliable, trust worthy and confidence inspiring evidence, the prosecution has fully proved the charge against the appellants; that the judgment passed by the learned trial court is based on settled principle of law and there is no misreading or non-reading of evidence on the file. Lastly submits that the judgment passed by the learned trial court does not call for any interference and hence, prayed for the dismissal of the appeals filed by the appellants. 13. We have heard the arguments and perused the record. 14. The details of prosecution story has already been given in the preceding paragraphs of this judgment, therefore, there is no need to repeat the same, however, according to the prosecution story as unfolded in the statement of Muhammad Iqbal complainant Exh-PA on the basis of which formal FIR Exh PA/1 was recorded, the occurrence in the present case took place at 10.00 a.m. on 15.09.2006 and the matter was reported to the police at 12.30 p.m. (day time) on the same day within two hours and 30 minutes. The distance between the place of occurrence and the police station is 06 k.m. and to our mind in remote areas where there is no proper facility of transport this consumption of time does not point towards any deliberation or consultation on the part of the complainant. As such the FIR was promptly lodged against the appellants and possibility of substitution of the accused/appellants stands eliminated as FIR was registered without any unnecessary loss of time within two hour and 30 minutes. So chance of entering into deliberation and consultation with others to involve the appellants is excluded and all the material details of the occurrence have been elaborately explained in the FIR. 15. The complainant Muhammad Iqbal while appearing as (PW-1) reiterated almost the same facts as mentioned in his statement Exh PA. He was put to the test of lengthy cross-examination but nothing favourable to the defence could be extracted as PW-1 remained firm on his stance as mentioned in his statement as well as in FIR and even no suggestion was put to him from the defence side regarding the time. place and mode of occurrence. In response to a question put to him during cross-examination from the defence side, the PW (complainant) has categorically stated that: "When Barish Ali and Arshad Ali accused raised lalkara, we were at a distance of 5/7 Qadam from the accused. When accused Barish Ali made fire shot we were at a distance of half foot from the deceased." In another question put to him by the defence side the PW-1 stated that: "Barish Ali and Arshad Ali accused were wearing clothes of white colour at the time of occurrence." Again while answering to a question put to him by defence side PW-1 deposed as follows:- "When Barish Ali accused made first fire, Tahir Mehmood deceased was sitting on motorcycle. When Barish Ali accused made fire he was standing on the right side of deceased Tahir Mehmood. When Barish Ali accused made fire Tahir Mehmood deceased stopped his motorcycle due to speed breaker." PW-1 again deposed by giving the detail of occurrence on a question being asked by the learned defence counsel as follows:- "Barish Ali accused made his second fire-shot at the deceased when he was at a distance of half foot from the deceased." While answering to a question put to him by defence side PW-1 (complainant) deposed as follows:- "Barish accused gave dagger blow to the deceased after the two fires of Arshad Ali accused. Arshad Ali and Barish Ali made their fires to the deceased while they were in standing position." No suggestion was ever put to PW-1 that he was not present at the relevant time at the place of occurrence. In another question put to him from the defence side the PW-1 stated that: "The pieces of bricks which were used by Barish and Arshad accused for causing injuries to Tahir Mehmood were present on the road side." The above said narration made by the PW-1 complainant eliminated the false identification of the appellants at the time and place of occurrence and clearly reflects that he was present at the relevant time at the place of occurrence along with his deceased son, therefore, we hold that the presence of PW-1 (complainant) at the relevant time and place of occurrence is sufficiently proved. 16. Wasil Din son of Sardar (PW-2), who was also present with the complainant at the relevant time at the scene of occurrence, also reiterated the same facts. He was also put to the test of lengthy cross-examination but he also remained firm on all material points i.e. time, place and mode of occurrence. The defence side remained unable to extract anything favourable to the appellants. He also stated that he was present at the time and place of occurrence and in his presence the IO took into possession blood stained earth, crime empties P-1 to P-4, made them into sealed parcel. The IO also took into possession one bullet of .30 bore pistol from the place of occurrence and two pieces of bricks P-6 and P-7 in his presence. Motor cycle CD-70 KWB-3459 owned by Tahir Mehmood along with a bag of fertilizer was also took into possession by the