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Petitioner: Yasir Parvez & others VS Respondent: The State
Court Name: Lahore High Court Judge(s): Sardar Ahmad Naeem, Shakil Ahmad Title: Yasir Parvez & others vs The State Case No.:Criminal Appeal No.53173-J, 53156-J of 2017, Murder Reference No.253 of
JUDGMENT
Reported As: 2022 LHC 3266 Result: N/A Judgment JUDGMENT Shakil Ahmad, J. By filing Criminal Appeal No.53173-J of 2017, appellants Yasir Parvaiz, Muhammad Imran and Mukhtar Ahmad whereas through Criminal Appeal No.53156-J of 2017 appella nt Ansar have challenged their convictions and sentences. They were indicted and tried by learned Additional Sessions Judge, Bhalwal on the charge under Sections 302, 396, 412 PPC in case FIR No.281 of 2013 dated 02.07.2013, registered at Police Station City Bhalwal, District Sargodha. Learned trial court, on conclusion of trial vide judgment dated 13.04.2017 (impugned judgment) convicted the appellants and sentenced them as under:- Appellant Yasir Parvez "Convicted under Section 302(b) PPC and sentenced to death with payment of Rs.5,00,000/- as compensation under section 544-A Cr.P.C. to the legal heirs of deceased. In case of default in payment of compensation, to undergo six months simple imprisonment. Appellants Ansar , Muhammad Imran and Mukhtar Ahmad "Each of them convicted under section 302(b) PPC and sentenced to imprisonment for life R.I each with payment of Rs.2,00,000/- each as compensation under section 544-A Cr.P.C. to the legal heirs of deceased. In case of default in payment of compensation, delinquent convict to undergo six months simple imprisonment". All the appellants were convicted under section 396 PPC and sentenced to R.I for ten years each. All the appellants were convicted under section 412 PPC and sentenced to R.I for seven years each. Benefit of section 382-B of Cr.P.C. was given to all the appellants and sentences awarded to them were ordered to run concurrently . Murder Reference No.253 of 2017 has been sent by learned trial court under section 374 Cr.P.C. for confirmation of death sentence awarded to appellant Yasir Parvez. Complainant Sadiq Ali has filed Criminal
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Revision No.183857 of 2018 seeking enhancement of sentence of appellants Ansar, Muhammad Imran and Mukhtar Ahmad. Since all the matters have originated from the impugned judgment dated 13.04.2017, the same are being decided through this single consolidated judgment. 2. Initially , machinery of criminal law was set into motion on written application Ex.P-U moved by Sadiq Ali complainant at police station City, Bhalwal on 02.07.2013 at 12:50 P.M, stating therein on the same day at about 12:00 P.M, he along with his brother Hashmat Ali after drawing an amount of Rs.100,000/- from MCB Bank Bhalwal branch, when were on their way to home on a motorcycle, two persons namely Yasir Parvez and Muhammad Ansar chased them on motorcycle Honda-125 bearing registration No.SGO-1973 and when they reached near Bhaira- Bhalwal Chowk, three companions of above said persons, namely Muhammad Imran, Mukhtar and an unknown on a Honda Motorcycle also started chasing them on the signal given by Yasir Pervaiz and Muhammad Ansar and when they reached in street No.15 Noor Hayat Colony , Bhalwal near their house, Yasir Parvez and Muhammad Ansar came from front side whereas Imran, Mukhtar and an unknown person came from back side and stopped them while taking out their firearms. As per contents of Exh.P-U, Muhammad Imran and Mukhtar gave repeated blows with butts of their pistols on head of Hashmat Ali and the unknown accused gave pistol butt blows on different parts of body of complainant. It was further averred in Ex.P-U that on resistance, Yasir Parvaiz made a fire with pistol which hit on abdomen of complainant' s brother Hashmat, who fell down; hearing report of fire shot as well as hue & cry of complainant and his brother , Shahid Qamar and Sajid Ali residents of Noor Hayat Colony and many other persons attracted the spot, whereupon accused persons after forcibly snatching cash Rs.100,000/- on gun point, fled away . 3. After registration of FIR, investigation was conducted by Muhammad Ashraf S.I (PW-13) who claimed to have registered FIR Exh.PU/1 on the basis of application Exh.PU, prepared injury statement Exh.PM of Hashmat Ali and got himself medically examined by deputing Muhammad Razzaq Constable, proceeded to place of occurrence and inspected the same, secured blood stained earth from place of occurrence throug h recovery memo Exh.PX, took into possession an empty P-16 from the place of occurrence vide recovery memo Exh.PY , prepared rough site plan of place of occurrence Exh.PZ. On 11.07.2017, PW-13 stated to have arrested Muhammad Ansar and Yasir Parvez and obtained their physical remand. On 12.07.2013, Hashmat Ali succumbed to the injuries at Mayo Hospital, Lahore and receiving this information PW-13 said to have recorded Rapt Exh.P AA in the daily diary register and went to Mayo Hospital, Lahore, wherefrom collected death certificate Exh.PR, received the dead body , prepared injury statement Exh.PS and inquest report Exh.PT an after post-mortem examination, Muhammad Razzaq Constable handed over last worn clothe s of deceased and a sealed bottle to PW-13 who took the same into possession vide recovery memos Exh.PM and Exh.PN, respectively . On 13.07.2013, PW-13 stated to have got inspected the place of occurrence by draftsman Muhammad Hafeez and the later after preparing scaled site plan Exh.PF and Exh.PF/1, handed over the same to PW-13. On 19.03.2013, PW-13 claimed to have arrested Muhammad Imran accused and obtained his physical remand. PW-13 stated to have recovered during investigation a pistol 30-bore P-6 along with two live bullets P-7/1-2 on the pointi ng out of Yasir Parvez accused and took the same into possession vide recovery memo Exh.PG, recovered cash Rs.25000/- on the pointing out of Yasir Parvez accused and took the same into possession vide recovery memo Exh.PH, prepared rough site plan of place of recoveries Exh.PBB. PW-13 also claimed to have recovered pistol 30-bore P-1 along with three live bullets P-2/1-3 on the pointing out of Muhammad Ansar accused and took the same into possession vide recovery memo Exh.P A, recovered cash Rs.25000/- on the pointing out of Muhammad Ansar accused and took the same into possession vide recovery memo Exh.PB, recovered Honda Motorcycle on pointing out of accused Muhammad Ansar and took the same into possession through recovery memo Exh.PC, prepared rough site plan of place of recoveries Exh.PCC and thereafter he was transferred. 4. Investigation was then entrusted to Ahmad Yar S.I (PW-12) who stated to have recovered a pistol 30-bore P-4 on the pointing out of Muhammad Imran accused and took the same into possession vide recovery memo Exh.PG, recovered cash Rs.25000/- on the pointing out of Muhammad Imran accused and took the same into possession vide recovery memo Exh.PE, prepared rough site plans of places of recoveries Exh.PW and Exh.PV , respectively and thereafter he was transferred.
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5. Subsequent investigation was conducted by Muhammad Usman S.I (PW-14) who stated to have arrested Mukhtar Ahmad accused and during investigation recovered pistol 32-bore P-9 and two live bullets P-10/1-2 on his pointing out and took the same into possession vide recovery memo Exh.PJ, also recovered cash Rs.15000/- on the pointing out of Mukhtar Ahmad and took the same into possession vide recovery memo Exh.PK, prepared rough site plan of place of recovery Exh.P DD. PW-14 also said to have recovered an amount of Rs.10,000/- from Mukhtar Ahmad accused and took the same into possession vide recovery memo Exh.PL and prepared site plan of place of recovery Exh.PEE. On completion of investigation, report under section 173 Cr.P.C. was submitted before trial court. Appellants were indicted for the offences under sections 302, 396, 412 PPC. They pleaded not guilty and trial commenced. 6. At trial, fifteen PWs were recorded whereas Tasawar Hussain 437/C, Shahid Qamar and Ijaz Mumtaz 1376/C were given up being unnecessary by learned DDPP . 7. Muhammad Jahangir 376/C (PW-1) is attesting witness of recovery memos Exh.PA, Exh.PB, Exh.PC, Exh.PD and Exh.PE. Imtiaz Ahmad 1331/C (PW-2) claimed to have deposited parcel of blood stained earth in the concerned lab. Muhammad Hafeez draftsman (PW-3) claimed to have prepared scaled site plan Exh.PF and Exh.PF/1. Muhammad Yousaf 444/MHC (PW-4) while being posted as Moharrar stated to have received parcel of blood stained earth and handed over to PW-2 for onward transmission. Muhammad Riaz 268/C (PW-5) stated to have executed warrants of arrest and proclamations against Mukhtar Ahmad accused on 23.11.2013 and 11.12.2013, respectively . Muhammad Aslam 716/C (PW-6) is attesting witness of recovery memos Exh.PG and Exh.PH. Zafar Iqbal 1222/C (PW-7) is attesting witness of recovery memos Exh.PJ and Exh.PL. Muhammad Razzaq 484/C (PW-8) stated to have escorted the dead body to mortuary and after autopsy handed over last worn clothes of deceased to the I.O, who took the same into possession vide recovery memo Exh.PM. Ocular account in this case was furnished by Sadiq Ali complainant (PW-10) and Sajid Ali (PW-11). PW-12, PW-13 and PW-14 are the investigators. Nasir Ahmad 1076/C (PW-15) is the attesting witness of recovery memos Exh.PX, Exh.PY , Exh.P A, Exh.PB and Exh.PC. Medical evidence was furnished by Dr. Muhammad Ali (PW-9), who conducted medical examination of Hashmat Ali (the then injured) on 02.07.2013 at 11:15 A.M. and noticed following injuries:- i. A lacerated wound 3-% x 1 cm x bone exposed on left side of head. ii. A lacerated wound 2-% cm x % cm x bone not exposed on left side of head 1.5 cm above injury No.1. iii. A firearm wound of entry 1.5 x 1 cm x going into abdomen on right side 12 cm above umbilicus (corresponding hole was present on Qameez). According to PW-9, injuries No.1 and 2 were inflicted by blunt weapon whereas injury No.3 was caused by firearm weapon and the injuries were fresh. On 12.07.2013, PW-13 conducted post-mortem examination on the dead body of Hashmat Ali and observed as under:- 1. A fire arm wound of entry on right side of abdomen as already mentioned in MLR No.294/13 dated 02.07.2013. 