IO in his presence. In response to a question put to him from defence side he stated as under:- "Accused Barish and Arshad were standing at a morr on foot. They were standing on the road side. When we saw the accused persons they were armed with pistols. Motor cycle of the accused persons was standing besides them." In response to another question put to him from defence side PW-2 stated that:- "When Barish Ali accused made fire upon Tahir Mehmood deceased, we were at the distance of 2/3 karam from the deceased Tahir. Barish Ali accused made first fire which hit Tahir on leg. Barish Ali accused made his second fire after his first fire within no time. When Tahir Mehmood sustained two fires from Barish Ali he jell down on the metal road. Barish Ali accused caused injuries on the person of deceased with dagger." In another question put to him by the defence side, he aswered as follows:- "After the fire of Barish accused within five seconds Arshad Ali accused made fires to the deceased. Arshad bit upon the back of the deceased and thereafter they fled away from the place of occurrence. Both the accused caused injuries with the pieces of bricks prior to the biting of accused Arshad." The deposition made by this PW clearly indicates that he was present at the relevant time at the place of occurrence as all the detail of occurrence and the manner in which the occurrence was committed by the appellants has been mentioned by the PWs which is quite inline with the deposition made by PW-1 and the whole occurrence was witnessed by him, therefore, we hold that the presence of PW-2 is also not doubtful and by giving the details of occurrence, the PW-2 has explained and proved his presence satisfactorily at the spot. 17. The motive behind the occurrence is previous criminal case/litigation between the parties. The deceased got lodged a criminal case under section 337-A(ii), P.P.C. against Barish Ali and others in which the respectable of the area got effected compromise between son of the complainant and Barish Ali etc. The same fact has been deposed by PW-2 during a question put to him from defence side as under:- "In the previous criminal case which was pending between accused party and us, compromise was effected between the parties". It is clear from the above said deposition that if the above said matter was compromised, then no other reason has been brought on the file by the prosecution against the appellants to commit the present occurrence, therefore, to our mind the motive set forth by the prosecution is shrouded in mystery. 18. The present occurrence took place in broad day light, therefore, there is no question of wrong identity of the accused/appellants in the present case. No question was put to the PW-2 regarding his non availability at the scene of occurrence and witnessing the same, therefore, we do not see any ill-will of the PWs to falsely implicate the appellants in the present occurrence. Since no ill-will of false implication is observed therefore, their evidence cannot be brushed aside merely by suggesting that the PWs are inter se related and inter se related to deceased also. In this regard reliance is placed upon the case law reported in "Elahi Bakhsh v. Rab Nawaz and others" (2002 SCMR 1842) in which august Supreme Court of Pakistan has held that:- "Let we mention here at the outset that prosecution has proved the case beyond shadow of doubt by producing worthy of credence and irrefutable evidence. The statement of Elahi Bakhsh PW-7 duly corroborated by Abdur Razzaq PW-10 could not be brushed aside on flimsy grounds. The above named by witnesses stood firm to the test of cross-examination and nothing advantageous could be elicited in spite of searching questions. Though Elahi Bakhsh PW-7 had shown some reluctance to admit the inter se relationship with the petitioner but on this score alone his version which otherwise is confidence-inspiring cannot be discarded. Insofar as his absence from the place of occurrence is concerned as per the statement of Muhammad Mumtaz PW-8 that is not convincing for the simple reason that no definite timings whatsoever was mentioned by Muhammad Mumtaz PW-8 but probable time has been mentioned and on the basis of mere probability the statement of an eye witness cannot be thrown away." Therefore, it is held that the evidence of these PWs are natural which is worthy of credence and reliance. 19. The medical evidence in the instant case was furnished by PW-6 Doctor Zafar lqbal Medical Officer who conducted the post mortem examination upon the dead body of the deceased and observed as many as 15 injuries on the person of the deceased. In his opinion the cause of death in this case was haemorrhage and shock due to injuries Nos.1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 collectively. He further deposed that injuries Nos. 1, 2, 4, 5, 7, 8, 9, 10 were caused by fire arms weapon while injury No. 11 was caused by sharp edged weapon while rest of the injuries were caused by blunt weapon. Probable time between injuries and death is 1/2 to one hour…

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