2.a Fifteen stitched silk stitches found on midline of abdomen. 2.b 02 stitched drain holes on right side of abdomen. 2.c One stitched drain hole on left side of abdomen. 2.d One hole on upper part of right chest. 3. Head injury as mentioned in MLR stated above. Cause of death, according to PW -9, was injury No.1. After tendering in evidence report of PFSA Exh.P AA, prosecution evidence was closed by learned DDPP . 8. Statements of appellants were recorded under section 342 Cr.P.C. They controverted and denied the allegations of facts so put to them from the evidence of PWs and professed their innocence. None of the appellants opted to appear in the witness box under section 340(2) Cr.P.C. and also did not chose to produce any evidence in defence except Yasir Parvez appellant but he also did not submit any evidence in his defence. In reply to the question why this case against him and why the PWs had deposed against him, appellant Yasir Pervaiz took the following stance:- "This is a blind murder . I do not know about the occurrence. The private PWs are close relatives to each other . Officials PWs have deposed just to show their progress. I was representative of "Soni Dharti" newspaper.
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I got issued proclamation against PW-11 Sajid Ali and investigating officer Muhammad Ashraf S.I due to which I have been involved in this case. I am innocent in this case." Mukhtar Ahmad appellant while replying the same question, took following stance: - "I have been involved in the instant case by the complainant due to malafide and his ulterior motive. The PWs are close relatives inter se and they have deposed falsely . The complainant has involved me in the instant case on the instigation of his maternal cousin Iftikhar s/o Lal Muhammad Gondal r/o Chak No.9 M.L who is my opponent in the village. " Muhammad Imran appellant did not take any specific plea and only asserted that it was a false case and PWs had deposed falsely . Stance of Muhammad Ansar appellant is as under: - "I am the resident of Chak No.9 M.L and one Nazir is the Lumberdar of my Chak who is inimical towards me and the complainant had relations with him. I have been involved in this case on the asking of above said Nazir by the complainant. PWs are interse. I am innocent and I have no concerned whatsoever with the alleged occurrence." 9. On conclusion of trial, appellants were convicted and sentenced as detailed in opening paragraph of this judgment, hence, these matters. 10. We have heard learned counsel for the parties, learned Deputy District Public Prosecutor and gone through the record with their able assistance. 11. Having heard learned counsel for the parties and learned DDPP , we are constrained to observe, at the outset, that Hashmat Ali initially received fire shot injury and subsequently succumbed to the same, are the facts alone that have been proved by the prosecution at trial and rest of the story qua mode and manner of the occurrence as detailed in application Ex.PU could not at all be proved by the prosecution upto the hilt. As per the contents of Ex.PU, it was on 02.07.2013 at about 12:00 noon when complainant and Hashmat Ali (deceased) were on their way back to home after drawing Rs.100,000/- from MCB Bank Bhalwal Branch and they were initially followed by Yasir and Muhammad Ansar and subsequently by three other persons, two of whom were named as Muhammad Imran and Mukhtar and third one was unknown, whose description was duly given in Ex.PU and when they reached in the street near their house, they were stopped by the said outlaws of whom Muhammad Imran and Mukhtar initially gave butt blows hitting on the various parts of head of Hashmat Ali and unknown person also gave blows with the butt of his pistol hitting on various parts of body of complainant and on resistance Yasir Parvaiz made a fire shot with pistol 30 bore landing on the abdomen of Hashmat Ali who fell down and upon hearing report of fire shot and their uproar , Shahid Qama r, Sajid Ali and many others came at the spot and accused persons after snatching Rs.100,000/- on gunpoint made their escape good. This story , on the face of it, is vague, sketchy and lacking coherence. Complainant failed to specifically mention in Ex.P-U that whether accused persons named in Ex.P-U were in fact previously known to him. During the course of cross exami nation both of the witnesses of ocular account stated that accused person s were previously known to them. Impact of their stance taken during the course of cross examination would be dealt in detail in the later part of this judgment. Complainant has also failed to mention specific seat of injuries said to have been caused by Muhammad Imran and Mukhtar on the head of Hashmat Ali. Even he failed to specifically mention the part of his body where he received butt blows given by the unknown accused person. Complainant has also not stated anything in Ex.PU as to whether any of the accused demanded or asked either from him or from Hashmat Ali for handing over cash amounting to Rs.100,000/-. Complainant failed to specifically mention in Ex.PU as to who was carrying cash Rs.100,000/- which was claimed to have been drawn from the bank and it was also not specifically mentioned that from whom the accused persons forcibly snatched Rs.100,000/-. Even it has not been mentioned in Ex.PU that who of the accused person snatched Rs.100,000/-. It is correct that it was not essential for the complainant to have given each and every detail of the occurrence in the complaint on the basis of which FIR was lodged, however , at the same time it is equally correct that certain necessary and essential details leading to the occurrence are always required to have been mentioned in the application on the basis of which FIR was going to be lodged. It may further be observed that as per contents of FIR, complainant was accompanying his brother Hashmat Ali when they were going back to their home on a motorcycle after drawing cash Rs.100,000/- from MCB Bhalwal Branch and two persons namely Yasir Parvaiz and Muhammad Ansar chased them on motorcycle and when they reached near Bhaira-Bhalwal Chowk, three
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companions of above said persons also started chasing the complainant and his brother on pointing out of said two persons and when they (complainant and his brother) reached near their house, accused persons stopped them and committed the occurrence. Bare reading of the story as narrated in the FIR reflects that complainant and his brother when were going back to their home after taking cash from bank, were vividly alert enough that they had even noticed chasing of Yasir Parvaiz and Muhammad Ansar accused and also noticed that said accused persons pointed towards them when they reached near Bhaira-Bhalwal chowk and thereupon three co-accused Muhammad Imran, Mukhtar and an unknown person also started chasing them. During the course of cross- examination complainant PW-10 stated that the whole area from bank towards their home was populated one and SDPO office was on the way, despite that, as per own showing of PW-10 during cross-examination, they did not make any attempt to report the matter to police. Even no attempt was shown to have been made by complainant and his brother to avoid chase of accused persons by taking shelter at any safe place on the way. Such conduct shown by complainant is against natural human behavior which should be in a situation like reflected in the FIR particularly when fact of chasing of complainant and his brother by the accused was in their knowledge and they were having cash with them said to have been drawn from the bank more particularly where the office of SDPO Bhalwal was situated at a distance of 100 meters from the bank and the presence of traffic police personnel usually at the said chowk was also admitted by Sadiq Ali PW-10. In this backdrop, we now proceed to examine the worth of witnesses of ocular account. Sadiq Ali complainant appeared as PW-10 who besides giving the narration as mentioned in Ex.PU deposed that accused persons after forcibly getting them down from motorcycle asked them to handover the amount which they had brought from the bank. It was further deposed by PW-10 complainant that accused snatched Rs.100,000/- from the deceased forcibly at gunpoint and left the place of occurrence whereafter they shifted Hashmat Ali in injured condition at THQ Hospital Bhalwal and he moved application Ex.PU before the police. He further deposed that his brother Hashmat Ali was referred to DHQ Hospital, Sargodha and was further referred to Mayo Hospital, Lahore where he expired on 12.07.2013. Sadiq Ali PW-10 cautiously made improvements in his examination-in-chief by introducing the fact that accused persons asked them to hand over the amount that they had got from the bank and that accused snatched Rs.100,000/- from the deceased. Both these facts although were not got confronted during the course of cross-examination, however, a judicial notice can be taken as both the improvements, which on the face of it, were dishonest and deliberate, therefore, same cannot be ignored lightly. It is by now settled principle of law that if improvements are found to be deliberate and dishonest, same would cast doubt qua the veracity of the testimony of such witness of ocular account and no reliance can be placed on such testimony for conviction on a charge entailing death penalty for the simple reason that when a witness makes dishonest improvement while deposing before the court, he simply exposes himself to his own dishonesty that ipso facto is sufficient to discard his evidence by counting him a dishonest person. Reliance in this regard may safely be placed on "Fida Hussain and another v. The State and another" (2021 PCr.LJ 174). 12. It may further be shown that complainant Sadiq Ali PW-10 admittedly was posted at Chak No.17 as Patwari Irrigation Department, as such on the day of occurrence, he was supposed to be present at his office whereas in Ex.P-U he was shown to be accompanying Hashmat Ali and also witnessed the occurrence. Claim of complainant qua his presence at the spot, in this view of the matter, makes him a chance witness particularly when it has never been the stance of complainant in his written application Ex.P-U that on the fateful date he in fact was on leave. Chance witness, in legal parlance, was a witness who claimed that he was present at the crime spot at the fateful event notwithstanding, his presence there was sheer per chance as in the ordinary course of events he was supposed to be present at the place of his duty. Testimony of chance witness in such context is ordinarily not accepted unless justifiable reasons were shown to establish his presence at the spot at relevant time. In normal course of events presumption under the law that would operate would be that such witness was not present at the crime spot. For considering the evidence of such witness two essential ingredients are required to be established; firstly that whether witness reasonably explained his presence at the spot and secondly narration of incident as given by such witness should also inspire confidence. Both these essential elements simply are lacking in the instant case inasmuch as neither presence of PW-10 has plausibly been explained and even narration of incident
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given by this PW hardly inspires confidence. Sajid Ali PW-11, in his examination-in-chief attempted to support the stance of PW-10 Sadiq Ali but he skipped to state the improved stance of complainant that accused persons demanded from them to hand over the amount. This PW instead came up with the assertion in his examination-in- chief that accused tried to snatch amount from Hashmat Ali and on his resistance, Yasir Parvaiz fired shot with his pistol. This PW who was nephew of comp lainant, admittedly was posted at Police Post Chak No.4-SB which was at a distance of 2-/2 kilometers from Bhalwal City, was supposed to be present at the place of his duty. No plausible explanation at all has been put forth by PW-11 justifying his presence at the spot during the hours when he was supposed to have been present at Police Post Chak No.4-SB. This PW too would conveniently be counted as a chance witness. It may further be shown that during the course of his cross-examination PW-11 stated that at the time of occurrence, none from the locality was present except them and even they did not try to apprehend the accused persons. The stance of PW-11 that none from the locality was present at the time of occurrence except them, stood clearly contradicted by the statement of Sadiq Ali PW-10 who in his examination-in-chief stated that many other persons of the locality along with Shahid Qamar and Sajid PWs came there upon hearing their hue and cry. Similarly , conduct of Sajid Ali PW-11 that they did not try to apprehend the accused was again unnatural. It is hard to believe that one of near and dear was being injured and robbed and PW-11 simply would have kept standing there like a silent spectator . Pathetic conduct as shown by the PWs of ocular account runs counter to the natural human conduct and behavior in the ordinary course of events. Provisions of Article 129 of Qanun-e- Shahadat Order , 1984 allow the courts to presume the existence of any fact, which it think likely to have happened in the ordinary course of natural events and human conduct in relation to the facts of a particular case. The conduct of witnesses of ocular account in the instant case vividly was contrary to the common course of natural events and human conduct, further suggesting that the witnesses of ocular account were not present at the time of occurrence. Guidance has been sought from case reported as "Pathan v. the State" (2015 SCMR 315). 13. It may also be seen that according to contents of FIR, on hearing the report of a fire shot as well as hue & cry made by them (Complainant and his deceased brother), Shahid Qamar (since given up) and Sajid Ali (PW-11) attracted to the spot along with many other persons. Such narration given in the FIR suggests that the witnesses attracted to the spot after fire shot had been made, as such they cannot be considered to have seen the assailants who made said fire shot. It has never been the case of complainant that Shahid Qamar and Sajid Ali PWs were already present in the street before their arrival. However , during cross-examination, PW-10 volunteered that said witnesses were already present in the street at the time of occurrence. PW-11 Sajid Ali in his cross-examination also stated that he was present in the street where occurrence took place. Such claim of PW-10 and PW-11 is in utter contradiction with the contents of FIR…
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